National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency (Authority decision, July 24, 1989)

Final FLRA decision. The Authority dismisses this negotiability petition without prejudice because the union supplied neither a written nonnegotiability allegation nor proof that the agency failed to answer its request for one. The union may file a new appeal if the review conditions are met. An aggrieved person may seek judicial review of this order by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NFFE Local 2050 asked the Environmental Protection Agency for a written nonnegotiability allegation about four bargaining proposals. The agency replied that it would discuss or negotiate the proposals at the next labor management committee meeting. The union said one proposal had been called nonnegotiable orally and sought Authority review. The Authority found that the agency's written reply did not declare any proposal nonnegotiable and did answer the union's request. It dismissed the petition without prejudice because neither condition for negotiability review was shown.

Decision snapshot

• Authority: Negotiability review requirements under 5 C.F.R. § 2424.4(a)(3).
• Outcome: Petition dismissed without prejudice; no negotiability ruling on the proposals.
• Key point: An oral assertion of nonnegotiability did not replace the required written allegation or proof that the agency failed to respond.

Full text (FLRA public release)

[ v33 p877 ]
33:0877(123)NG

The decision of the Authority follows:

33 FLRA No. 123

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

LOCAL 2050

and

U.S. ENVIRONMENTAL PROTECTION
AGENCY

0-NG-1693

ORDER DISMISSING PETITION FOR
REVIEW

July 24, 1989

The National Federation of Federal Employees, Local 2050 (Union) has filed a petition for review of negotiability issues in the above-referenced case. On May 18, 1989, the Authority directed the Union to show cause why its negotiability appeal should not be dismissed for failure to present a negotiability dispute which can be addressed by the Authority under section 7117 of the Federal Service Labor-Management Relations Statute. The Union timely filed a response to the Order.

On April 4, 1989, the Union requested the Environmental Protection Agency (Agency) to provide a written allegation of nonnegotiability on four proposals. The memorandum concluded by stating, "If we do not receive your written response to this request within [10 days of receipt of the memorandum], this Union will file a petition of review with the appropriate authority." The Agency's written response, dated April 13, 1989, stated that "[w]e will discuss/negotiate these proposals at the next scheduled LMC." The Agency's response does not declare the Union's proposals to be nonnegotiable. In response to the Authority's Show Cause Order, the Union states that Proposal 3 was "orally declared" nonnegotiable by the Agency.

Section 2424.4(a)(3) of the Authority's regulations requires a union to support its negotiability petition with (1) a copy of the agency's written allegation of nonnegotiability on the proposal at issue or (2) a showing that the agency failed to respond to the union's request for such an allegation. Independent Letterman Hospital Workers' Union and Department of the Army, Nutrition Care, Letterman Army Medical Center, 29 FLRA 456 (1987).

The Union's petition for review is not supported by either a written allegation of nonnegotiability from the Agency or a showing that the Agency failed to respond to the Union's request for such an allegation. Accordingly, the petition is dismissed without prejudice to file an appeal if the conditions governing review are met and the Union chooses to file such an appeal. See 5 C.F.R. § 2424.

For the Authority.

________
Clyde B. Blandford, Jr.

Acting Executive Director

FOOTNOTES:
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have footnotes.)