36:0082(9)NG - - AFGE Local 1513 and Navy, Naval Air Station, Whidbey Island, Oak Harbor, WA - - 1990 FLRAdec NG - - v36 p82
[ v36 p82 ]
The decision of the Authority follows:
36 FLRA No. 9
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVAL AIR STATION, WHIDBEY ISLAND
OAK HARBOR, WASHINGTON
ORDER DISMISSING PETITION FOR REVIEW
June 20, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three proposals concerning the establishment by the Agency of a Military Spouse Volunteer Program. For the reasons that follow, we conclude that the Union's petition for review must be dismissed.
II. Background and Positions of the Parties
The Union submitted a petition for review of negotiability issues to the Authority that did not contain any specific proposal(s) for negotiation as is required by 5 C.F.R. § 2424.4(a)(1). The Authority issued an Order To Show Cause citing this defect and ordering the Union to submit a statement of the express language of the proposal sought to be negotiated as submitted to the Agency if it wished to avoid dismissal of its petition. In response, the Union furnished the language of three proposals.
In its statement of position, the Agency asserts that, prior to having been served with a copy of the Union's response to the Authority's Order To Show Cause, the three proposals had never been submitted to it. Based on this, the Agency moves that the Union's petition for review be dismissed for failure to comply with the provisions of 5 U.S.C. § 7117(c) and 5 C.F.R. § 2424.4(a)(1). The Agency contends that those provisions require a union to submit its proposals to the agency prior to filing a petition for review with the Authority. Although it argues before us that the three proposals submitted to the Authority are nonnegotiable, the Agency asserts that the Union's failure to have submitted them to the Agency prior to initiating a petition for review deprived the Agency of the opportunity to explore the possibility of negotiable alternatives to those three proposals.
The Union concedes that it did not submit the three proposals to the Agency prior to responding to the Authority's Order To Show Cause. The Union contends that it had not submitted the proposals to the Agency at an earlier point because the Agency had taken the position in exchanges with the Union that the Agency had no obligation to bargain concerning the Military Spouse Volunteer Program.
III. Analysis and Conclusion
Part 2424 of the Authority's regulations, which governs petitions for review of negotiability issues, contemplates that proposals that are the focus of a dispute must have been subject to a declaration of nonnegotiability by the agency involved prior to the union's filing a negotiability appeal with the Authority. See, for example, International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 270 (1988). This practice serves the purpose of avoiding unnecessary litigation in two ways. First, and most obviously, it assures that there actually is a dispute over the negotiability of a proposal. Second, it affords the parties the opportunity to explore alternatives. See 45 Fed. Reg. 3482, 3485, where the Authority expanded the time period allowed under 5 C.F.R. § 2424.3 for an agency to respond to an exclusive representative's written request for an allegation of nonnegotiability, citing as justification suggestions that the shorter time period "tended to discourage the exploration of alternatives and negotiation by the parties and correlatively promoted litigation."
Here, the Union failed to submit the three proposals to the Agency for an allegation of nonnegotiability prior to filing an appeal with the Authority. In view of the position expressed by the Agency in its statement of position, that the proposals conflict with various management rights and that one, additionally, does not concern conditions of employment of bargaining unit employees, it is clear that there is a dispute between the parties over the negotiability of these particular proposals. However, the Union's failure to have submitted these proposals to the Agency deprived the parties of the opportunity to explore alternatives and, possibly, to resolve their dispute bilaterally without the need for litigation before the Authority. When the Union initially requested to negotiate the "impact and implementation" of the Military Spouse Volunteer Program, the Agency indicated that such request was "inappropriate." Unnumbered attachment to Union petition. However, the Agency now takes the position before the Authority that "had the specific proposals been provided to agency management, it is possible the issues could have been resolved by the parties developing negotiable language which would address their concerns." Agency statement of position at 4. Thus, the Agency asserts that it would be willing to consider specific proposals and explore alternatives concerning the Military Spouse Volunteer Program.
In view of the Agency's position, we conclude that it would not be a futile act to require the parties to attempt to resolve their dispute bilaterally through the consideration of these proposals and the possibility of alternatives, before they are considered by the Authority in a petition for review. Under these circumstances, we find that considering the Union's petition at this point would be inconsistent with the letter and spirit of the Authority's regulatory requirement that proposals be submitted to an agency for an allegation of nonnegotiability prior to filing a petition for review. Compare National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862, 862-63 (1987) enforced sub nom. Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, FLRA, 864 F.2d 89 (9th Cir. 1988) (the Authority ruled on a proposal that an agency had first declared nonnegotiable in its statement of position, finding "unique circumstances" where the union fully addressed the negotiability of the proposal in its response to the agency's statement of position and