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U.S. Federal Labor Relations Authority

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17:0552(82)NG - IBEW and Interior, Bureau of Reclamation -- 1985 FLRAdec NG

[ v17 p552 ]
The decision of the Authority follows:

 17 FLRA No. 82
                                            Case No. 0-NG-1108
    This case is before the Authority pursuant to section 7105(a)(2)(E)
 of the Federal Service Labor-Management Relations Statute on a petition
 filed by the Union for review of an alleged negotiability dispute with
 the Activity.  For the reasons stated below, the Union's petition for
 review must be dismissed.
    It appears from the Union's submissions that it sought an answer from
 the Activity to the question whether any pay increase over the amount
 set by Executive Order or Act of Congress is not subject to negotiations
 or to the parties' negotiated grievance and arbitration procedure.  The
 Activity's response was that any wage adjustment is limited by the terms
 and conditions of any applicable law or Executive Order in effect at the
 time the adjustment is negotiated or effective.  Treating that response
 as the Activity's allegation of nonnegotiability, the Union filed the
 petition for review in this case.
    Section 2424.1 of the Authority's Rules and Regulations, which
 implements section 7117 of the Statute, provides, in pertinent part:
          Sec. 2424.1 Conditions governing review
          The Authority will consider a negotiability issue under the
       conditions prescribed by 5 U.S.C. 7117(b) and (c), namely:  If an
       agency involved in collective bargaining with an exclusive
       representative alleges that the duty to bargain in good faith does
       not extend to any matter proposed to be bargained because, as
       proposed, the matter is inconsistent with law, rule or regulation,
       the exclusive representative may appeal the allegation to the
    Further, it is well-established that a petition for review of a
 negotiability issue which does not present a proposal sufficiently
 specific and delimited in form and content as to permit the Authority to
 render a negotiability decision thereon does not meet the conditions for
 review set forth in section 7117 of the Statute and section 2424.1 of
 the Authority's Rules and Regulations.  See, e.g., Association of
 Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2
 FLRA 314 (1979).
    Thus, the conditions governing review of a negotiability issue
 include a requirement that there be "a matter proposed to be bargained,"
 and that the proposal must be specific in form and content so as to
 enable the Authority to determine whether the proposal is negotiable
 under the Statute.  See, e.g., Federal Employees Metal Trades Council
 and Department of the Navy, Mare Island Naval Shipyard, Vallejo,
 California, 10 FLRA 407 (1982).
    It has been determined that the circumstances here involved do not
 give rise at this time to a ripe negotiability dispute upon which the
 Authority can rule.  In this case, the dispute between the parties is
 not sufficiently delineated to form a basis for a negotiability
 determination by the Authority.  As described above, while the Union may
 have sought to negotiate with the Activity concerning wage adjustments
 in excess of the Federal wage cap, it did not propose any specific
 language for negotiation.  Therefore, it is clear that the Union's
 petition for review was prematurely filed and does not meet the
 conditions for review set forth in section 7117 of the Statute and
 section 2424.1 of the Authority's Rules and Regulations and must be
 dismissed on that basis.  Moreover, to decide the issue presented in the
 instant case under the circumstances described would be tantamount to
 issuing an advisory opinion, which is precluded by section 2429.10 of
 the Authority's Rules and Regulations.
    Accordingly, and apart from other considerations, the Union's
 petition for review is hereby dismissed.  For the Authority.  Issued,
 Washington, D.C., April 15, 1985
                                       Harold D. Kessler,
                                       Managing Director for Case