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37:0914(75)NG - - AFGE and Army, Fort Buchanan, San Juan, PR - - 1990 FLRAdec NG - - v37 p914

[ v37 p914 ]
The decision of the Authority follows:

37 FLRA No. 75












October 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerns the negotiability of one proposal. For the reasons set forth below, the petition for review is dismissed.

As explained more fully below, the Union filed the appeal pursuant to our order issued May 15, 1990. 35 FLRA 1105. In its answer to the appeal, the Department of Defense (Agency) argued that the filing did not comply with the Authority's Rules and Regulations, and, therefore, that the negotiability appeal should be dismissed. However, the Agency stated that if it were determined that the appeal was properly filed, it would withdraw its allegation that the proposal is nonnegotiable.

We conclude that the appeal was properly filed. Therefore, as the Agency has withdrawn its allegation of nonnegotiability, we will dismiss the Union's petition for review.

II. Background

This appeal has its origins in the remand of an unfair labor practice case from the United States Court of Appeals for the District of Columbia Circuit, American Federation of Government Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761). The court remanded Department of Defense, Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 24 FLRA 971 (1986). In that case, it was undisputed that Fort Buchanan had unilaterally terminated the post exchange privileges of civilian bargaining unit employees. The complaint alleged that by such acts, the Respondents, Department of Defense, Department of the Army, and Fort Buchanan, violated section 7116(a)(1) and (5) of the Statute. However, Respondent Fort Buchanan asserted as a defense to the unfair labor practice complaint that it was prevented from bargaining over the cancellation of the exchange privileges by an agency regulation for which there was a compelling need. 24 FLRA 971 (1986).

The Authority concluded that the Respondents were not obligated to bargain about post exchange privileges of civilian employees because the privileges had not been shown to be conditions of employment under section 7103(a)(14) of the Statute. Accordingly, the Authority dismissed the complaint. In view of this finding, the Authority found it unnecessary to address the question of whether there was a compelling need for the regulation. 24 FLRA at 976.

In AFGE, Local 2761, the court reversed the Authority's decision and found that post exchange privileges for Respondent Fort Buchanan's civilian employees are a condition of employment within the meaning of section 7103(a)(14) of the Statute. As the Authority had not considered the compelling need defense raised by the Respondents in the unfair labor practice case, the court granted the Authority's motion for clarification and remanded the case to the Authority for action consistent with the court's opinion. AFGE, Local 2761, 866 F.2d at 1449.

In our order on remand, 35 FLRA 1105, we noted the U.S. Supreme Court's holding in FLRA v. Aberdeen Proving Ground, 485 U.S. 409 (1988), that a compelling need allegation cannot be addressed in an unfair labor practice case. At the time the unfair labor practice case was argued and decided, however, the Authority's position was that compelling need questions could be decided in unfair labor practice proceedings. Therefore, we were faced with the need to determine the compelling need issue in the proper forum while dealing fairly with the Union, which had filed the charge in this case at a time when the previous view of the law controlled. In particular, if we had dismissed the complaint in the unfair labor practice case because it involved a compelling need defense, the Union would have been precluded by section 7118(a)(4)(A) of the Statute from refiling the complaint even if a negotiability proceeding under section 7117(b) later determined that there is no compelling need for the regulation at issue.

To accommodate those extraordinary circumstances, we held the unfair labor practice case in abeyance and offered the Union the opportunity to file a negotiability appeal under section 7117(b) so that the determination of whether there is a compelling need for the regulation at issue could be made in a negotiability proceeding. We noted that if such an appeal were filed, we would first make a determination on the appeal and then decide the unfair labor practice case in accordance with both the decision of the court that post exchange privileges are a condition of employment and our negotiability determination. 35 FLRA at 1107.

The Union filed a negotiability appeal within the time granted in our order. The Agency filed a response and the Union filed a response to the Agency's position.

III. Positions of the Parties

The Agency argues that the negotiability appeal is deficient as failing to meet the requirements of section 2423.3 of the Authority's Rules and Regulations. That section provides:

§ 2424.3 Time limits for filing.

The time limit for filing a petition for review is fifteen (15) days after the date the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the exclusive representative. The exclusive representative shall request such allegation in writing and the agency shall make the allegation in writing and serve a copy on the exclusive representative: Provided, however, That review of a negotiability issue may be requested by an exclusive representative under this subpart without a prior written allegation by the agency if the agency has not served such allegation upon the exclusive representative within ten (10) days after the date of the receipt by any agency bargaining representative at the negotiations of a written request for such allegation.

The Agency asserts that as the Union did not ask for a written allegation of nonnegotiability, and as the Agency did not provide it with an unsolicited written allegation, Authority review is contrary to the Authority's Rules and Regulations and unsupported by case precedent.

The Agency states, however, that if the Authority finds that the petition was properly filed, the Agency "withdraws the alleged allegation of nonnegotiability." Agency's Response at 5.

In its response, the Union states that in light of the Agency's statement of intention to withdraw the allegation of nonnegotiability should the Authority determine that the Union's appeal was properly filed, no controversy exists as to the merits. Therefore, the Union contends, it would not serve the purposes of the Statute to dismiss the Union's appeal of the allegation of nonnegotiability. Union's Response to Agency's Position at 6, 11.

The Union also argues that the requirements of the Rules and Regulations effectively were met. It asserts that the unfair labor practice charge was the equivalent of a request for an allegation of nonnegotiability from the Agency, and that the Agency's reliance in the unfair labor practice case on nonnegotiability because of the conflict with a regulation for which there is a compelling need was the equivalent of a written allegation of nonnegotiability by the Agency. Id. at 6, 8-11.

IV. Analysis and Conclusions

A. The Union's Negotiability Appeal Was Properly Filed

We must first consider whether the appeal is properly before us. In our order, we directed that, in the circumstances outlined above, if the Union wished to file a negotiability appeal it could do so under section 7117(b) of the Statute. The Authority then could make a determination in accordance with the Statute as to the Agency's compelling need allegation. The appeal filed by the Union is consistent with the Statute and our order.

The Agency relies on Authority regulations, not statutory requirements, in arguing that the Union was required to submit a written request for an allegation of nonnegotiability and to obtain a written allegation in response by the Agency. The purpose of these regulations concerning written requests by unions for statements of nonnegotiability and answers by agencies is to avoid disputes over whether and when an agency has made a statement of nonnegotiability. Unlike statutory requirements, such regulations may be waived for good cause shown. See, for example, section 2429.23(b) of the Rules and Regulations.

We conclude that when it raised a compelling need defense in the unfair labor practice case, the Agency effectively alleged that the matter at issue is nonnegotiable. In the circumstances of this case, it would not promote the purposes and policies of the Statute to find that the appeal was not properly filed when the parties were fully aware of the Agency's position regarding the negotiability of the provision at that time. We note that this rationale was implicit in our earlier order. Moreover, as the Union filed its appeal within the period granted in our order in 35 FLRA 1105, that appeal was timely filed.

B. The Agency's Withdrawal of Its Allegation of Nonnegotiability

We have determined that the appeal was properly filed. Accordingly, the issue of the negotiability of the Union's proposal is properly before us. Therefore, as the Agency has withdrawn its allegation of nonnegotiability, the Union's petition for review will be dismissed.

V. Order

The Union's petition for review is dismissed.

(If blank, the decision does not have footnotes.)