Veterans Administration Medical Center, Salisbury, North Carolina (Activity) and American Federation of Government Employees, AFL-CIO, Local 1738 (Union)

 2 FLRA No. 54
 
 VETERANS ADMINISTRATION MEDICAL CENTER,
 SALISBURY, NORTH CAROLINA
 (Activity)
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1738
 (Union)
 
                                            Case No. 0-NG-179
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    DURING THE COURSE OF NEGOTIATIONS BETWEEN THE VETERANS ADMINISTRATION
 MEDICAL CENTER, SALISBURY, NORTH CAROLINA (THE ACTIVITY) AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1738(THE UNION), THE
 ACTIVITY SUBMITTED TWO RELATED PROPOSALS TO THE UNION CONCERNING
 EMPLOYEES SERVING AS UNION STEWARDS.  IN RESPONSE, THE UNION DECLARED
 THE TWO PROPOSALS "NONNEGOTIABLE." THE ACTIVITY THEREAFTER FILED THE
 INSTANT NEGOTIABILITY APPEAL WITH THE AUTHORITY, ASSERTING THAT NOTHING
 IN THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 SPECIFICALLY PRECLUDES AGENCY MANAGEMENT FROM SEEKING REVIEW OF
 PROPOSALS DETERMINED BY THE UNION TO BE NONNEGOTIABLE.  IN ITS STATEMENT
 OF POSITION, THE UNION CONTENDED THAT THE ACTIVITY LACKS STANDING TO
 FILE THE APPEAL HEREIN UNDER THE STATUTE AND THE AUTHORITY'S
 REGULATIONS.  THE AUTHORITY CONCLUDES THAT THE ACTIVITY'S PETITION FOR
 REVIEW MUST BE DISMISSED.
 
    SECTION 7117(C)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART, THAT "
 . . . IF AN AGENCY INVOLVED IN COLLECTIVE BARGAINING WITH AN EXCLUSIVE
 REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT
 EXTEND TO ANY MATTER, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
 ALLEGATION TO THE AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF THIS
 SUBSECTION." SECTION 7117(C)(2) FURTHER PROVIDES THAT "(T)HE EXCLUSIVE
 REPRESENTATIVE MAY, ON OR BEFORE THE 15TH DAY AFTER THE DATE ON WHICH
 THE AGENCY FIRST MAKES THE ALLEGATION REFERRED TO IN PARAGRAPH (1) OF
 THIS SUBSECTION, INSTITUTE AN APPEAL . . . " THE FOREGOING PROVISIONS OF
 THE STATUTE, AS FINALLY ENACTED AND SIGNED INTO LAW, ARE IDENTICAL TO
 SECTION 7117(C)(1) AND (2) IN THE FINAL VERSION OF THE BILL PASSED BY
 THE HOUSE, /1/ AS ADDED BY THE "UDALL SUBSTITUTE" DURING FLOOR
 CONSIDERATION OF H.R. 11280.  IN OFFERING THIS AMENDMENT, REPRESENTATIVE
 UDALL STATED:  /2/
 
    SECTION (C) OF THE SUBSTITUTE PROVIDES AN EXPEDITED APPEALS SYSTEM
 FOR RESOLVING
 
    NEGOTIABILITY DISPUTES OTHER THAN THOSE INVOLVING "COMPELLING NEED"
 DETERMINATIONS.  THE
 
    REPORTED TITLE VII PROVIDES THAT SUCH DISPUTES BE RESOLVED THROUGH
 THE UNFAIR LABOR PRACTICE
 
    MECHANISM.  THE SUBSTITUTE PROVIDES THAT AN EXCLUSIVE REPRESENTATIVE
 MAY APPEAL AN AGENCY'S
 
    ALLEGATION OF NON-NEGOTIABILITY TO THE AUTHORITY.  THE APPEAL MAY BE
 FILED, ON OR BEFORE THE
 
    15TH DAY AFTER THE DATE ON WHICH THE AGENCY FIRST MAKES ITS
 ALLEGATION, BY FILING A PETITION
 
    WITH THE AUTHORITY AND FURNISHING A COPY TO THE HEAD OF THE AGENCY.
 ON OR BEFORE THE 15TH DAY
 
    AFTER THE AGENCY HEAD RECEIVES THE COPY OF THE PETITION, THE AGENCY
 MUST FILE A STATEMENT WITH
 
    THE AUTHORITY EITHER WITHDRAWING THE ALLEGATION OR SETTING FORTH IN
 FULL ITS REASONS
 
    SUPPORTING THE ALLEGATION.  A COPY IS TO BE FURNISHED TO THE
 EXCLUSIVE REPRESENTATIVE, WHICH
 
    THEN HAS 15 DAYS TO FILE A RESPONSE WITH THE AUTHORITY.  THE
 AUTHORITY SHALL EXPEDITE
 
    PROCEEDINGS TO THE EXTENT PRACTICABLE AND SHALL ISSUE A WRITTEN
 DECISION AND SUPPORTING
 
    REASONS AT THE EARLIEST PRACTICABLE DATE.
 
    THE CLEAR LANGUAGE AND RELATED LEGISLATIVE HISTORY OF SECTION 7117(C)
 PROVIDE THAT AN EXCLUSIVE REPRESENTATIVE MAY APPEAL AN AGENCY'S
 ALLEGATION OF NONNEGOTIABILITY TO THE AUTHORITY.  NOTHING CONTAINED
 THEREIN, HOWEVER, SUGGESTS THAT CONGRESS INTENDED TO PERMIT AN AGENCY TO
 FILE A NEGOTIABILITY APPEAL WITH THE AUTHORITY.  CONSISTENT WITH THE
 FOREGOING, SEC. 2424.2 OF THE AUTHORITY'S REGULATIONS /3/ SPECIFIES
 "(W)HO MAY FILE A PETITION" AS FOLLOWS:
 
    A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE MAY BE FILED BY AN
 EXCLUSIVE REPRESENTATIVE
 
    WHICH IS A PARTY TO THE NEGOTIATIONS.
 
    THEREFORE, SINCE THERE IS NO BASIS IN THE LANGUAGE OR LEGISLATIVE
 HISTORY OF SECTION 7117(C) OF THE STATUTE FOR AN AGENCY TO FILE A
 NEGOTIABILITY APPEAL AND THE AUTHORITY'S REGULATIONS DO NOT PROVIDE THAT
 AN AGENCY MAY DO SO, THE ACTIVITY'S PETITION IS NOT PROPERLY BEFORE THE
 AUTHORITY FOR REVIEW IN THE INSTANT CASE AND IS HEREBY DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
    /1/ 124 CONG.REC.H 9629 (DAILY ED. SEPT. 13, 1978).
 
    /2/ 124 CONG.REC.H 9635 (DAILY ED. SEPT. 13, 1978).
 
    /3/ 44 FED.REG. 44765(1979).