Federal Professional Nurses Association, Local 2707 and U.S. Department of Health and Human Services, Federal Employees Occupational Health, Region III (Authority decision, December 29, 1989)

Final FLRA decision. The Authority dismisses this negotiability petition without prejudice after the agency withdraws its objection to bargaining. 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 Federal Professional Nurses Association sought Authority review after Federal Employees Occupational Health said one of eight union proposals was not negotiable. The agency then withdrew that objection and said it regarded the other proposals as negotiable. The union argued that a dispute remained about proposed nurse reassignments. The Authority held that its negotiability review required a live dispute over whether a union proposal conflicted with law or regulation. It dismissed the petition without prejudice to a later appeal if review conditions arise.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7117 and 5 C.F.R. part 2424.
• Outcome: Petition dismissed without prejudice.
• Key point: Withdrawal of the agency's nonnegotiability allegation left no proposal dispute for Authority review.

Full text (FLRA public release)

[ v34 p71 ]
34:0071(16)NG

The decision of the Authority follows:

34 FLRA NO. 16

FEDERAL PROFESSIONAL NURSES ASSOCIATION LOCAL 2707

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES FEDERAL EMPLOYEES OCCUPATIONAL HEALTH REGION III

0-NG-1750

ORDER DISMISSING PETITION FOR REVIEW

December 29, 1989

The Federal Professional Nurses Association, Local 2707 (Union) has filed a petition for review of negotiability issues in the above-referenced case.

On August 25, 1989, the Union requested a written allegation of nonnegotiability from the U.S. Department of Health and Human Services, Division of Federal Employee Occupational Health, Region III (Agency) on eight proposals. The Agency in its August 29, 1989, response to the Union declared one proposal, No. 7, to be nonnegotiable. On September 12, 1989, the Union filed its petition for review of negotiability issues. On October 12, 1989, the Agency, in its motion to dismiss the Union's petition for review, withdrew its allegation of nonnegotiability on proposal No. 7. The Agency further states that it "does not consider the other proposals to be non-negotiable".

The Union, in its response, contends that its petition should not be dismissed. According to the Union, the Agency does not intend to negotiate over the issue of the legality of the proposed nurse reassignments. Further, the Union contends that the Authority "is empowered under 5 U.S.C. 7117 to consider a negotiability issue where, as in this case, the Union alleges that Management's proposal violates applicable law."

The Authority will consider a petition for review of a negotiability issue only when the parties are in dispute as to whether a union proposal is inconsistent with law, including the Statute, rule or regulation. In the present case, the Agency withdrew its allegation that Proposal 7 is nonnegotiable and has stated that it does not consider any of the other Union proposals to be nonnegotiable.

Accordingly, there is no dispute before the Authority as to whether the Union's proposals are inconsistent with law, rule or regulation. The Union's petition for review is dismissed without prejudice to the Union's right 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. part 2424.

For the Authority.

Clyde B. Blandford, Jr.
Acting Executive Director