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49 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

FOREST SERVICE COUNCIL

REGION 8

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

(Agency)

0-NG-2189

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 16, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

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) and concerns the negotiability of one proposal concerning physical fitness activities. For the following reasons, we conclude that the record is insufficient for us to make a negotiability determination regarding the proposal. Accordingly, we will dismiss the petition for review.

II. Background and Proposal

According to the record, the Agency decided to discontinue its practice of permitting up to one-half hour of administrative leave per day for employees to engage in physical fitness activities. In response, the Union proposed the following:

[I]nstead of eliminating the use of administrative leave . . . the [Agency's] policy [should] be changed to time-sharing. Specifically, employees wishing to use administrative leave for participating in the Wellness Program must match the administrative leave with an equal amount of personal time.

Petition for Review at 1.

III. Positions of the Parties

According to the Union, the Agency notified the Union that it considered the proposal nonnegotiable "on the grounds that there is a blocking . . . regulation."⁽¹⁾ Id. Although the Union requested a written declaration of nonnegotiability, the Agency did not furnish one and has not filed a statement of position with the Authority.⁽²⁾

The Union argues that the FPM Letter does not prevent the Agency from bargaining over the proposal. The Union also explains that the proposal does not interfere with management's right to deny requests for administrative leave "if job related reasons exist." Id.

IV. Analysis and Conclusions

In National Federation of Federal Employees, Local 2024 and U.S. Department of the Interior, Bureau of Land Management, Medford District Office, 48 FLRA 1411 (1994) (BLM, Medford District Office), we were presented with a substantially identical proposal.⁽³⁾ There, we were unable to determine the negotiability of the proposal because the record in that case was insufficient for us to understand the proposal. In particular, we found that the wording of the proposal was susceptible to differing interpretations and that the parties did not define its terms, and did not provide an example of how the proposal would operate. See id. at 1413.

The same situation exists in this case. The proposal calls for the Agency to adopt a "time-sharing" program in which employees must match the amount of administrative leave granted to them with an equal amount of "personal time." Petition for Review at 1. However, the parties have not defined the meaning of the term "time-sharing," and have not provided an example of how the proposal would operate. In our view, the proposal is subject to differing interpretations. For example, "time-sharing" may operate to increase the amount of duty time authorized for fitness activities by allowing an employee to match one-half hour of administrative leave with one-half hour of personal time, for a total of one hour authorized for fitness activities. On the other hand, "time-sharing" may enable employees to compensate for administrative leave by extending their duty day for an amount of time equal to that used for such activities.

As was the case in BLM, Medford District Office, the record is insufficient for us to make a negotiability determination regarding the proposal. Accordingly, we will dismiss the petition for review. We note, in this regard, that the parties bear the burden of creating a record on which the Authority can make a negotiability determination. Parties failing to meet their burden act at their own peril. See id.

V. Order

The petition for review is dismissed.

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

1. The Union cites Federal Personnel Manual Letter (FPM Letter) 792-23 as the "blocking" regulation. Petition for Review at 1. During the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See, FPM Sunset Document, Summary Table at 7. FPM Letter 792-23 has been abolished. See id.

2. 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. See, for example, National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 47 FLRA 613, 614 n.1 (1993).

3. In that case, the union proposed to maintain the agency's practice of granting "matching time" for participation in fitness activities. BLM, Medford District Office, 48 FLRA at 1412.

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