International Brotherhood of Electrical Workers, Local 1245 and U.S. Department of the Interior, Bureau of Reclamation (Authority decision, April 15, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

IBEW Local 1245 asked the Bureau of Reclamation whether pay increases above amounts set by executive order or Congress could be negotiated or grieved. The union treated the agency's general answer about applicable law as an allegation that bargaining was barred and petitioned the Authority. The Authority held that the union had offered no specific bargaining proposal on which it could decide negotiability. It dismissed the petition as premature, explaining that a ruling on the abstract question would be an impermissible advisory opinion.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7117.
• Outcome: Petition for review dismissed as premature.
• Key point: A negotiability appeal requires a sufficiently specific proposal, not a general question about possible bargaining.

Full text (FLRA public release)

[ v17 p552 ]

17:0552(82)NG

The decision of the Authority follows:

17 FLRA No. 82

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1245
Union

and

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Activity

Case No. 0-NG-1108

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 on a petition filed by the Union for review of an alleged negotiability dispute with the Activity. For the reasons stated below, the Union's petition for review must be dismissed.

It appears from the Union's submissions that it sought an answer from the Activity to the question whether any pay increase over the amount set by Executive Order or Act of Congress is not subject to negotiations or to the parties' negotiated grievance and arbitration procedure. The Activity's response was that any wage adjustment is limited by the terms and conditions of any applicable law or Executive Order in effect at the time the adjustment is negotiated or effective. Treating that response as the Activity's allegation of nonnegotiability, the Union filed the petition for review in this case.

Section 2424.1 of the Authority's Rules and Regulations, which implements section 7117 of the Statute, provides, in pertinent part:

Sec. 2424.1 Conditions governing review

The Authority will consider a negotiability issue under the conditions prescribed by 5 U.S.C. 7117(b) and (c), namely: 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 proposed to be bargained because, as proposed, the matter is inconsistent with law, rule or regulation, the exclusive representative may appeal the allegation to the Authority(.)

Further, it is well-established that a petition for review of a negotiability issue which does not present a proposal sufficiently specific and delimited in form and content as to permit the Authority to render a negotiability decision thereon does not meet the conditions for review set forth in section 7117 of the Statute and section 2424.1 of the Authority's Rules and Regulations. See, e.g., Association of Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA 314 (1979).

Thus, the conditions governing review of a negotiability issue include a requirement that there be "a matter proposed to be bargained," and that the proposal must be specific in form and content so as to enable the Authority to determine whether the proposal is negotiable under the Statute. See, e.g., Federal Employees Metal Trades Council and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 10 FLRA 407 (1982).

It has been determined that the circumstances here involved do not give rise at this time to a ripe negotiability dispute upon which the Authority can rule. In this case, the dispute between the parties is not sufficiently delineated to form a basis for a negotiability determination by the Authority. As described above, while the Union may have sought to negotiate with the Activity concerning wage adjustments in excess of the Federal wage cap, it did not propose any specific language for negotiation. Therefore, it is clear that the Union's petition for review was prematurely filed and does not meet the conditions for review set forth in section 7117 of the Statute and section 2424.1 of the Authority's Rules and Regulations and must be dismissed on that basis. Moreover, to decide the issue presented in the instant case under the circumstances described would be tantamount to issuing an advisory opinion, which is precluded by section 2429.10 of the Authority's Rules and Regulations.

Accordingly, and apart from other considerations, the Union's petition for review is hereby dismissed. For the Authority. Issued, Washington, D.C., April 15, 1985 Harold D. Kessler, Managing Director for Case Processing