[ v56 p59 ]
56 FLRA No. 8
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 48
U.S. DEPARTMENT OF INTERIOR
BUREAU OF INDIAN AFFAIRS
OLYMPIC PENINSULA AGENCY
DECISION AND ORDER ON
February 29, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
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). [n1]
For the reasons set forth below, we find that the Union's petition for review fails to meet the conditions governing review of a negotiability appeal. Therefore, we dismiss the petition without prejudice to the Union's right to refile the appeal after fulfilling the conditions governing review of negotiability issues.
The Agency sent a memorandum (Agency Memorandum) to a bargaining unit employee listing instructions the employee was to follow when handling Agency correspondence. In response, the Union sent a letter (Union Bargaining Request) to the Agency requesting to "bargain on a change in working condition[s]" alleged to be caused by the Agency Memorandum.
The Agency responded (Agency Response) by advising the Union in writing that any changes made by its Agency Memorandum were nonnegotiable as they concerned management's right to assign work. Moreover, the Agency stated that any changes were de minimis in nature and did not alter policy or procedure.
The Union treated the Agency Response as an allegation of nonnegotiability and filed a petition for review (Petition for Review). [n2] The Authority subsequently issued an Order to Show Cause, notifying the Union that the Petition for Review "does not include the express language of the proposal(s) sought to be negotiated as submitted to the Agency." Order to Show Cause at 2. [n3] The Authority also stated that "[a]bsent a matter proposed to be bargained, a petition for review is prematurely filed and must be dismissed." Id. at 1. The Order to Show Cause required the Union to provide the "express language of the proposal(s) sought to be negotiated as submitted to the Agency." Id. at 3. [n4]
The Union filed its response (Supplemental Submission) to the Order to Show Cause. The proposals identified as having been provided to the Agency were attached as Enclosures 1 and 2 to the Supplemental Submission. Enclosure 1 is a copy of the original Union Bargaining Request, with part of the text therein underlined. [n5] Enclosure 2, included in the appendix of this decision, is a document setting forth a list of recommendations [ v56 p60 ] from the Union to the Agency in response to the Agency Memorandum.
The Agency, thereafter, filed its Statement of Position, and the Union filed its Response.
III. Positions of the Parties
A. The Agency
The Agency contends that the petition for review should be dismissed for failing to meet the conditions governing review of negotiability appeals. According to the Agency, the Union never submitted a specific proposal for bargaining. Statement of Position at 3, 4. Instead, the Agency argues, the Union merely requested to bargain on a change in working conditions. Id.
Moreover, the Agency maintains that it was unaware of Enclosure 2 until receipt of the Union's Supplemental Submission, nearly 30 days after the Petition for Review was filed. Id. at 4. In any event, the Agency maintains that while Enclosure 2 "contains some suggestions, it falls short of a specific proposal to negotiate." Id.
B. The Union
The Union argues that the Agency was aware of Enclosure 1 because it was a part of the original Union Bargaining Request. Supplemental Submission at 1. The Union contends that the underlined portion of Enclosure 1 constitutes the exact proposal submitted to the Agency prior to filing the Union's Petition for Review. Id.
In addition, the Union argues that the bargaining unit employee, who was the subject of the Agency Memorandum, tried to submit Enclosure 2 to his supervisor, but was rebuffed. Response at 9.
IV. Analysis and Conclusions
A. Conditions Governing Review
A union is required to submit the express language of the proposal(s) to an agency for consideration prior to filing a petition for review. 5 C.F.R. § 2424.4(a)(1). As the Authority has previously stated, the conditions governing review of a negotiability issue include the requirement that there be a "matter proposed to be bargained[.]" 5 C.F.R. § 2424.1; See also International Federation of Professional and Technical Engineers, Local 777 and U.S. Department of the Army, Corps of Engineers, Chicago, Illinois, 49 FLRA 1517, 1518 (1994). Only when the express language of a proposal is submitted to an agency, and the agency has been given the opportunity to respond, can the conditions governing review contained in the Authority's Regulations be satisfied. American Federation of Government Employees, Local 1426 and U.S. Department of the Army, Fort Sheridan, Illinois, 45 FLRA 867, 871 (1992).
