42:0935(67)NG - AFGE, NATIONAL BORDER PATROL COUNCIL and U.S. DEPARTMENT OF JUSTICE, INS -- 1991 FLRAdec NG

[ v42 p935 ]
42:0935(67)NG
The decision of the Authority follows:


  42 FLRA NO. 67

                AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                      NATIONAL BORDER PATROL COUNCIL
                                  (Union)

                                    and

                        U.S. DEPARTMENT OF JUSTICE
                   IMMIGRATION AND NATURALIZATION SERVICE
                                  (Agency)

                                 0-NG-1942

                     ORDER DISMISSING PETITION FOR REVIEW

                              October 18, 1991

     The Union has filed a petition for review of negotiability
issues in the above-captioned case. The petition encompasses two
proposals relating to an Agency decision to make successful
completion of a Driver's Training course a mandatory requirement
for graduation from the Border Patrol Academy. As relevant here,
Proposal 2 concerns maintenance of the status quo in the manner
of calculating and applying driver training course scores to the
successful completion of the Border Patrol Academy. 1/  For the
following reasons, the Union's petition as to Proposal 2 must be
dismissed.

     The Authority will consider a petition for review of a
negotiability issue only where the parties are in dispute over
whether a proposal is inconsistent with law, rule, or regulation.
For example, National Association of Government Employees, Local
R1-109 and U.S. Department of Veterans Affairs, Medical Center,
Newington, Connecticut, 38 FLRA  928, 931 (1990) (Newington).
Where the conditions for review of negotiability issues are met,
a union is entitled to a decision as to whether a proposal is
negotiable under the Statute. See American Federation of
Government Employees, AFL - CIO, Local 2736 v. FLRA,  715 F.2d
627, 631 (D.C. Cir. 1983).

     In this case, the Agency asserts that it has not alleged
Proposal 2 to be nonnegotiable. The Union disagrees, relying on
an Agency letter dated March 5, 1991, wherein the Agency asserted
that "(t)he assigned driving instruction ... is an assignment of
work and an exercise of ... internal security authority under 5
USC 7106." Exhibit 8 to Petition for Review.

     An examination of the Agency's March 5 letter reveals that
the Agency did not allege any specific proposal to be
nonnegotiable. It is unclear, in this regard, whether the Union
had, in fact, offered specific proposals to the Agency at the
time of the March 5 letter. Even assuming that it had, however,
the Union did not request an allegation of nonnegotiability until
April 24, 1991. In its response to the request, the Agency
asserted only that it had no duty to bargain over the proposal
and that in the absence of such duty, "any question of
nonnegotiability would be moot." Exhibit 11 to petition for
review.  2/  The Agency confirms, in this regard, that "it has never
asserted that either of the proposals ... in this case are
nonnegotiable." Statement of Position at 6. Moreover, the Agency
acknowledges that proposals requiring an agency to maintain the
status quo during bargaining are negotiable. Id. at 10.

     There is no dispute before the Authority as to whether
Proposal 2 is inconsistent with law, rule or regulation.
Accordingly, the Union's petition for review is dismissed 
without prejudice to the Union's right to file an appeal if
the conditions for review are met and the Union chooses to file
such an appeal. See Newington, 38 FLRA  at 931 (as agency's
allegation that a proposal was moot did not constitute an
allegation of nonnegotiability, petition for review was dismissed
as to that proposal). To the extent that the parties remain in
dispute over whether the Agency has a duty to bargain over the
proposal, the dispute should be resolved in other appropriate
proceedings.  3/  See id.

For the Authority.

                         Alicia N. Columna
                         Director, Case Control Office


FOOTNOTES

     Footnote 1/ The Union withdrew Proposal 1 from the petition
and   filed a separate petition as to it. That petition
(0-NG-1967) was dismissed by the Authori