[ v48 p389 ]
The decision of the Authority follows:
48 FLRA No. 34
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. ENVIRONMENTAL PROTECTION AGENCY
ORDER DISMISSING PETITION FOR REVIEW
August 27, 1993
The Union has filed a petition for review of negotiability issues in the above-captioned case. On June 17, 1993, the Authority issued an Order directing the Union to show cause why its petition should not be dismissed for failure to meet the conditions governing review of negotiability issues. The Union filed a timely response. On May 17, and June 30, l993, the Agency filed requests for dismissal of the Union's petition. 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 April 2, l993, the Union proposed to open or resume bargaining with the Agency on 4 issues. In the same memorandum, the Union submitted its written proposals, and requested that the Agency respond in writing whether its proposals were negotiable. The Agency did not respond to the Union's request for an allegation of nonnegotiability.(*) On April 27, l993, the Union filed its petition for review. Where a union files a petition for review in the absence of an agency response to a request for a written allegation of nonnegotiability, the Authority views the agency's failure to respond as a constructive declaration of nonnegotiability that gives rise to a right of appeal to the Authority under 5 C.F.R. § 2424.3. See American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 372 (1990). The Union's petition for review was timely filed and otherwise satisfies applicable regulatory requirements.
However, the Agency, in its May 17, l993, request to dismiss, states that "[w]e have not bargained nor taken any position concerning the negotiability of the Union's proposals." In addition, the Union states, in its response to show cause, that it "requests the Authority to issue a summary judgment ordering the Agency to open bargaining on these issues within ten days." As it appears from these statements that both parties would prefer to bargain over the proposals, and as the Union was not required to file a petition for review when the Agency failed to respond to its request for an allegation, the Authority will dismiss the Union's petition for review 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.
The parties are urged to explore their respective positions with a sincere resolve to reach agreement bilaterally. To the extent that the parties remain in dispute over whether the Agency has a duty to bargain over the proposals, the dispute should be resolved in other appropriate proceedings.
For the Authority.
Alicia N. Columna
Director, Case Control Office
(If blank, the decision does not have footnotes.)
*/ The Union states that a copy of an April 29, l993, memorandum from the Agency acknowledging receipt of its proposals was attached to its response to show cause. However, the Authority did not receive any of the attachments referenced in the Union's response.