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47 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 858

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL CROP INSURANCE CORPORATION

KANSAS CITY, MISSOURI

(Agency)

0-NG-2115

_____

DECISION AND ORDER A NEGOTIABILITY ISSUE

May 12, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal which addresses the parties' selection of, and payment for, court reporting services for hearings and depositions. For the reasons stated below, we find the proposal negotiable.

II. Proposal

Not less than thirty (30) calendar days before any scheduled arbitration hearing or deposition, the Parties will, in writing, jointly contact Jay E. Suddreth and Associates to arrange for court reporting services. These services shall be paid for jointly by the Parties in accordance with Article 19.2(B) of the Negotiated Agreement[;]

or[]

Not less than thirty (30) calendar days before any scheduled arbitration hearing or deposition, the Agency will provide the Union written proof that it has contracted with another court reporting service for the hearing/deposition. The proof provided the Union will include a statement that the court reporter chosen will utilize a computerized stenotype method of reporting, and verifiable references from the company. These services shall be paid for in full by the Agency. Further, if the Union is not satisfied [with] the accuracy of the transcript, or does not receive its certified copy of the transcript within five (5) days of the close of the hearing, the Agency shall pay the cost of the entire hearing.

III. Positions of the Parties

Although the Union requested an allegation of nonnegotiability, the Agency did not furnish the Union with a written declaration of nonnegotiability, nor did it file a statement of position with the Authority.⁽¹⁾ The Union filed only a petition for review.

In its petition for review, the Union states that the proposal was submitted in response to the Agency's change in the parties' past practice of selecting and paying for reporting services.⁽²⁾ The Union further states that the Agency orally declared the proposal nonnegotiable when the parties began their negotiations.

The Union argues that the selection and payment of court reporters is "clearly negotiable." Petition at 2. The Union further contends that, although the Agency is free to enter into contracts for administrative Agency matters, contracts for services relating to labor relations matters must be the result of the parties' mutual agreement.

IV. Analysis and Conclusions

We find that the proposal is negotiable. The Agency has provided no rationale to the Union or to the Authority to support its assertion that the proposal is nonnegotiable, and none is apparent to us. In particular, we are unaware of any law, rule or regulation with which the proposal conflicts, and there is no basis on which to conclude that the proposal interferes with the exercise of any management rights. Accordingly, we conclude that the proposal is negotiable.

We note that the parties bear the burden of creating a record upon which the Authority can base a negotiability determination. A party failing to meet that burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981).

V. Order

The Agency must, upon request or as otherwise agreed to by the parties, bargain on the proposal.⁽³⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. On December 11, 1992, the Union, by regular mail, requested that the Agency provide it with an allegation that the disputed proposal was nonnegotiable. As of the date of the petition for review, January 12, 1993, the Union had not received a reply to its request. Pursuant to section 2424.3 of the Authority's Rules and Regulations, the Union is permitted to file a petition for review without a written allegation of nonnegotiability by the agency. The Agency's failure to respond to the Union's request constitutes a constructive declaration of nonnegotiability, giving rise to a right of appeal to the Authority. See, for example, American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 676-77 (1990).

2. Initially, the Agency refused to negotiate over its decision to enter into a contract with a specific court reporting service. The Union filed an unfair labor practice (ULP) charge with the Authority's Denver Regional Office. This charge, docketed as case number DE-CA-20806, was settled by agreement of the parties to negotiate over the procedures for obtaining court reporting services.

3. In finding this proposal to be negotiable, we make no judgment as to its merits.

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