Federal Union of Scientists and Engineers and Department of the Navy (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 filed a negotiability petition without a written Navy allegation that its proposals were nonnegotiable. The Navy said the proposals might be negotiable and did not assert otherwise. The Authority found no current negotiability dispute and dismissed the petition without prejudice to refiling if the Navy later made a nonnegotiability allegation.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition dismissed without prejudice.
• Key point: The Navy had not claimed that the proposals were outside the duty to bargain.

Full text (FLRA public release)

[ v19 p810 ]

19:0810(97)NG

The decision of the Authority follows:

19 FLRA No. 97

FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
Union

and

DEPARTMENT OF THE NAVY
Agency

Case No. O-NG-1056

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 during the course of negotiations the Union submitted three proposals concerning the utilization of office space. The Union claims that the local agency bargaining representative orally declared the Union's proposals nonnegotiable, but did not respond to the Union's written request for a written allegation of nonnegotiability. The Union then filed the instant petition for review with the Authority without a written allegation of nonnegotiability pursuant to section 2424.3 of the Authority's Rules and Regulations, as to whether the disputed proposals were within the duty to bargain. Subsequently, in a letter to the Authority dated December 13, 1984, the Agency requested that the Union's petition for review be dismissed because, in its opinion, the proposals "either are not clearly nonnegotiable or it may be possible for the activity to develop negotiable positions . . . . "

In these circumstances, i.e., since the Agency has stated in effect that it does not view the proposals as nonnegotiable, there is no issue as to whether these proposals are 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 proposals 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).