NFFE Local 1363 and Army Garrison Yongsan (Authority decision, August 19, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition 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 Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union sought review of an Army proposal without a written allegation that it was nonnegotiable. The Army told the Authority it had made no such allegation and did not view the proposal as nonnegotiable. Because no negotiability dispute existed, the Authority dismissed the petition without prejudice to refiling if the Army later made such an allegation.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition dismissed without prejudice.
• Key point: A negotiability petition needed an actual nonnegotiability dispute.

Full text (FLRA public release)

[ v19 p812 ]

19:0812(98)NG

The decision of the Authority follows:

19 FLRA No. 98

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363
Union

and

DEPARTMENT OF THE ARMY HEADQUARTERS,
U.S. ARMY GARRISON, YONGSAN, KOREA
Agency

Case No. O-NG-1048

ORDER DISMISSING PETITION FOR REVIEW

This case is before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) on a petition for review of negotiability issues filed by the Union.

The record before the Authority indicates that the local activity informed the Union that it planned to change funding procedures for over water travel which would affect bargaining unit employees. In response, the Union submitted a proposal and in writing requested a written nonnegotiability allegation from the Agency. When the Agency did not respond after ten days, the Union filed the instant petition for review with the Authority without a written nonnegotiability allegation pursuant to section 2424.3 of the Authority's Rules and Regulations, as to whether the disputed proposal was within the duty to bargain. Subsequently, in a letter to the Authority, dated September 18, 1984, the Agency requested that the Union's petition for review be dismissed as being prematurely filed because "(n)o allegation of nonnegotiability was made, nor is an allegation being made now."

In these circumstances, i.e., since the Agency has stated in effect that it does not view the proposal as nonnegotiable, there is no issue as to whether this proposal is within the duty to bargain under the Statute. /1/

Accordingly, and apart from other considerations, the petition for review in this case is hereby dismissed without prejudice to the Union refiling should the Agency assert the proposal to be nonnegotiable in the future. Issued, Washington, D.C., August 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Cf. American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697 (1984) (wherein the Authority found that failure to respond to a union's request for an allegation was a constructive declaration of nonnegotiability so as to give rise to a right of appeal).