AFGE Local 1692 and Air Force Mather Air Force Base (Authority decision, February 14, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing a negotiability appeal without prejudice. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 1692 petitioned for review of two proposals in bargaining with Mather Air Force Base. The Authority held that a negotiability appeal requires a current written agency allegation that a proposal is outside the duty to bargain. The agency's oral statements did not meet that rule, an earlier handwritten note was at best an untimely basis for appeal, and the agency's later written response offered counterproposals rather than declaring the union's proposals nonnegotiable. With no negotiability dispute before it, the Authority dismissed the petition without prejudice. The union may appeal later if the conditions for review are met.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7117 and 5 C.F.R. part 2424.
• Outcome: Petition dismissed without prejudice; no ruling on either proposal's negotiability.
• Key point: A negotiability appeal requires a written agency allegation of nonnegotiability, rather than oral bargaining statements or counterproposals.

Full text (FLRA public release)

[ v39 p572 ]
39:0572(46)NG

The decision of the Authority follows:

39 FLRA NO. 46

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1692 (Union)

and

U.S. DEPARTMENT OF THE AIR FORCE
MATHER AIR FORCE BASE, CALIFORNIA
(Agency)

0-NG-1906

ORDER DISMISSING PETITION FOR REVIEW

February 14, 1991

The Union has filed a petition for review of negotiability issues in the above-captioned case. The Agency has filed a statement of position and the Union has filed a response.

The Authority will consider a petition for review of a negotiability issue under 5 U.S.C. 7117 and 5 C.F.R. Part 2424 only when the parties are in dispute as to whether a Union proposal is inconsistent with law, including the Federal Service Labor - Management Relations Statute (the Statute), rule or regulation. In order to establish that such a dispute exists, a union is required to submit with its petition for review a copy of a written allegation by an agency that a matter sought to be negotiated is inconsistent with law, including the Statute, rule or regulation. 5 C.F.R. 2424.4(a)(3).

The Union may obtain a written allegation of nonnegotiability in two ways. First, a union may make a written request for such an allegation from the agency. 5 C.F.R. 2424.3. Second, the union may file a petition for review from an unsolicited written allegation that a matter sought to be negotiated is deemed to be nonnegotiable by the agency. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723-25 (1990).

The Union filed its petition for review in the above-captioned case with the Authority on December 5, 1990. In its petition for review, the Union claimed that it had requested the Agency's allegations concerning two proposals in a letter dated November 6, 1990, from the Union' National Office. According to the Union, as of the date of the petition for review, the Agency had not responded to the Union's request. The Union attached to its petition for review a letter dated November 16, 1990, from the Agency's Chief Negotiator to the Union in which the Agency's Chief Negotiator stated that he did not consider the request for an allegation of nonnegotiability properly submitted because the request was not signed by an official of the Local or a designated representative of the Local's bargaining team.

In its statement of position, the Agency acknowledged sending the November 16, 1990, letter to the Union. The Agency contends, however, that on November 20, 1990, in a letter from the Agency's Chief Negotiator to the Union's Chief Negotiator, the Agency responded to the Union's November 6, 1990, request for an allegation of nonnegotiability by submitting two counterproposals. The Agency claims further, that it "did not allege that the duty to bargain in good faith did not extend to the two Union proposals." Statement of Position at 3. Thus, the Agency argues that an allegation of nonnegotiability has not been issued. Finally, the Agency argues that if the Authority rejects its arguments that it did not explicitly or constructively declare the Union's proposals to be nonnegotiable, "(t)he (A)gency withdraws the allegation that the duty to bargain in good faith does not extend to the (disputed) proposals...." Id. at 4.

In its reply brief, the Union first contests the Agency's refusal to consider the request of the Union's National Office for an allegation of nonnegotiability properly submitted because the request was not signed by an official of the Local or a designated representative of the Local's bargaining team. The Union argues instead that as the National Office is the authorized agent of the Local, the Agency is required to deal with the Union's agent. Next, the Union argues that the Agency alleged the proposals to be nonnegotiable. According to the Union, an Agency representative at the bargaining table orally declared that the Union's proposal were nonnegotiable. In support, the Union submitted an affidavit by its Chief Negotiator in which he stated that at various times beginning in July 1990 and continuing to September 1990 the Agency's Chief Negotiator orally declared the two Union proposals nonnegotiable.

The Union also attached a hand written note dated September 5, 1990, from the Agency's Chief Negotiator to the Union's Chief Negotiator in which the Agency stated that the two Union proposals were nonnegotiable. Accordingly, the Union argues that its petition for review is properly before the Authority, and that its petition for review should be dismissed "on the basis that the (A)gency has withdrawn its allegations (of nonnegotiability)." Reply brief at 7.

Based on the record, the Union's petition must be dismissed because the Agency has not alleged that the Union's proposals are nonnegotiable. First, as to the claim that the Agency orally declared the Union's proposals nonnegotiable, the Authority's Rules and Regulations provide for the resolution of negotiability appeals on the basis of a written record unless the Authority finds it appropriate to hold a hearing. See 5 C.F.R. Part 2424. Specifically, section 2424.3 of the Authority's Rules and Regulations (5 C.F.R. 2424.3) requires that "the agency shall make the allegation (or nonnegotiability) in writing and serve a copy on the exclusive representative." Thus, whatever may have transpired in oral exchanges between the parties at the bargaining table is not material to the resolution of a negotiability appeal. See, for example, American Federation of Government Employees, AFL - CIO, National Council of Field Labor Locals, Local 3181 and U.S. Department of Labor, Mine Safety and Health Administration, 32 FLRA 1214, 1220 (1988).

Second, it is unclear whether the hand written September 5, 1990, note from the Agency's Chief Negotiator to the Union's Chief Negotiator constitutes a written declaration of nonnegotiability within the meaning of 5 C.F.R 2424.3. In this regard, it is noted that in the last sentence of the note, the Agency's Chief Negotiator stated "(t)he above (discussion of the proposals) is considered informal discussion only. The Union has not requested a formal negotiability determination and none is provided." Moreover, even assuming that the note constitutes a written allegation of nonnegotiability, such allegation was unsolicited and no timely appeal was filed by the Union from the note.

Finally, although the Agency's Chief Negotiator refused on November 16, 1990, to provide a written allegation of nonnegotiability in response to the Union's written request, the Agency's Chief Negotiator subsequently responded to the Union's request on November 20, 1990. In his November 20, 1990, response, the Agency's Chief Negotiator did not declare the Union's proposals to be nonnegotiable. Instead, he submitted two counterproposals and stated generally that "it appears to me that we can reach agreement on these two (Union) proposals with some minor revision." Further, after discussing the proposed modification of each of the two Union proposals, the Agency's Chief Negotiator indicated that the parties "can quickly reach agreement on (each proposal)."

Accordingly, as the Agency has not declared the Union's proposals to be nonnegotiable there is no dispute before the Authority as to whether the Union's proposals in the above-captioned case are within the parties's duty to bargain under 5 U.S.C. 7117. The Union's petition for review is, therefore, 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.

Alicia N. Columna
Director, Case Control Office