35:0922(96)NG - - AFGE Local 1857 and Air Force, 2852D Air Base Group, McClellan AFB, CA - - 1990 FLRAdec NG - - v35 p922
[ v35 p922 ]
The decision of the Authority follows:
35 FLRA No. 96
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
2852D AIR BASE GROUP
MCCLELLAN AIR FORCE BASE, CALIFORNIA
ORDER DISMISSING PETITION FOR REVIEW
April 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns a proposal by the Union that, as a first step in the bargaining process, the Agency arrange a meeting to brief the Union regarding the implementation of a change in the operation of certain traffic signals located at McClellan Air Force Base.
We find that, because the Union's petition for review does not present issues concerning whether the proposal is inconsistent with law, rule or regulation, the appeal does not meet the conditions governing review of negotiability issues. Accordingly, we will dismiss the petition.
The Union states that the following is the "express language of the proposal sought to be negotiated as submitted to the agency:"
The Union requests you please arrange a meeting to brief the appointed Union representatives on the planned implementation of twenty-four [hour] operation of the traffic control signals at the intersections of Dudley and Palm, and Arnold and Peacekeeper on 22 January 1990. The change is addressed in Colonel Wilson's letter dated 9 January 1990. The briefing will be considered the first step in the formal negotiation process between the parties. After the briefing the Union will submit formal proposals, if necessary.
The Union's appointed representatives for the formal negotiations briefing(s) are Mr. Robert Nolan, Chief Negotiator, Mr. Tony Roberts, and Mr. Kerry Crutcher. Please contact Mr. Nolan to schedule the briefing as part of the formal negotiation process.
Union Petition for Review at 2.
III. Positions of the Parties
The Agency contends that the Union's appeal is untimely because it was not filed until over 6 months after the Agency served its allegation of nonnegotiability on the Union. In that allegation, the Agency asserted that it had no duty to bargain concerning traffic control signal operations because those matters are internal security and safety practices.
Alternatively, the Agency contends that the Union's appeal is prematurely filed because the Union has not yet presented any substantive proposals concerning the timing of the traffic signals, but merely requests a briefing concerning the 24-hour operation of the traffic signals. The Agency asserts that the petition for review does not present a proposal as to which the Authority can make a negotiability decision because the conditions for review of a negotiability appeal require that there be a matter proposed to be bargained. The Agency states that it "agreed to provide the requested briefing but reiterated its position . . . that the issue of the operation of the traffic signals was nonnegotiable." Agency's Statement of Position at 2-3.
Finally, the Agency argues that its decision to change the operation of the traffic lights is nonnegotiable because it involves the exercise of management's right, under section 7106(a)(1) of the Statute, to determine its internal security practices.
The Union did not file a response in this case.
IV. Analysis and Conclusions
We conclude that the Union's appeal does not present an issue concerning whether the proposal is inconsistent with law, rule or regulation. Accordingly, we will dismiss the appeal.
As a preliminary matter, we reject the Agency's claim that the Union's appeal is untimely. The record indicates that, although the Agency maintained in July 1989 that it had no duty to bargain over either the substance or the impact and implementation of its decisions concerning the operation of its traffic control signals, it did not allege that the proposal in this case was nonnegotiable. Accordingly, the timeliness of the Union's appeal as to the proposal in this case is based on the Agency's rejection of the proposal in its response to the Union in January 1990. Based on that response, the appeal is timely.
However, the Union's appeal does not meet the conditions for review of negotiability issues set forth in section 7117(c) of the Statute and section 2424.1 of the Authority's Rules and Regulations. The proposal requires the Agency to: (1) arrange a meeting with the Union as the first step in the negotiating process; and (2) conduct a briefing at that meeting concerning the implementation of the Agency's planned change in the timing of certain traffic lights. The proposal also designates Union representatives for the requested meeting and notes that the Union might submit proposals after the briefing.
The Agency does not argue that a proposal that it meet with the Union and conduct a briefing is inconsistent with any law, rule or regulation. Rather, as noted above, the Agency argues only that it need not bargain over its decision to change the operation of the traffic signals. In a negotiability proceeding, the Authority will resolve only allegations that a proposal conflicts with law, rule or regulation. Absent an allegation that the specific matter proposed to be negotiated is inconsistent with law, rule or regulation, the conditions governing review of negotiability issues set forth in section 7117 of the Statute and in Part 2424 of our Rules and Regulations have not been met and the appeal will be dismissed. See National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192 (1988) (HUD) (union's appeal dismissed where the record did not contain an allegation that the matter in dispute was inconsistent with law, rule or regulation).
In this case, the Agency's only negotiability contention is that it has no duty to bargain concerning the decision to change the operation of the traffic lights. The Agency at no time alleged that the proposal in this case--to arrange a meeting and conduct a briefing--was nonnegotiable. Consistent with the decision in HUD, therefore, we find that the Union's appeal does not meet the conditions for review of negotiability issues as described in Part 2424 of our Rules and Regulations. Therefore, the appeal will be dismissed, without prejudice to the Union's right to file a subsequent negotiability appeal concerning proposals pertaining to the operation of the traffic lights, if it elects to do so, and if the conditions governing review are met.
The petition for review is dismissed without prejudice to the Union's right to file a subsequent negotiability appeal, if it chooses to do so, provided that the conditions for review of such an appeal are met.
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