43:0300(29)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1991 FLRAdec NG - - v43 p300
[ v43 p300 ]
The decision of the Authority follows:
43 FLRA No. 29
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT
U.S. DEPARTMENT OF VETERANS AFFAIRS
ORDER DISMISSING PETITION FOR REVIEW
November 25, 1991
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). The petition for review concerns one proposal that addresses the computation of backpay due an employee pursuant to a settlement of an unfair labor practice charge.
For the following reasons, we dismiss the petition for review because the proposal does not concern a negotiability issue and is not properly before us.
In January 1990 the Agency reduced the hours of one of the employees employed in the bargaining unit represented by the Union. The Union filed an unfair labor practice charge, which was later settled in October 1990. As a result of this settlement, the Agency agreed, among other things, to make the affected employee whole for any losses she suffered as a result of the reduction in her hours and to negotiate with the Union concerning the impact and implementation of the January 1990 decision to reduce the affected employee's hours.
Pursuant to the settlement agreement, the Union submitted the proposal that is now before us. The Agency advised the Union that the proposal was "unacceptable" because it did "not conform with the settlement agreement" which left "no residual issues . . . regarding the backpay award . . . ." Petition for review, Attachment 2; Agency Statement of Position, Attachment 8. The Union filed the petition for review in this case and has also filed an unfair labor practice charge over the Agency's refusal to bargain over the proposal.
III. The Proposal
To resolve the issue of back pay due . . . the Parties agree to procede [sic] with either of the following options (avenues) [:]
1. A joint request to the Office of the Comptroller General; or
2. The Union may invoke binding arbitration.
The Union shall have the option of proceeding through either of the avenues outlined above.
IV. Positions of the Parties
A. The Agency
The Agency argues, among other things, that it has not "challenged" the Union's proposal as being inconsistent with law, rule or regulation. Statement of Position at 5. Rather, the Agency maintains that it has only asserted that the proposal is outside the duty to bargain because the matter of the amount of backpay due is already "covered by" the October 1990 settlement agreement. Id.
The Agency contends that because the Agency has not made and does not make an assertion that the proposal is inconsistent with law, rule or regulation, the conditions governing review of negotiability issues have not been met.
B. The Union
The Union contends, without elaboration, that the proposal is "intended to provide relief to unit employees impacted by the Agency [sic] commission of an unfair labor practice" and that the proposal "seeks to determine the employees [sic] entitlement to back pay" under 5 U.S.C. § 5596. Petition for Review at 1. The Union did not file a response to the Agency's statement of position.
V. Analysis and Conclusions
Under section 7117 of the Statute and section 2424.1 of the Authority's Regulations, the Authority considers 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. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928 (1990); American Federation of Government Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA 768, 769 (1987). 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 does not dispute the negotiability of the proposal; rather, the Agency contends only that the subject matter of the proposal is covered by, and is outside its duty to bargain under, the settlement agreement. Therefore, the petition for review as to this proposal does not meet the conditions governing review of negotiability issues and must be dismissed. Accordingly, we will dismiss the Union's petition for review as to the proposal, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 401-02 (1987). To the extent that the parties' dispute over whether the subject matter of the proposal is covered by the settlement agreement remains, the dispute should be resolved in other appropriate proceedings, such as the unfair labor practice procedure under section 7118 of the Statute. See id. at 402.
The petition for review is dismissed wit