[ v36 p245 ]
The decision of the Authority follows:
36 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
FORT LYON, COLORADO
ORDER DISMISSING PETITION FOR REVIEW
July 6, 1990
The Union has filed a petition for review of negotiability issues in the above-referenced case. For the following reasons, the 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 Union's petition states that the parties agreed to, among others, the following ground rules provision:
Upon written receipt of notice, from either party, to resolve issues on the position of negotiability or arbitrability must be rendered in writing stating the reasons why it is not negotiable or arbitrable, and documented to that effect.
Attachment 1 to Union's Petition (section 8(d)). Following agreement to ground rules, the Union submitted its bargaining proposals to the Agency. The Agency responded with counterproposals and included in its counterproposals statements that it had no duty to bargain on various Union proposals.
The Union states that it filed the petition for review because the ground rules provision quoted above "is potentially a written request for allegations of non-negotiability," and the Agency's statements in its counterproposals are "conceivably" allegations of nonnegotiability. Petition at 1-2. The Union states that:
Should the Authority so construe those documents, this constitutes AFGE's Request for Review of such allegations[.]
Id. at 2.
A petition for review must be filed within 15 days of the date of service of an agency's written allegation of nonnegotiability. 5 C.F.R. § 2424.3. A union "shall request such allegation in writing[.]" Id. In addition, a union may file a petition for review of an unrequested allegation of nonnegotiability, provided the petition for review is timely filed. 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, 723-24 (1990).
A union is not required to file a petition for review of an unrequested allegation of nonnegotiability, however. Rather, "the union may ignore such unsolicited allegation and instead elect to request in writing a written allegation of nonnegotiability from the [a]gency" at a later time. Id. at 723, quoting American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512, 513 (1986).
Nothing in the plain wording of section 8(d) of the parties' ground rules supports a conclusion that, by submitting its collective bargaining proposals to the Agency, the Union requested the Agency to provide written allegations of nonnegotiability. In this regard, section 8(d) requires that there be "written receipt of notice . . . to resolve issues on the position of negotiability[.]" That is, section 8(d) speaks to specific notices to resolve negotiability issues. The Agency's statements concerning its obligation to bargain were submitted as part of its counterproposals, however, and there is no indication in the record that any notices to resolve negotiability issues were issued by the Union, or received by the Agency.
As there is no basis on which to conclude that the Union requested, in writing, allegations of nonnegotiability from the Agency, the Agency's statements, even if construed as allegations of nonnegotiability, must be found to be unsolicited allegations. Because the Agency's statements are unsolicited allegations, the Union was not required to file a petition for review to preserve its rights.
The Union states that its submission constitutes a petition for review only if the Authority construes the Agency's statements as allegations of nonnegotiability submitted in response to a written request for such allegations. As determined above, the Agency's statements, even if they constitute allegations, are unsolicited. Accordingly, consistent with the Union's statement, there is no basis on which to conclude that the Union seeks review of the Agency's statements at this time.
Accordingly, the Union's petition for review is dismissed. The dismissal is without prejudice to the Union's right to file a petition for review at a later time if the conditions governing review are met and the Union chooses to file such an appeal. It is noted, in this regard, that the Union's petition for review encompassed approximately 111 proposals. In addition, it appears that the Agency's statements were submitted to the Union before the parties engaged in face-to-face collective bargaining. The parties are urged to explore their respective positions and proposals with a sincere resolve to reach agreement bilaterally.
For the Authority.
Alicia N. Columna
Director, Case Control Office
(If blank, the decision does not have footnotes.)