American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service (Authority decision, October 11, 1991)

Final FLRA decision. This order ends the current negotiability petition without deciding whether the bargaining site 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 asked the Authority to rule on a proposal about where the union and the agency would negotiate. The agency said it had not alleged that the proposal conflicted with law, rule, or regulation and withdrew any earlier allegation to that effect. The Authority held that no negotiability dispute remained for it to decide. It dismissed the petition without prejudice to a new appeal if the conditions for review arose, leaving the proposal's merits undecided.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7117.
• Outcome: Petition dismissed without prejudice.
• Key point: Without a live claim that the proposal conflicted with law, rule, or regulation, the Authority would not decide negotiability.

Full text (FLRA public release)

[ v42 p857 ]
42:0857(58)NG

The decision of the Authority follows:

42 FLRA NO. 58

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

and

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

0-NG-1967

ORDER DISMISSING PETITION FOR REVIEW

October 11, 1991

The Union has filed a petition for review of a negotiability issue in the above-captioned case which involves a "ground rule proposal concerning the site at which negotiations over changes in conditions of employment proposed by the Agency would be conducted." Petition for Review at 1. The Agency has filed a statement of position and the Union has filed a response. For the reasons set out below, the Union's petition must be dismissed.

The Agency asserts that it "does not now, and never has, taken the position that the Union's proposal as to the locus of bargaining 'is inconsistent with law, rule or regulation,'...." Statement of Position at 2. Moreover, the Agency states that "(e)ven if .... the Union could have demonstrated that at some time in the past the (Agency) had declared that this specific proposal was 'inconsistent with law, rule or regulation,' the (Agency) ... withdraws any such declaration." Id. at 3. Rather, the Agency claims that, in its response to the Union's request for a declaration of nonnegotiability, it stated only that as "there was no ongoing bargaining, (over the claimed change in conditions of employment) it had no obligation to bargain on ground rules ... (concerning) where the bargaining would take place." Id. at 5. Consequently, the Agency concludes that as it has not determined that the Union's proposal is inconsistent with law, rule or regulation, the Authority should dismiss the Union's petition for review.

The Union disputes the Agency's claim that the Agency did not declare the Union's proposal nonnegotiable. According to the Union, the record establishes that "the Agency clearly alleged that all aspects of the Union's proposals were nonnegotiable." Response at 4. The Union claims, therefore, that the Agency's allegation of nonnegotiability concerning substantive matters "is necessarily an allegation that the duty to bargain did not extend to the Union's ground rule proposal." Id. at 4. The union argues further, that notwithstanding the Agency's withdrawal of its allegation of nonnegotiability "the instant appeal should not be dismissed, as the time for filing an unfair labor practice charge over the initial refusal to bargain has lapsed." Id. at 5. Although the Union states that "it was not prejudiced in the instant circumstance, as an unfair labor practice charge was filed in a timely manner(,)" the Union contends that dismissing its appeal would encourage "agencies to submit frivolous claims of nonnegotiability with the intent of withdrawing such claims after the expiration of the time limit for filing unfair labor practice charges over the concurrent failure to bargain." Id. (footnote omitted). The Union claims that as a result, unions would be forced "to file unfair labor practice charges in all instances as a protective measure, needlessly burdening the system and all involved parties." Id. */ Consequently, the Union requests the Authority to find that the Union's proposal is negotiable.

The Authority will consider a petition for review of a negotiability issue under section 7117 of the Federal Service Labor - Management Relations Statute and part 2424 of the Authority's Rules and Regulations only when the parties are in dispute as to whether a union proposal is inconsistent with law, rule or regulation. In this case, the Agency has withdrawn any allegation of nonnegotiability it may have made concerning the Union's proposal.

There is no dispute before the Authority as to whether the Union's proposal 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 governing review are met and the Union chooses to file such an appeal. See Federal Professional Nurses Association, Local 2707 and U.S. Department of Health and Human Services, Federal Employees Occupational Health, Region III, 34 FLRA 71 (1989).

For the Authority.

Alicia N. Columna
Director, Case Control Office

FOOTNOTES

Footnote */ The Authority's Rules and Regulations provide that a union may file an unfair labor practice charge concurrent with a petition for review of a negotiability issue. The Union, however, must choose which procedure to pursue first. 5 C.F.R. 2423.5, 2424.5.