[ v45 p230 ]
The decision of the Authority follows:
45 FLRA No. 19
The Union has filed a petition for review of negotiability issues in this case. The Agency filed a statement of position and the Union filed a reply brief. 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 June 26, 1991, in response to a drug testing plan proposed by the Agency, the Union submitted a proposal containing approximately 210 sections. In an internal Agency memorandum dated July 25, 1991, an Agency attorney advised the Agency's Chief of Labor Management Relations that over 100 sections of the proposal were deemed nonnegotiable. Although the memorandum stated that it included materials to be "transmitted to management negotiators for the purpose of providing guidance and documentation for bargaining" with the Union, the record does not indicate that bargaining took place. Instead, approximately 8 months later, on March 31, 1992, the Agency provided the Union with a copy of the memorandum and the Union filed the instant petition for review.
A union is not required to file a petition for review of an unrequested allegation of nonnegotiability. Rather, a union may ignore such an allegation and elect to request in writing a written allegation at a later time. For example, American Federation of Government Employees, Local 2430 and U.S. Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 36 FLRA 245 (1990) (VA). There is no indication in the record that the Union requested in writing an allegation of nonnegotiability concerning its proposal. Accordingly, it appears that the Agency's memorandum constitutes an unsolicited allegation. As such, the Union was not required to file a petition for review in response to receipt of the memorandum.
Although the Union was not required to file a petition for review in response to the memorandum, the Union could elect to do so. See id. at 246. In this case, the Union's petition was timely and otherwise satisfies applicable regulatory requirements. However, it is unclear as to whether the Union actually desires a negotiability decision at this time. See id. at 247. In this regard, the Union states that:
The [A]gency . . . has chosen to flatly reject more than half of the Union's bargaining proposals out-of-hand and without so much as the benefit of negotiation or discussion over them. Such a situation does not make for a healthy working relationship, nor will it result in a "win-win" agreement between the parties.
Reply Brief at 13.
As it appears from this statement that the Union would prefer further bargaining rather than negotiability resolution at this time, and as the Union was not required to file a petition for review in response to the unrequested allegation of nonnegotiability, we will dismiss the petition for review. See id. 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.
As noted previously, the petition for review encompasses over 100 sections of a proposal and it appears that the parties' positions regarding the negotiability of the proposal were developed before face-to-face bargaining. Therefore, the parties are urged to explore their respective positions with a sincere resolve to reach agreement bilaterally. In view of the complexity of this dispute, the parties also are urged to consider whether third-party assistance would be useful in resolving the dispute.
For the Authority.
Alicia N. Columna
Director, Case Control Office
(If blank, the decision does not have footnotes.)