International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office (Authority decision, June 17, 1992)

Final FLRA decision. This order ends the present negotiability petition without deciding the disputed proposals. The union may file a later petition if the conditions for review are met. An aggrieved person may seek judicial review of a final Authority order by filing 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 order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

IFPTE Local 89 submitted a large set of proposals in response to the Grand Coulee Project Office's drug testing plan. An internal agency memorandum called more than 100 sections nonnegotiable, and the union filed a petition after receiving a copy. The Authority found that the memorandum was an unsolicited allegation and that the union appeared to prefer further bargaining before a negotiability ruling. It dismissed the petition without prejudice, leaving the union free to file later if the review conditions are met. The Authority urged the parties to discuss their positions and consider outside assistance.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition dismissed without prejudice; no proposal decided on the merits.
• Key point: An unsolicited nonnegotiability allegation did not require an immediate petition for review.

Full text (FLRA public release)

[ v45 p230 ]

45:0230(19)NG

The decision of the Authority follows:

45 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS, LOCAL 89

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

GRAND COULEE PROJECT OFFICE

GRAND COULEE, WASHINGTON

(Agency)

0-NG-2044

ORDER DISMISSING PETITION FOR REVIEW

June 17, 1992

The Union has filed a petition for review of negotiability issues in this case. The Agency filed a statement of position and the Union filed a reply brief. For the reasons set out below, the Union's petition for review is dismissed without prejudice to the Union's right to file another petition for review at such time as the conditions governing review are met.

The record establishes that on June 26, 1991, in response to a drug testing plan proposed by the Agency, the Union submitted a proposal containing approximately 210 sections. In an internal Agency memorandum dated July 25, 1991, an Agency attorney advised the Agency's Chief of Labor Management Relations that over 100 sections of the proposal were deemed nonnegotiable. Although the memorandum stated that it included materials to be "transmitted to management negotiators for the purpose of providing guidance and documentation for bargaining" with the Union, the record does not indicate that bargaining took place. Instead, approximately 8 months later, on March 31, 1992, the Agency provided the Union with a copy of the memorandum and the Union filed the instant petition for review.

A union is not required to file a petition for review of an unrequested allegation of nonnegotiability. Rather, a union may ignore such an allegation and elect to request in writing a written allegation at a later time. For example, American Federation of Government Employees, Local 2430 and U.S. Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 36 FLRA 245 (1990) (VA). There is no indication in the record that the Union requested in writing an allegation of nonnegotiability concerning its proposal. Accordingly, it appears that the Agency's memorandum constitutes an unsolicited allegation. As such, the Union was not required to file a petition for review in response to receipt of the memorandum.

Although the Union was not required to file a petition for review in response to the memorandum, the Union could elect to do so. See id. at 246. In this case, the Union's petition was timely and otherwise satisfies applicable regulatory requirements. However, it is unclear as to whether the Union actually desires a negotiability decision at this time. See id. at 247. In this regard, the Union states that:

The [A]gency . . . has chosen to flatly reject more than half of the Union's bargaining proposals out-of-hand and without so much as the benefit of negotiation or discussion over them. Such a situation does not make for a healthy working relationship, nor will it result in a "win-win" agreement between the parties.

Reply Brief at 13.

As it appears from this statement that the Union would prefer further bargaining rather than negotiability resolution at this time, and as the Union was not required to file a petition for review in response to the unrequested allegation of nonnegotiability, we will dismiss the petition for review. See id. The dismissal is without prejudice to the Union's right to file a petition for review at a later time if the conditions governing review are met and the Union chooses to file such an appeal.

As noted previously, the petition for review encompasses over 100 sections of a proposal and it appears that the parties' positions regarding the negotiability of the proposal were developed before face-to-face bargaining. Therefore, the parties are urged to explore their respective positions with a sincere resolve to reach agreement bilaterally. In view of the complexity of this dispute, the parties also are urged to consider whether third-party assistance would be useful in resolving the dispute.

For the Authority.

Alicia N. Columna

Director, Case Control Office

FOOTNOTES:
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have footnotes.)