Moreover, 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. A petition for review must contain a copy of the "allegation in writing that the matter, as proposed, is not within the duty to bargain in good faith . . . ." 5 C.F.R. § 2424.4(a)(3). [n6]
B. Enclosure 1 Does Not Constitute a Proposal
The Union never advised the Agency that any part of the Union Bargaining Request (which encompasses the language set out in Enclosure 1) was intended to be a matter proposed to be bargained. In the Authority's Order to Show Cause at 1-2, the Union was advised that the Union Bargaining Request submitted to the Agency lacked the specificity necessary to constitute a "matter proposed to be bargained" under the Authority's negotiability regulations.
Notwithstanding the addition of underlining to a portion of the original Union Bargaining Request, the [ v56 p61 ] language of Enclosure 1 constitutes a request to bargain on alleged changes to working conditions, rather than a specific matter proposed to be bargained. Both the document in its entirety and the underlined portion in particular reflect a demand that the Agency afford the Union its rights protected by the Statute, i.e., notice of the matters proposed to be changed, and an opportunity to negotiate with the Agency over those proposed changes.
As noted in the Order to Show Cause, Authority precedent finds that demands to bargain in response to proposed changes to conditions of employment do not constitute proposals subject to the Authority's negotiability appeal process. 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) (union requests to negotiate "to the extent provided by law" over a proposed change to conditions of employment held not to constitute a specific proposal for negotiation). See also National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA 451, 453 (1986) (union "requests to bargain to the full extent required by law, rule and regulation" in response to proposed change in conditions of employment was "nothing more than a general request to bargain" that was not sufficiently specific and delimited to meet the requirements for review under the Authority's negotiability appeal process).
Enclosure 1 constitutes a general demand to bargain. Accordingly, consistent with the foregoing precedent, we affirm and conclude that Enclosure 1 does not satisfy the conditions governing review of negotiability issues, as set forth in 5 C.F.R. Part 2424.
C. Enclosure 2 Was Never Submitted to the Agency Prior to Filing the Petition for Review
The record fails to establish that the Union submitted the recommendations found in Enclosure 2 to the Agency before filing its petition for review. We note that the Union also failed to submit these recommendations as part of its original petition for review. Accordingly, while the recommendations found in Enclosure 2 may constitute specific proposals, Enclosure 2 is not properly before us. National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 488 (1991); American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 137 (1990); See also Order to Show Cause at 3.
Based on the foregoing, and pursuant to the Authority's Order to Show Cause, we dismiss the Union's petition for review, without prejudice, for failure to meet the conditions governing review of negotiability issues.
Suggested Process Revised Correspondence Process
A. Do one Draft copy and mark it Draft.
B. Circulate it for review and information to all staff.
C. Have Supervisor and Approval authority make any necessary adjustments.
D. Return Draft to originator in the A.M.
E. Originator prepare's in final form for approval and signature in the P.M.
F. Mail and make necessary distributions.
Footnote # 1 for 56 FLRA No. 8
The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
Footnote # 2 for 56 FLRA No. 8
Footnote # 3 for 56 FLRA No. 8
In its Petition for Review, the Union included a paragraph that it claimed was the text of the proposal. That paragraph, which was not part of the Union Bargaining Request, states: The Union proposes that the Agency provide the changes in working conditions in writing to the Union to allow consultation, bargaining and negotiation as well as the opportunity to submit proposals addressing alternate methods, modifications addressing employee needs, appropriate arrangements, and adverse impact on the bargaining unit employees. Specifically, the Union proposes that the Agency comply with CBA article 32 requirements. That the Agency rescind the change in working conditions implemented without Union notification and return to "Status Quo Ante".
Union's Petition for Review at 2. The Authority stated in the Order to Show Cause that it would not consider this "amended text" because it appeared from the record that it had not been previously submitted to the Agency in accordance with the Authority's Regulations. Order to Show Cause at 2 citing 5 C.F.R. § 2424.4(a)(1). This ruling has not been challenged.
Footnote # 4 for 56 FLRA No. 8
Footnote # 5 for 56 FLRA No. 8
I can file an unfair labor practice because of your agency's UNION BYPASS or you can withdraw the change in working conditions, provide the UNION with a proposal which shows fully what changes are proposed, and give the UNION an opportunity within 15 days to consult and propose amendments, modifications or other proposals and then meet to negotiate within 5 days of receipt of the UNION proposals.
Footnote # 6 for 56 FLRA No. 8
See also 5 C.F.R. § 2424.11(a), under the Authority's current regulations, which sets forth a limited circumstance when an exclusive representative need not include an agency's written statement of nonnegotiability in its petition for review, where the agency fails to properly respond to such a request. The regulations applicable at the time of filing of this petition are nearly identical in scope and appear in 5 C.F.R. § 2424.3.