American Federation of Government Employees, AFL-CIO, Local 2362 and Department of the Navy, Navy Clothing and Textile Research Facility (Authority decision, October 21, 1988)

Final FLRA decision. This order dismisses the union's negotiability petition without deciding whether the temporary leave transfer program is within the duty to bargain. An aggrieved person may seek judicial review of a reviewable final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a); filing does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The Navy Clothing and Textile Research Facility issued a notice about a temporary leave transfer program. AFGE Local 2362 submitted comments saying the matter was negotiable, then petitioned the Authority for a negotiability ruling. The Authority dismissed the petition because the union had not obtained the written allegation of nonnegotiability required by its rules. The Navy had said it considered the program negotiable and later canceled the notice at the union's request. With no agency claim that the matter was outside the duty to bargain, the Authority found no negotiability dispute to decide.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E) and petition requirements under 5 C.F.R. § 2424.3.
• Outcome: Union's petition for review dismissed.
• Key point: A negotiability petition requires a written agency allegation of nonnegotiability, and the Navy had not disputed negotiability.

Full text (FLRA public release)

[ v33 p227 ]
33:0227(25)NG

The decision of the Authority follows:

33 FLRA No. 25

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

AFL-CIO

LOCAL 2362

and

DEPARTMENT OF THE NAVY

NAVY CLOTHING AND TEXTILE RESEARCH
FACILITY

0-NG-1578

ORDER DISMISSING PETITION FOR REVIEW

This matter is before the Authority pursuant to 5 U.S.C. § 7105(a)(2)(E) on a petition for review of a negotiability issue filed by the Union. The Union has failed to provide a written allegation of nonnegotiability from the Agency. Therefore, the petition must be dismissed.

The record indicates that on or about April 27, 1988, the Department of the Navy issued OCPM Notice 12630, "Temporary Leave Transfer Program." On June 6, 1988, the Union submitted to the Agency what appears to be comments to the proposed NCTRF notice stating in part ". . . This matter is negotiable. . . ." The Agency responded to the Union's memorandum on July 18, 1988, informing the Union that their comments were ". . . considered and reviewed." The Union then filed a petition for review with the Authority on July 28, 1988, for a ruling on whether the leave transfer program was negotiable.

On September 7, 1988, the Authority issued an Order informing the Union of deficiencies in its petition for review and directed the Union to cure those deficiencies. The Union responded by letter dated September 9, 1988.

Based upon submissions provided by the Union, it is clear that the Union filed its petition for review without a written allegation of nonnegotiability from the Agency as required by 5 C.F.R. § 2424.3. It should be noted that the Union requested a written allegation of nonnegotiability from the Agency in a memorandum dated August 18, 1988. However, in a memorandum dated August 17, 1988, the Agency stated that they considered the temporary leave transfer program to be negotiable. Further, in a memorandum dated September 2, 1988, the Activity cancelled its OCPM Notice 12630, at the request of the Union.

Under these circumstances, i.e., since the Agency has stated in effect that it does not view the issue as nonnegotiable, there is no issue as to whether this proposal is within the duty to bargain under the Statute. See, Federal Union of Scientists and Engineers, National Association of Government Employees and Department of the Navy, 19 FLRA 810 (1985). Accordingly, the Union's petition for review is dismissed.

For the Authority.

Issued, Washington, D.C.,

_________
Clyde B. Blandford,
Jr.
Acting Executive Director

FOOTNOTES:
(If blank, the decision does not
have footnotes.)