44:0405(34)NG - - NTEU and Treasury, IRS, Ohio District, Cincinnati, OH - - 1992 FLRAdec NG - - v44 p405

[ v44 p405 ]
The decision of the Authority follows:

44 FLRA No. 34













March 17, 1992

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 appeal concerns one proposal, which requires the Agency to take certain actions with respect to unit employees' use of public transportation. The Agency did not file a statement of position and the Union did not file a reply brief. For the following reasons, we find that the proposal is negotiable.

II. Proposal

Subsidized Public Transportation


The Cincinnati District of the Internal Revenue Service and Chapters 9, 27, 75 of the National Treasury Employees Union agree that it is in the public interest to encourage the employees of the Cincinnati District to use public transportation because, among other reason[s]:

* It benefits the environment

* It is safe

* It reduces automotive congestion

* It conserves energy

* It improves employee morale and punctuality

1. The employer agrees to take all necessary actions within its authority to subsidize the use of public transportation, to the extent permissible by law.

2. NTEU Chapters 9, 27, 75 agree to minimize the administration burden placed on the employer in the [sic] connection with this agreement. Upon the request of the employer and to the extent practicable[,] NTEU agrees to help with the distribution of the subsidies.

III. Positions of the Parties

A. The Agency

As noted, the Agency did not file a statement of position. In its declaration of nonnegotiability, the Agency stated as follows, in pertinent part:

[The proposal] would be negotiable if the criteria established in the Clean Air or Transit Acts are met. . . . In this case, management has made the determination that the requirements established by statute have not been met; and unless there is a change in the statute language or the enactment of a local/state law mandating the use of public funds for subsidies, this issue cannot be negotiated.

Petition for Review at 2 of Attachment 2.

B. The Union

The Union included no arguments in its petition for review. As noted, the Union did not file a reply brief.

IV. Analysis and Conclusions

It is well established that the parties bear the burden of creating a record on which the Authority can make a negotiability determination and that a party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). In this case, the Agency did not file a statement of position. Moreover, in its declaration of nonnegotiability, the Agency conceded that the proposal would be negotiable if certain legal requirements were satisfied.(1)

The proposal expressly requires the Agency to take only such actions as are "within its authority" and "permissible by law." As such, there is no basis on which to conclude that the proposal conflicts with law.(2) Accordingly, as no other basis for finding the proposal nonnegotiable is asserted or apparent, we conclude that the proposal is negotiable.(3)

V. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning the disputed proposal.(4)

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

1. It appears from the Agency's declaration that only paragraph 1 of the proposal is in dispute.

2. As the proposal expressly requires adherence to applicable statutory requirements, it is unnecessary to set forth those requirements here or otherwise address the Agency's specific references to certain statutes.

3. We note that section 629 of the Treasury, Postal Service and General Government Appropriations Act, 1991, Pub. L. No. 101-509, 104 Stat. 1478 (1990) authorizes Federal agencies to use appropriated funds to participate in certain state and local programs that encourage the use of public transportation.

4. In finding the proposal to be negotiable, we make no judgment as to its merits.