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 19 FLRA No. 97
 
 FEDERAL UNION OF SCIENTISTS AND
 ENGINEERS, NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES
 Union
 
 and
 
 DEPARTMENT OF THE NAVY
 Agency
 
                                            Case No. O-NG-1056
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This case is before the Authority pursuant to section 7105(a)(2)(E)
 of the Federal Service Labor-Management Relations Statute (the Statute)
 on a petition for review of negotiability issues filed by the Union.
 
    The record before the Authority indicates that during the course of
 negotiations the Union submitted three proposals concerning the
 utilization of office space.  The Union claims that the local agency
 bargaining representative orally declared the Union's proposals
 nonnegotiable, but did not respond to the Union's written request for a
 written allegation of nonnegotiability.  The Union then filed the
 instant petition for review with the Authority without a written
 allegation of nonnegotiability pursuant to section 2424.3 of the
 Authority's Rules and Regulations, as to whether the disputed proposals
 were within the duty to bargain.  Subsequently, in a letter to the
 Authority dated December 13, 1984, the Agency requested that the Union's
 petition for review be dismissed because, in its opinion, the proposals
 "either are not clearly nonnegotiable or it may be possible for the
 activity to develop negotiable positions . . . . "
 
    In these circumstances, i.e., since the Agency has stated in effect
 that it does not view the proposals as nonnegotiable, there is no issue
 as to whether these proposals are within the duty to bargain under the
 statute.  /1/
 
    Accordingly, and apart from other considerations, the petition for
 review in this case is hereby dismissed without prejudice to the union
 refiling should the agency assert the proposals to be nonnegotiable in
 the future.  Issued, Washington, D.C., August 19, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Cf. American Federation of Government Employees, AFL-CIO, Local
 3028 and Department of Health and Human Services, Public Health Service,
 Alaska Area Native Health Service, 13 FLRA 697 (1984) (wherein the
 Authority found that failure to respond to a union's request for an
 allegation was a constructive declaration of nonnegotiability so as to
 give rise to a right of appeal). 
 
 
 

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