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46:0444(37)NG - - NTEU and HHS, Region X, Seattle, WA - - 1992 FLRAdec NG - - v46 p444

[ v46 p444 ]
The decision of the Authority follows:

46 FLRA No. 37












October 30, 1992

The Union has filed a petition for review of negotiability issues in the above-captioned case. The Agency has filed a motion to dismiss and the Union has filed a response. For the reasons which follow, the Union's petition for review is dismissed.

Under section 7117 of the Federal Labor Management Relations Statute (Statute) and section 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. 5 U.S.C. § 7117(a); 5 C.F.R. § 2424.1. American Federation of Government Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA 768, 769 (1987).

The documentation submitted by the parties indicates that the parties signed a Memorandum of Understanding (MOU) on July 9, l992, on the implementation of the Federal Employees Pay Comparability Act of l990 as it pertains to the time off award as an incentive award. On July 23, l992, the Union requested an allegation of nonnegotiability from the Agency on proposals on the time off award as a performance award. The Agency provided a timely response to the Union's request and stated that the "employer has not and will not declare the cited NTEU [Union] proposals non-negotiable". Additionally, the Agency, in its August 21, l992, motion to dismiss states that the Agency never declared the Union's proposals to be nonnegotiable. The Union, in response to the Agency's motion, states that "the Agency clearly claimed the proposal is nonnegotiable during the course of negotiations" and that the Agency has not withdrawn its verbal allegations of nonnegotiability.(*/)

Section 2424.3 of the Authority's Rules and Regulations (5 C.F.R. § 2424.3) requires that "the agency shall make the allegation [or nonnegotiability] in writing and serve a copy on the exclusive representative." Thus, whatever may have transpired in oral exchanges between the parties at the bargaining table is not material to the resolution of a negotiability appeal. See, for example, American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 3181 and U.S. Department of Labor, Mine Safety and Health Administration, 32 FLRA 1214, 1220 (1988).

Accordingly, as the Agency has not declared the Union's proposals to be nonnegotiable there is no dispute before the Authority as to whether the Union's proposals in the above-captioned case are within the parties's duty to bargain under 5 U.S.C. § 7117. The Union's petition for review is, therefore, dismissed without prejudice to the Union's right to file an appeal if the conditions governing review are met and the Union chooses to file such an appeal. See 5 C.F.R. Part 2424.

For the Authority.

Alicia N. Columna

Director, Case Control Office

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

*/ The Union, in its response, states that it withdrew its proposal to use time off in the performance context in order to obtain from the Agency agreement on the MOU on the time off award program. The Union further states that "[e]xperience indicates the FLRA issues negotiability decisions approximately nine to twelve months after an appeal is initially filed by the union. For this reason, it made sense for the union to pursue the instant appeal for the future negotiations". Section 2429.10 of the Authority's Regulations states that the Authority will not issue advisory opinions.