American Federation of Government Employees, Local 491 and Veterans Administration Medical Center, Bath, New York (Authority decision, October 2, 1987)

Final FLRA decision. The Authority dismisses the union's petition for negotiability review because it identified no specific proposal for the Authority to decide. 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).

Plain-English summary

The Bath VA Medical Center planned to change how part-time food service workers were selected for full-time positions. AFGE Local 491 opposed the change and asked for negotiations. It then petitioned the Authority for a negotiability ruling. The Authority found that the union had never submitted specific proposal language, so there was no sufficiently defined proposal to review. It dismissed the petition as premature without deciding whether the staffing change was negotiable.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. §§ 7105(a)(2)(E) and 7117(c).
• Outcome: Petition dismissed as premature.
• Key point: A negotiability appeal needs specific proposed language that the Authority can evaluate.

Full text (FLRA public release)

[ v29 p462 ]
29:0462(44)NG

The decision of the Authority follows:

29 FLRA NO. 44

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 491

Union

and

VETERANS ADMINISTRATION MEDICAL
CENTER, BATH, NEW YORK

Activity

Case No. 0-NG-1420

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 for review must be dismissed.

The record before the Authority shows that on December 3, 1986, the parties entered into a written Agreement, which provides in pertinent part:

1. The Activity has proposed a change in the practice in Dietetics
   service by which permanent part-time WG-2 Food Service Workers are selected for conversion to permanent full-time food Service Workers, WG-2.

2. The Union will have fifteen (15) days from the date of this agreement
   to submit its bargaining proposals relative to the Activity's proposal.

3. The Activity intends to take the position in any negotiations
   hereunder that its decision to change the existing practice referenced above in paragraph one is non-negotiable.

By letter to the Activity dated December 16, 1986, the union presented a number of what best can be characterized as arguments why the the Activity should not proceed with its proposed change concerning the conversion of part-time employees to full-time as set forth in paragraph one of the parties' Agreement of December 3, 1986. The Union did not request an allegation of nonnegotiability from the Activity, rather it requested "time and meeting place to negotiate these proposals." Likewise, in its letter to the Activity dated June 12, 1987, the Union did not request an allegation of nonnegotiability, rather it stated that, "Local 491 is requesting negotiations on the conversion of part-time to full-time employees in Dietetics Service." On June 26, 1987, the Union filed its petition for review with the Authority. On July 17, 1987, the Union filed with the Authority a letter to the Union from the Activity dated June 29, 1987. The June 29th letter among other matters contained an unsolicited declaration that the conversion of part-time to full-time employees in the Dietetic Service is nonnegotiable.

It is well established that a petition for review 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(c) of the Statute and section 2424.1 of the Authority's Rules and Regulations. See, e.g., Maritime/Metal Trades Council and Panama Canal Commission, 18 FLRA 326 (1985); and Fort Bragg Unit of North Carolina Association of Educators. National Education Association and Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519 (1983). 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).

In this case, the dispute between the parties is not sufficiently delineated to form a basis for a negotiability determination by the Authority. While it is clear from the union's communications with the Activity that it did not want the Activity to implement the proposed change as set forth in paragraph one of the parties' written Agreement, and that the Union sought to negotiate with the Activity over the proposed change, it is also clear that the Union never proposed any specific language for negotiation. See, e.g., American Federation of Government Employees, AFL - CIO, Local 1361 and Department of the Air Force and Air Force Plant Representative's Office (DET 27), General Dynamics, Fort Worth, Texas, 11 FLRA 357 (1983). It is therefore 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.

Accordingly, apart from other considerations, the Union's petition for review is hereby dismissed.

For the Authority.

Issued, Washington, D.C., October 2, 1987

Harold D. Kessler
Director of Case Management