American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service (Authority decision, October 18, 1991)

Final FLRA decision. This order ends the current negotiability petition without deciding whether the proposal is within the duty to bargain. The dismissal is without prejudice to a new appeal if the conditions for review are met. An aggrieved person may seek judicial review of a final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Border Patrol Council sought a negotiability ruling on a proposal to preserve how driver training scores counted toward graduation from the Border Patrol Academy. The agency said it had never alleged that the proposal was inconsistent with law, rule, or regulation, although the parties disputed whether bargaining was required. The Authority found no negotiability dispute for it to decide. It dismissed the petition without prejudice to another appeal if a reviewable dispute arose, leaving any duty to bargain dispute for another proceeding.

Decision snapshot

• Authority: Review of a negotiability petition under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition concerning Proposal 2 dismissed without prejudice; Proposal 1 had been withdrawn.
• Key point: A dispute about the duty to bargain did not establish the alleged conflict with law, rule, or regulation required for this negotiability appeal.

Full text (FLRA public release)

[ v42 p935 ]
42:0935(67)NG

The decision of the Authority follows:

42 FLRA NO. 67

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL BORDER PATROL COUNCIL (Union)

and

U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
(Agency)

0-NG-1942

ORDER DISMISSING PETITION FOR REVIEW

October 18, 1991

The Union has filed a petition for review of negotiability issues in the above-captioned case. The petition encompasses two proposals relating to an Agency decision to make successful completion of a Driver's Training course a mandatory requirement for graduation from the Border Patrol Academy. As relevant here, Proposal 2 concerns maintenance of the status quo in the manner of calculating and applying driver training course scores to the successful completion of the Border Patrol Academy. 1/ For the following reasons, the Union's petition as to Proposal 2 must be dismissed.

The Authority will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. For example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990) (Newington). Where the conditions for review of negotiability issues are met, a union is entitled to a decision as to whether a proposal is negotiable under the Statute. See American Federation of Government Employees, AFL - CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983).

In this case, the Agency asserts that it has not alleged Proposal 2 to be nonnegotiable. The Union disagrees, relying on an Agency letter dated March 5, 1991, wherein the Agency asserted that "(t)he assigned driving instruction ... is an assignment of work and an exercise of ... internal security authority under 5 USC 7106." Exhibit 8 to Petition for Review.

An examination of the Agency's March 5 letter reveals that the Agency did not allege any specific proposal to be nonnegotiable. It is unclear, in this regard, whether the Union had, in fact, offered specific proposals to the Agency at the time of the March 5 letter. Even assuming that it had, however, the Union did not request an allegation of nonnegotiability until April 24, 1991. In its response to the request, the Agency asserted only that it had no duty to bargain over the proposal and that in the absence of such duty, "any question of nonnegotiability would be moot." Exhibit 11 to petition for review. 2/ The Agency confirms, in this regard, that "it has never asserted that either of the proposals ... in this case are nonnegotiable." Statement of Position at 6. Moreover, the Agency acknowledges that proposals requiring an agency to maintain the status quo during bargaining are negotiable. Id. at 10.

There is no dispute before the Authority as to whether Proposal 2 is inconsistent with law, rule or regulation. Accordingly, the Union's petition for review is dismissed without prejudice to the Union's right to file an appeal if the conditions for review are met and the Union chooses to file such an appeal. See Newington, 38 FLRA at 931 (as agency's allegation that a proposal was moot did not constitute an allegation of nonnegotiability, petition for review was dismissed as to that proposal). To the extent that the parties remain in dispute over whether the Agency has a duty to bargain over the proposal, the dispute should be resolved in other appropriate proceedings. 3/ See id.

For the Authority.

Alicia N. Columna
Director, Case Control Office

FOOTNOTES

Footnote 1/ The Union withdrew Proposal 1 from the petition and filed a separate petition as to it. That petition (0-NG-1967) was dismissed by the Authority because there was no dispute between the parties as to whether the proposal was consistent with law, rule, or regulation. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA No. 58 (1991). Accordingly, only Proposal 2 remains in dispute in this case.

Footnote 2/ The Agency noted that the Union had withdrawn an unfair labor practice charge alleging that the Agency failed to fulfill its obligation to bargain before implementing, as a mandatory requirement for graduation from the Border Patrol Academy, the completion of a driver's training course.

Footnote 3/ The Authority expresses no view on what, if any, proceedings are available to the Union at this time.