20:0505(59)NG - NFFE Local 1363 and Army HQ, Army Garrison, Yongsan, Korea -- 1985 FLRAdec NG

 20 FLRA No. 59
 
 NATIONAL FEDERATION OF 
 FEDERAL EMPLOYEES, LOCAL 1363 
 Union 
 
 and
 
 DEPARTMENT OF THE ARMY, 
 HEADQUARTERS, U.S. ARMY GARRISON, 
 YONGSAN, KOREA 
 Agency 
 
                                         Case No. 0-NG-596
 
                                   ORDER
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues with
 respect to the negotiability of 46 Union proposals.  The Agency appears
 to contend that to negotiate on any of the proposals set forth in the
 petition for review would contravene the general policies of the Status
 of Forces Agreement (SOFA) between the governments of the United States
 and the Republic of Korea.  Subsequent to the filing of the petition for
 review in this case, the President issued Executive Order 12391,
 "Partial Suspension of Federal Service Labor-Management Relations" which
 provided in relevant part:
 
          By the authority vested in me as President by the Constitution
       and statutes of the United States of America, including Section
       7103(b)(2) of Title 5 and Section 301 of Title 3 of the United
       States Code, and having determined that it is necessary in the
       interest of national security to suspend certain labor-management
       relations provisions with respect to overseas activities of the
       Department of Defense, it is hereby ordered as follows:
 
          Section 1.  Suspensions.  With regard to United States citizen
       employees of the Department of Defense, including the Military
       Departments, who are employed outside the United States as defined
       in 5 U.S.C. 7103(a)(18), with the exception of those employed in
       the Republic of Panama:
 
          (a) The provisions of 5 U.S.C. 7105(a)(2)(D), (E), (G), and (H)
       and of 5 U.S.C. 7123(b) are suspended with respect to any matter
       which substantially impairs the implementation by the United
       States Forces of any treaty or agreement, including any minutes or
       understandings thereto, between the United States and the
       Government of the host nation;
 
          (b) The provisions of 5 U.S.C. 7102(2), 7114(a)(1), 7114(a)(4),
       7116(a)(5), and 7117(c) are suspended with respect to any matter
       proposed for bargaining which would substantially impair the
       implementation by the United States Forces of any treaty or
       agreement, including any minutes or understandings thereto,
       between the United States and the Government of the host nation:
 
          (c) The provisions of 5 U.S.C. 7116(a)(7) and 7117(b) are
       suspended with regard to any regulation governing the
       implementation by the United States Forces of any treaty or
       agreement, including any minutes or understandings thereto,
       between the United States and the Government of the host
       nations(.)
 
                                .  .  .  .
 
          Sec. 2.  Disputes.  Disputes between a labor organization and
       the United States Forces as to whether a particular matter is
       covered by one or more of the suspensions set forth in this Order
       shall be referred to the Secretary of Defense.  The decision of
       the Secretary in such disputes shall be made after consultation
       with the Secretary of State and shall be final.  The Secretary of
       Defense may delegate this authority, but only to the Deputy
       Secretary of Defense, an Under Secretary of Defense, or an
       Assistant Secretary of Defense.  The functions assigned to the
       Secretary of State may not be delegated or assigned to anyone
       below the rank of an Assistant Secretary of State.
 
    In view of the apparent relationship between the SOFA and the dispute
 in this case, the Authority requests a statement of the position from
 each party with respect to the applicability of Executive Order 12391 as
 it may pertain to the jurisdiction of the Authority over the instant
 case.
 
    Consequently, IT IS ORDERED that:
 
          The parties shall, no later than 30 days from the date of this
       Order, file with the Authority, and serve the other party with, a
       statement of position which addresses the applicability, if any,
       of Executive Order 12391 to the instant proceeding.
 
    Issued, Washington, D.C., October 17, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY