71 FLRA No. 169                                                                                                                                                              

 

NATIONAL FEDERATION

OF FEDERAL EMPLOYEES
INTERNATIONAL ASSOCIATION

OF MACHINISTS AND

AEROSPACE WORKERS
FEDERAL DISTRICT 1

FEDERAL LOCAL 1998
(Union)

and

UNITED STATES

DEPARTMENT OF STATE

CONSULAR AFFAIRS
PASSPORT SERVICES
(Agency)

 

0-NG-3457

 

_____

 

DECISION AND ORDER

DISMISSING NEGOTIABILITY APPEAL

 

July 20, 2020

 

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

 

I.             Statement of the Case

 

                In this case, we find that the Union’s petition for review fails to present issues that the Authority can resolve under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute).^[1]  Accordingly, we dismiss the petition without prejudice to the Union’s right to refile a negotiability appeal at a later date, should it choose to do so, provided that the conditions for review of such an appeal are met.

 

II.            Background

 

The Union requested to negotiate a memorandum of agreement (MOA) covering procedures for random audits of bargaining-unit employees.  The Agency refused to bargain over the proposed MOA at the local level, and the Union responded by filing a           local grievance.  The Agency processed the grievance as a step three national grievance and denied it.

 

Thereafter, the Union requested, in writing, a written allegation of nonnegotiability for the MOA on December 16, 2019.^[2]  The Agency did not respond.  The Union filed its petition for review on January 10, 2020,^[3] submitting the MOA as seven proposals.

 

On January 23, the Authority’s Office of Case Intake & Publication (CIP) issued an order to show cause (January 23 Order) directing the Union to show cause why its petition should not be dismissed because there appeared to be a grievance “directly related” to the Union’s petition.^[4]  In a February 14 response, the Union submitted correspondence indicating that the grievance had been withdrawn and, therefore, there were no grievances or other pending proceedings related to the petition.^[5][6]

  

In its statement of position (statement), the Agency argues that the Union’s petition is deficient because the Union, contrary to the parties’ agreement, attempted to bargain the proposals for random auditing procedures at the local rather than the national level of recognition.^[7]  Because the Agency rejected the Union’s request to bargain below the national level of recognition, the Agency asserts that the petition presents only a bargaining-obligation dispute.^[8]

 

On March 4, CIP issued a second order to show cause (March 4 Order) directing the Union to show cause why the Authority should consider the Union’s petition because it appeared to exclusively present a bargaining-obligation dispute that the Authority will not consider in a negotiability proceeding.^[9]  On March 17, the Union filed a timely response to the March 4 Order in which it argued that the Authority should consider the petition because the Agency did not respond to the Union’s request for a written allegation of nonnegotiability, and there was no longer a pending grievance related to the petition.^[10]

 

III.          Analysis and Conclusion:  The Authority is without jurisdiction to review the Union’s petition.

 

Under § 7117 of the Statute and § 2424.2 of the Authority’s Regulations, the Authority will consider a petition for review of a negotiability dispute only when it has been established that the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation.^[11]  In contrast to a negotiability dispute, a bargaining‑obligation dispute is a disagreement between a union and an agency concerning whether, in the specific circumstances of a particular case, the parties must bargain over a proposal that otherwise may be negotiable.^[12]  If a case involves only a bargaining‑obligation dispute, then the Authority will not resolve that dispute in a negotiability proceeding.^[13]  Instead, the Authority will dismiss the petition, or the portion of the petition, that presents only a bargaining‑obligation dispute.^[14] 

 

The principal dispute between these parties is whether the Agency is required to bargain with the Union over the implementation of a national auditing program   at the local level.  The Union submitted proposals for bargaining at the local level, and the Agency communicated to the Union that it would not bargain over its random auditing procedures below the national level.^[15]  The bargaining of proposals below the level of recognition is a permissive subject, and a party’s refusal to bargain at a certain level of recognition presents only a bargaining‑obligation dispute.^[16]  Because the Agency declined to bargain the Union’s proposals solely because they were raised at the local level, the proposals raise only a bargaining-obligation dispute rather than a negotiability dispute.^[17] 

 

The Authority’s March 4 Order directed the Union to show that the proposals presented a negotiability dispute and not a bargaining-obligation dispute exclusively.  In its response, the Union contends that the petition raises a negotiability dispute because the Union’s request for a written allegation remains unanswered, and there are no pending proceedings related to the petition.  However, the Agency has not disputed the negotiability of the proposals in either a written allegation or its statement of position, thus there is no dispute appropriate for resolution in a negotiability appeal.^[18]  Therefore, the Union’s arguments fail to demonstrate that there is a dispute as to whether any of the proposals are inconsistent with law, rule, or regulation.^[19]    

 

Consequently, the Union’s proposals present only a bargaining-obligation dispute.  The issues raised by the Union’s petition would be more appropriately addressed either through the Statute’s                      unfair-labor-practice provisions or through whatever mechanisms the parties may have adopted in their collective-bargaining agreement to handle such disputes.^[20]

 

IV.          Order

 

                We dismiss the petition for review without prejudice to the Union's right to file a negotiability appeal at a later date, should it choose to do so, provided that the conditions for review of such an appeal are met.