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49:1517(137)NG - - Intl. Federation of Professional and Technical Engineers, Local 777 and Army, Corps of Engineers, Chicago, IL - - 1994 FLRAdec NG - - v49 p1517

[ v49 p1517 ]
The decision of the Authority follows:

49 FLRA No. 137














July 8, 1994

On May 25, 1994, the Authority issued an Order directing the Union to show cause why its petition for review in the above-captioned case should not be dismissed for failure to meet the conditions governing review of negotiability issues. The Union filed a timely response to the Authority's Order. For the reasons set out below, the Union's petition for review must be dismissed.

The Authority's regulations require that any petition for review filed with the Authority must contain a statement setting forth the express language of the proposal sought to be negotiated as submitted to the Agency. 5 C.F.R. § 2424.4(a)(1). The conditions governing review of a negotiability issue include the requirement that there be "a matter proposed to be bargained." See National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 35 FLRA 1006 (1990). Absent a matter proposed to be bargained, a petition for review is prematurely filed and must be dismissed. Id. at 1006.

In response to the Authority's May 25 Order, the Union asserts that with the signing of "Executive Order 12871, all SUBJECTS covered by [section] 7106(b) [of the Statute] are bargainable . . .[, requiring] Management to bargain over the previously permissive areas covered by the Statute."(*) The Union requests that the Authority "order Management to bargain over these subjects in compliance with the Statute and the Executive Order." Union's response at Encl 1. The Union's response, however, did not contain any specific proposals.

It appears that the Union sought to meet with the Agency to negotiate on the numbers, types and grades of employees; positions assigned to organizational subdivisions; and the technology, methods and means of performing work. It also appears that the Union did not submit any specific proposals to the Agency for negotiation.

It is well established that the Authority will only consider a negotiability issue "[i]f an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter proposed to be bargained because, as proposed, the matter is inconsistent with law, rule or regulation[.]" 5 C.F.R. § 2424.1. See National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 32 FLRA 722 (1988). Identifying a potential area of collective bargaining does not frame a proposal over which the Authority can determine whether a duty to bargain exists.

Under these circumstances, the Union's petition for review does not meet the conditions for review set forth in section 7117 of the Statute and sections 2424.1 and 2424.4 of the Authority's Regulations. Accordingly, the Union's petition for review is 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.)

*/ Executive Order 12871, "Labor-Management Partnerships", issued October 1, 1993 (58 Fed. Reg. 52201-52203, Oct. 6, 1993), at Sec. 2. (d) directs the head of each agency to "negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]" Section 7106(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) (5 U.S.C. § 7106(b)(1)) provides:

(b) Nothing in this section shall preclude any agency and labor organization from negotiating--

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work[.]