09:1086(157)NG - NFFE Local l430 and Navy, Northern Division, Naval Base, Philadelphia, PA -- 1982 FLRAdec NG

 9 FLRA No. 157
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1430
 (Union)
 
 and
 
 DEPARTMENT OF THE NAVY, NORTHERN
 DIVISION, U.S. NAVAL BASE,
 PHILADELPHIA, PENNSYLVANIA
 (Agency)
 
                                            Case No. O-NG-659
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION
 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS ON A PETITION FOR REVIEW
 OF NEGOTIABILITY ISSUES FILED BY THE UNION.  FOR THE REASONS INDICATED
 BELOW, IT HAS BEEN DETERMINED THAT THE UNION'S PETITION MUST BE
 DISMISSED.
 
    FROM THE SUBMISSION OF THE PARTIES IN THE RECORD BEFORE THE
 AUTHORITY, IT APPEARS THAT DURING THE TERM OF THE PARTIES' NEGOTIATED
 AGREEMENT, THE AGENCY AND THE UNION AGREED TO INSTITUTE A NEW APPROVAL
 PROCEDURE FOR INCENTIVE AWARDS, WHICH WOULD SERVE TEMPORARILY, ON A
 TRIAL BASIS, AS A SUBSTITUTE FOR THE APPROVAL PROCEDURE FOR INCENTIVE
 AWARDS, WHICH WOULD SERVE TEMPORARILY, ON A TRIAL BASIS, AS A SUBSTITUTE
 FOR THE APPROVAL PROCEDURE SET FORTH IN THEIR CONTRACT.  AFTER THE TRIAL
 PERIOD WAS COMPLETED, THE AGENCY PROPOSED THAT THE SUBSTITUTE PROCEDURE
 CONTINUE IN EFFECT FOR ANOTHER YEAR.  THE UNION DID NOT AGREE AND THE
 INSTANT DISPUTE BETWEEN THE PARTIES AROSE.
 
    AFTER EFFORTS OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO
 RESOLVE THE DISPUTE PROVED UNSUCCESSFUL, THE UNION FILED A REQUEST FOR
 ASSISTANCE WITH THE FEDERAL SERVICE IMPASSES PANEL.  IN RESPONSE TO A
 REQUEST FROM THE PANEL, THE AGENCY SET FORTH PROPOSALS TO BE SUBSTITUTED
 FOR THE PERTINENT CONTRACT PROVISION.  THE AGENCY INDICATED THAT THE
 REASON FOR WANTING TO MAKE THE CHANGE WAS THE ASSERTED OVERALL SUCCESS
 OF THE TRIAL PROGRAM. THE UNION, ON THE OTHER HAND, CONTENDED THAT IT
 HAD NO DUTY TO BARGAIN WITH THE AGENCY ON THE MATTER, AS THE PROVISION
 IN THE PARTIES' CONTRACT GOVERNING INCENTIVE AWARD PROCEDURES WAS STILL
 IN EFFECT, AND THE CONTRACT COULD NOT BE REOPENED FOR NEGOTIATIONS
 EXCEPT BY MUTUAL CONSENT OF THE PARTIES OR BY REASON OF A CHANGE IN LAW
 OR REGULATION SUBSTANTIALLY AFFECTING THE CONTRACT.  THE PANEL DECLINED
 TO ASSERT JURISDICTION OVER THE MATTER IN VIEW OF THE THRESHOLD QUESTION
 CONCERNING THE UNION'S OBLIGATION TO BARGAIN.  THE UNION THEN FILED THE
 INSTANT PETITION FOR REVIEW WITH THE AUTHORITY.
 
    IT APPEARS THAT THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
 THIS CASE IS NOT A QUESTION OF NEGOTIABILITY BUT, RATHER, A QUESTION OF
 THE UNION'S OBLIGATION TO BARGAIN ON THE SUBSTITUTE INCENTIVE AWARDS
 PROCEDURE IN THE CIRCUMSTANCES DESCRIBED, OR A QUESTION OF THE
 INTERPRETATION AND APPLICATION OF THE RELEVANT PROVISIONS IN THE
 PARTIES' AGREEMENTS.  TO THE EXTENT THAT THE DISPUTE INVOLVES A QUESTION
 OF THE UNION'S OBLIGATION TO BARGAIN ON THE AGENCY'S PROPOSAL, THE
 PROPER FORUM IN WHICH TO RESOLVE SUCH A QUESTION IS THROUGH UNFAIR LABOR
 PRACTICE PROCEDURES AND NOT NEGOTIABILITY CASE PROCEDURES.  (SEE, E.G.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
 OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 7 FLRA NO. 91(1982)).
 TO THE EXTENT THAT THE CASE INVOLVES A QUESTION OF THE INTERPRETATION
 AND APPLICATION OF THE PARTIES' AGREEMENTS, HERE AGAIN A NEGOTIABILITY
 APPEAL IS NOT THE PROPER FORUM TO RESOLVE SUCH QUESTIONS.  RATHER, THE
 PARTIES MIGHT WISH TO UTILIZE THE PROCEDURES THEY MAY HAVE ADOPTED IN
 THEIR AGREEMENTS FOR RESOLVING SUCH ISSUES.  (SEE. E.G., AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT
 OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA
 182(1979)).
 
    BASED ON THE FOREGOING, THE UNION'S PETITION FOR REVIEW DOES NOT
 PRESENT ISSUES WHICH THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS
 TIME UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF THE RULES AND
 REGULATIONS.  ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE DISPUTE
 AND APART FROM OTHER CONSIDERATIONS,
 
    IT IS HEREBY ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT
 HEREBY IS, DISMISSED.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR