National Federation of Federal Employees, Local 341 and Department of the Interior, Wapato Irrigation Project and Yakima Agency, Bureau of Indian Affairs (Authority decision, November 28, 1988)

Final FLRA decision. The Authority dismisses the union's negotiability petition as premature because the record did not establish a written agency allegation of nonnegotiability or a documented failure to supply one. 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

NFFE Local 341 sought review of a wage bargaining proposal involving the Wapato Irrigation Project and Yakima Agency. The union said the agency had orally called the proposal nonnegotiable but had not answered a written request for a written allegation. After the Authority asked it to cure the filing deficiency, the union supplied an unaddressed handwritten note and no further documentation of an unanswered request. The Authority found that the record did not meet the conditions for negotiability review. It dismissed the petition as premature without deciding the proposal's negotiability.

Decision snapshot

• Authority: Negotiability review conditions under 5 U.S.C. § 7117 and former 5 C.F.R. § 2424.1.
• Outcome: Petition dismissed as premature; proposal's negotiability not decided.
• Key point: An unaddressed note did not establish the required written allegation or agency failure to provide one.

Full text (FLRA public release)

[ v33 p830 ]
33:0830(98)NG

The decision of the Authority follows:

33 FLRA No. 98

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

LOCAL 341

and

DEPARTMENT OF THE INTERIOR

WAPATO IRRIGATION PROJECT AND THE YAKIMA
AGENCY

BUREAU OF INDIAN AFFAIRS

0-NG-1585

ORDER

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 during the course of wage negotiations the Union submitted its proposal to the Agency. The Union claims that the Agency orally declared the Union's proposal nonnegotiable, but did not respond to the Union's written request for a written allegation of nonnegotiability. The Union then filed its petition for review with the Authority without a written allegation of nonnegotiability.

On October 7, 1988, the Authority issued an Order informing the Union of the deficiency in its petition for review and directed the Union to cure the deficiency. The Union responded by letters dated October 13 and 21, 1988.

In its submissions, the Union submits a copy of the August 8, 1988, handwritten note requesting a negotiability determination on its proposal. The Union fails to indicate whether further attempts were made to obtain a written allegation of nonnegotiability pursuant to the Authority's Order of October 7, 1988. Since the handwritten note submitted by the Union does not contain an addressee, it cannot be considered admissible.

The Authority has previously held an allegation of nonnegotiability to be a prerequisite for the Authority's review of a negotiability issue. See American Federation of County, State and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 n.1 (1983). Thus, the conditions governing review of a negotiability issue include a requirement that there be an "alleg[ation] that the duty to bargain in good faith does not extend to the matter proposed to be bargained."

In absence of any further documentation by the Union of the Agency's failure to provide a written allegation of nonnegotiability, we conclude that the Union's petition for review was prematurely filed and does not meet the conditions for review set forth in 5 U.S.C. § 7117 and 5 C.F.R. § 2424.1. 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.)