National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, Washington, D.C. (Authority decision, August 27, 1993)

Final FLRA decision. This order ends the current negotiability petition without deciding whether the proposals are negotiable. The union may file another petition if the conditions for review are met. An aggrieved person may seek judicial review of a covered final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a); filing a petition does not stay the order unless a court orders a stay under § 7123(c).

Plain-English summary

NFFE Local 2050 submitted four bargaining proposals to EPA and asked for a written statement on their negotiability. EPA did not give that statement, and the union filed a timely negotiability petition. The Authority found that the absence of a response could support an appeal but that both parties' submissions indicated a preference to bargain. It dismissed the petition without prejudice and urged the parties to explore agreement. It made no ruling on whether EPA had a duty to bargain over the proposals; that question could be addressed in another appropriate proceeding.

Decision snapshot

• Authority: Negotiability review under 5 C.F.R. § 2424.3.
• Outcome: Petition dismissed without prejudice; no proposal decided on the merits.
• Key point: A union may appeal an agency's silence on negotiability, but the Authority declined review while both sides appeared to prefer bargaining.

Full text (FLRA public release)

[ v48 p389 ]
48:0389(34)NG

The decision of the Authority follows:

48 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Union)

and

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

(Agency)

0-NG-2143

ORDER DISMISSING PETITION FOR REVIEW

August 27, 1993

The Union has filed a petition for review of negotiability issues in the above-captioned case. On June 17, 1993, the Authority issued an Order directing the Union to show cause why its petition should not be dismissed for failure to meet the conditions governing review of negotiability issues. The Union filed a timely response. On May 17, and June 30, l993, the Agency filed requests for dismissal of the Union's petition. 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 April 2, l993, the Union proposed to open or resume bargaining with the Agency on 4 issues. In the same memorandum, the Union submitted its written proposals, and requested that the Agency respond in writing whether its proposals were negotiable. The Agency did not respond to the Union's request for an allegation of nonnegotiability.(*) On April 27, l993, the Union filed its petition for review. Where a union files a petition for review in the absence of an agency response to a request for a written allegation of nonnegotiability, the Authority views the agency's failure to respond as a constructive declaration of nonnegotiability that gives rise to a right of appeal to the Authority under 5 C.F.R. § 2424.3. See American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 372 (1990). The Union's petition for review was timely filed and otherwise satisfies applicable regulatory requirements.

However, the Agency, in its May 17, l993, request to dismiss, states that "[w]e have not bargained nor taken any position concerning the negotiability of the Union's proposals." In addition, the Union states, in its response to show cause, that it "requests the Authority to issue a summary judgment ordering the Agency to open bargaining on these issues within ten days." As it appears from these statements that both parties would prefer to bargain over the proposals, and as the Union was not required to file a petition for review when the Agency failed to respond to its request for an allegation, the Authority will dismiss the Union's petition for review 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.

The parties are urged to explore their respective positions with a sincere resolve to reach agreement bilaterally. To the extent that the parties remain in dispute over whether the Agency has a duty to bargain over the proposals, the dispute should be resolved in other appropriate proceedings.

For the Authority.

_________
Alicia N. Columna
Director, Case
Control Office

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

*/
The Union states that a copy of an April
29, l993, memorandum from the Agency acknowledging receipt of its proposals was attached to its response to show cause. However, the Authority did not receive any of the attachments referenced in the Union's response.