32:0813(120)NG - - AFGE Local 3760 and HHS, SSA - - 1988 FLRAdec NG - - v32 p813
[ v32 p813 ]
The decision of the Authority follows:
32 FLRA No. 120
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3760
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Case No. 0-NG-1484
ORDER DISMISSING NEGOTIABILITY APPEAL
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of five proposals relating to the distribution of "sample cases" to examiners who handle disability claims in the disability quality branch of the Agency's Field Assessment Office.
We dismiss the Union's petition for review because the parties have failed to create a record on which we can make a negotiability determination.
The Union filed its petition for review in this case in November 1987. The Union also filed related unfair labor practice charges and, in accordance with 5 C.F.R. §§ 2423.5 and 2424.5, selected to proceed with the unfair labor practice procedure first. Based on the Union's selection, processing of this negotiability appeal was suspended pursuant to the Authority's Regulations.
In a letter dated May 25, 1988, the Union: (1) advised the Authority that the Regional Director had "rendered a decision that is acceptable" to the Union; and (2) requested the Authority to process the negotiability appeal.
On May 27, 1988, the Authority issued an order stating that it would resume processing of the Union's petition for review. The order also stated that "[c]onsistent with 5 C.F.R. § 2424.6, the [Agency] has 30 days from the date of receipt of this Order to file a statement of position in this case with the Authority."
The Authority did not receive a statement of position from the Agency.
Management agrees to distribute sample cases to DQB examiners in a fair and equitable manner.
Management agrees to distribute sample cases to part time examiners in the same fair and equitable manner as full time examiners.
Management agrees to distribute sample cases to examiners on a skeleton day e.g., Fridays after Thursday holidays, storm days, etc. in the same fair and equitable manner as to examiners on regular fully staffed days.
Management agrees to the following described procedure for distribution of sample cases that are assigned to DQB examiners.
Management agrees to make every reasonable effort, given circumstances and exigencies of SSA's responsibilities, to avoid the adverse impact on DQB examiners which occurs when requests for detailees coincides [sic] with a time of high case receipt.
We dismiss the Union's petition for review because the parties have failed to provide a record sufficient for the Authority to resolve this negotiability dispute.
Section 7117(c) of the Statute states that a union may appeal an agency's allegation of nonnegotiability "in accordance with the provisions of this subsection." 5 U.S.C. § 7117(c)(1). Following a union's filing of a petition for review with the Authority, an agency "shall" file with the Authority a statement withdrawing the allegation or setting forth in full its reasons supporting the allegation. 5 U.S.C. § 7117(c)(3)(A). Thereafter, the union "shall" file its response to the agency's statement. 5 U.S.C. § 7117(c)(4).
The Authority's Rules and Regulations implementing these statutory provisions require the parties to provide certain information to enable the Authority to make negotiability determinations. Among other things, the Union and the Agency are required to: (1) provide a full and detailed statement of reasons supporting or disagreeing with the allegation of nonnegotiability; (2) explain all terms of art, acronyms, technical language, or any other aspect of the language in the disputed proposal which is not in common usage; and (3) describe the work situation or other particular circumstances so that the Authority will be able to understand the context in which the proposal is intended to apply. See 5 C.F.R. §§ 2424.4, 2424.6, and 2424.7.
The record before us does not contain a description of the work situation which enables us to understand the context in which the proposals are intended to apply. The proposals relate to the distribution of "sample cases" to examiners who handle disability claims in the disability quality branch of the Agency's Field Assessment Office. No information has been provided which describes what "sample cases" are, how the employees' work is assigned, or how the proposals would affect the work of employees or the work situation. Without this information, we are unable to determine the effect of the proposals on management's rights. Moreover, we note that Proposal 4, as set forth in the petition for review, differs from the text of the proposal alleged by the Agency to be nonnegotiable.
In the absence of the required information, we are unable to determine the negotiability of the proposals. As we have consistently held, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, for example, Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1446 (1987); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its own peril. American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 997 (1987), petition for review as to other matters filed sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Dec. 12, 1987).
The Union's petition for review is dismissed.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Section 7117(c) of the Statute provides, in pertinent part:
"(2) The exclusive representative may . . . institute an appeal under this subsection by--
"(A) filing a petition with the Authority; and
* * * * * *
"(3) . . . the agency shall--
"(A) file with the Authority a statement--
* * * * * *
"(ii) setting forth in full its reasons supporting the allegation;
* * * * * *
(4) . . . the exclusive representative shall file with the Authority its response to the statement.
The Authority's Rules and Regulations governing the expedited review of negotiability appeals provide, in pertinent part:
§ 2424.4 Content of petition; service.
(a) A petition for review shall be dated and shall contain the following:
* * * * * *
(2) An explicit statement of the meaning attributed to the proposal by the exclusive representative including;
(i) Explanation of terms of art, acronyms, technical language, or any other aspect of the language of the proposal which is not in common usage; and
(ii) Where the proposal is concerned with a particular work situation, or other particular circumstances, a description of the situation or circumstances will enable the Authority to understand the context in which the proposal is intended to apply[.]
* * * * * *
§ 2424.6 Position of the Agency; time limits for filing; service.
(a) . . . the agency shall file a statement--
(2) Setting forth in full its position on any matters relevant to the petition which it wishes the Authority to consider in reaching its decision, including a full and detailed statement of its reasons supporting the allegation. The statement shall cite the section of any law, rule or regulation and shall contain a copy of any internal agency rule or regulation so relied upon. The statement shall include:
(i) Explanation of the meaning the agency attributes to the proposal as a whole,including terms of art, acronyms, technical language, or any other aspect of the language of the proposal which is not in common usage; and
(ii) Description of a particular work situation, or other particular circumstance the agency views the proposal to concern, which will enable the Authority to understand the context in which the proposal is considered to apply by the agency.
* * * * * *
§ 2424.7 Response of the exclusive representative; time limits for filing; service.
(a) . . . [after] receipt by an exclusive representative of . . . an agency's statement of position the exclusive representative shall file a full detailed response stating its position and reasons for:
(1) Disagreeing with the agency's allegation that the matter, as proposed to be negotiated, is inconsistent with any Federal law or Government-wide rule or regulation; or
(2) Alleging that the agency's rules or regulations violate applicable law, or rule or regulation or appropriate authority outside the agency; that the rules or regulation were not issued by the agency or by any primary national subdivision of the agency, or otherwise are not applicable to bar negotiations under 5 U.S.C. § 7117(a)(3); or that no compelling need exists for the rules or regulation to bar negotiations.
(b) The response shall cite the particular section of any law, rule or regulation alleged to be violated by the agency's rules or regulations; or shall explain the grounds for contending the agency rules or regulations are n