39:0572(46)NG - AFGE, LOCAL 1692 and U.S. DEPARTMENT OF THE AIR FORCE MATHER AIR FORCE BASE, CALIFORNIA -- 1991 FLRAdec NG


[ v39 p572 ]
39:0572(46)NG
The decision of the Authority follows:


 39 FLRA NO. 46

             AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                             LOCAL 1692
                               (Union)

                                 and

                  U.S. DEPARTMENT OF THE AIR FORCE
                  MATHER AIR FORCE BASE, CALIFORNIA
                              (Agency)

                              0-NG-1906

                  ORDER DISMISSING PETITION FOR REVIEW

                         February 14, 1991

     The Union has filed a petition for review of negotiability
issues in the above-captioned case. The Agency has filed a
statement of position and the Union has filed a response.

     The Authority will consider a petition for review of a
negotiability issue under 5 U.S.C. 7117 and 5 C.F.R. Part 2424
only when the parties are in dispute as to whether a Union
proposal is inconsistent with law, including the Federal Service
Labor - Management Relations Statute (the Statute), rule or
regulation. In order to establish that such a dispute exists, a
union is required to submit with its petition for review a copy
of a written allegation by an agency that a matter sought to be
negotiated is inconsistent with law, including the Statute, rule
or regulation. 5 C.F.R. 2424.4(a)(3).

     The Union may obtain a written allegation of
nonnegotiability in two ways. First, a union may make a written
request for such an allegation from the agency. 5 C.F.R. 2424.3.
Second, the union may file a petition for review from an
unsolicited written allegation that a matter sought to be
negotiated is deemed to be nonnegotiable by the agency. See, for
example, National Federation of Federal Employees, Local 422 and
U.S. Department of the Interior, Bureau of Indian Affairs,
Colorado River Agency, 34 FLRA  721, 723-25 (1990).

     The Union filed its petition for review in the
above-captioned case with the Authority on December 5, 1990. In
its petition for review, the Union claimed that it had requested
the Agency's allegations concerning two proposals in a letter
dated November 6, 1990, from the Union' National Office.
According to the Union, as of the date of the petition for
review, the Agency had not responded to the Union's request. The
Union attached to its petition for review a letter dated November
16, 1990, from the Agency's Chief Negotiator to the Union in
which the Agency's Chief Negotiator stated that he did not
consider the request for an allegation of nonnegotiability
properly submitted because the request was not signed by an
official of the Local or a designated representative of the
Local's bargaining team.

     In its statement of position, the Agency acknowledged
sending the November 16, 1990, letter to the Union. The Agency
contends, however, that on November 20, 1990, in a letter from
the Agency's Chief Negotiator to the Union's Chief Negotiator,
the Agency responded to the Union's November 6, 1990, request for
an allegation of nonnegotiability by submitting two
counterproposals. The Agency claims further, that it "did not
allege that the duty to bargain in good faith did not extend to
the two Union proposals." Statement of Position at 3. Thus, the
Agency argues that an allegation of nonnegotiability has not been
issued. Finally, the Agency argues that if the Authority rejects
its arguments that it did not explicitly or constructively
declare the Union's proposals to be nonnegotiable, "(t)he
(A)gency withdraws the allegation that the duty to bargain in
good faith does not extend to the (disputed) proposals...." Id.
at 4.

     In its reply brief, the Union first contests the Agency's
refusal to consider the request of the Union's National Office
for an allegation of nonnegotiability properly submitted because
the request was not signed by an official of the Local or a
designated representative of the Local's bargaining team. The
Union argues instead that as the National Office is the
authorized agent of the Local, the Agency is required to deal
with the Union's agent. Next, the Union argues that the Agency
alleged the proposals to be nonnegotiable. According to the
Union, an Agency representative at the bargaining table orally
declared that the Union's proposal were nonnegotiable. In
support, the Union submitted an affidavit by its Chief Negotiator
in which he stated that at various times beginning in July 1990
and continuing to September 1990 the Agency's Chief Negotiator
orally declared the two Union proposals nonnegotiable. 

     The Union also attached a hand written note dated September
5, 1990, from the Agency's Chief Negotiator to the Union's Chief
Negotiator in which the Agency stated that the two Union
proposals were nonnegotiable. Accordingly, the Union argues that
its petition for review is properly before the Authority, and
that its petition for review should be dismissed "on the basis
that the (A)gency has withdrawn its allegations (of
nonnegotiability)." Reply brief at 7.

     Based on the record, the Union's petition must be dismissed
because the Agency has not alleged that the Union's proposals are
nonnegotiable. First, as to the claim that the Agency orally
declared the Union's proposals nonnegotiable, the Authority's
Rules and Regulations provide for the resolution of negotiability
appeals on the basis of a written record unless the Authority
finds it appropriate to hold a hearing. See 5 C.F.R. Part 2424.
Specifically, section 2424.3 of the Authority's Rules and
Regulations (5 C.F.R. 2424.3) requires that "the agency shall
make the allegation (or nonnegotiability) in writing and serve a
copy on the exclusive representative." Thus, whatever may have
transpired in oral exchanges between the parties at the
bargaining table is not material to the resolution of a
negotiability appeal. See, for example, American Federation of
Government Employees, AFL - CIO, National Council of Field Labor
Locals, Local 3181 and U.S. Department of Labor, Mine Safety and
Health Administration, 32 FLRA  1214, 1220 (1988).

     Second, it is unclear whether the hand written September 5,
1990, note from the Agency's Chief Negotiator to the Union's
Chief Negotiator constitutes a written declaration of
nonnegotiability within the meaning of 5 C.F.R 2424.3. In this
regard, it is noted that in the last sentence of the note, the
Agency's Chief Negotiator stated "(t)he above (discussion of the
proposals) is considered informal discussion only. The Union has
not requested a formal negotiability determination and none is
provided." Moreover, even assuming that the note constitutes a
written allegation of nonnegotiability, such allegation was
unsolicited and no timely appeal was filed by the Union from the
note.

     Finally, although the Agency's Chief Negotiator refused on
November 16, 1990, to provide a written allegation of
nonnegoti