Overseas Education Association and U.S. Department of Defense Dependents Schools (Authority decision, September 13, 1991)

Final FLRA decision. This order ends the present negotiability appeal without prejudice to a new appeal if the conditions for review are later met. An aggrieved person may seek judicial review of a final Authority order by petitioning 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 order unless the court orders a stay under § 7123(c).

Plain-English summary

The Overseas Education Association asked the Authority to review whether proposals involving Defense Dependents Schools were negotiable. The agency said it had not declared the proposals outside its duty to bargain. The union acknowledged that the dispute appeared to concern the level at which bargaining should occur and said it would seek clarification through grievance and arbitration. The Authority held that its negotiability review requires a dispute over whether a proposal conflicts with law, rule, or regulation. Because the agency had made no such claim, it dismissed the petition without prejudice to a later appeal if review conditions are met.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7117(a) and 5 C.F.R. §§ 2424.1 and 2424.4.
• Outcome: Petition dismissed without prejudice; no ruling on the proposals' negotiability.
• Key point: A dispute over where to bargain does not itself establish the statutory conditions for a negotiability appeal.

Full text (FLRA public release)

[ v42 p162 ]
42:0162(9)NG

The decision of the Authority follows:

42 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

OVERSEAS EDUCATION ASSOCIATION
(Union)

and

U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS (Agency)

0-NG-1948

ORDER DISMISSING PETITON FOR REVIEW

September 13, 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 on the Union's petition, and the Union has filed a response. For the reasons set out below, the Union's petition for review must be dismissed.

Part 2424 of the Authority's regulations, which governs petitions for review of negotiability issues, contemplates that proposals that are the focus of a dispute must have been subject to a declaration of nonnegotiability by the agency involved prior to the union's filing a negotiability appeal with the Authority. See, for example, American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 36 FLRA 82 (1990).

The Agency, in its statement of position, states it has not declared "the matters . . . to be outside the obligation to bargain". In addition, the Union, in its response to the Agency's statement of position states:

Since management's representative has stated in the agency's position dated July 16, 1991[,] that the proposals are negotiable at the national level, it would appear that the dispute is over which level is appropriate for the bargaining of these proposals. The [Union] will pursue clarification of the negotiated agreement through the grievance and arbitration process.

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. 5 U.S.C. § 7117(a); 5 C.F.R. § 2424.1. American Federation of Government Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA 768, 769 (1987).

In this case, the Agency does not allege that the duty to bargain in good faith does not extend to the matter proposed to be bargained because, as proposed, the matter is inconsistent with law, rule, or regulation. Therefore, the Union's petition for review does not meet the conditions for review set forth in section 7117 of the Federal Service Labor-Management Relations Statute and sections 2424.1 and 2424.4 of the Authority's Regulations.

Accordingly, 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. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990).

For the Authority.

Alicia N. Columna
Director, Case Control Office