48:0389(34)NG - - NFFE Local 2050 and EPA, Washington, DC - - 1993 FLRAdec NG - - v48 p389



[ v48 p389 ]
48:0389(34)NG
The decision of the Authority follows:


48 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Union)

and

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

(Agency)

0-NG-2143

ORDER DISMISSING PETITION FOR REVIEW

August 27, 1993

The Union has filed a petition for review of negotiability issues in the above-captioned case. On June 17, 1993, the Authority issued an Order directing the Union to show cause why its petition should not be dismissed for failure to meet the conditions governing review of negotiability issues. The Union filed a timely response. On May 17, and June 30, l993, the Agency filed requests for dismissal of the Union's petition. For the reasons set out below, the Union's petition for review is dismissed without prejudice to the Union's right to file another petition for review at such time as the conditions governing review are met.

The record establishes that on April 2, l993, the Union proposed to open or resume bargaining with the Agency on 4 issues. In the same memorandum, the Union submitted its written proposals, and requested that the Agency respond in writing whether its proposals were negotiable. The Agency did not respond to the Union's request for an allegation of nonnegotiability.(*) On April 27, l993, the Union filed its petition for review. Where a union files a petition for review in the absence of an agency response to a request for a written allegation of nonnegotiability, the Authority views the agency's failure to respond as a constructive declaration of nonnegotiability that gives rise to a right of appeal to the Authority under 5 C.F.R. § 2424.3. See American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Re