American Federation of Government Employees, National GSA Council and General Services Administration (Authority decision, October 8, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed that GSA tell employees about their right to union representation at the start of an investigation. GSA stated in a June 27, 1985 memorandum of understanding that the proposal was nonnegotiable insofar as it would bind the Office of Inspector General. The Authority treated that statement as the agency's written allegation, which started the 15-day filing period for a negotiability petition. The union's September 4 petition was late, and GSA's later repetition of its position did not restart the clock. The Authority dismissed the petition without deciding whether the proposal was negotiable.

Decision snapshot

• Authority: Negotiability petition deadline under 5 U.S.C. § 7117(c)(2).
• Outcome: Petition dismissed as untimely.
• Key point: GSA's written allegation in the June 27 memorandum started the filing period; repeating it later did not restart that period.

Full text (FLRA public release)

[ v20 p768]
20:0768(50)NG

The decision of the Authority follows:

20 FLRA NO. 50

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL GSA COUNCIL

Union

and

GENERAL SERVICES ADMINISTRATION

Agency

Case No. 0-NG-1175

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 and section 2424.1 of the Authority's Rules and Regulations on a petition for review of negotiability issues filed by the Union. For the reasons indicated below, it has been determined that the Union's petition for review was untimely filed and must be dismissed on that basis.

During the course of negotiations between the parties, a dispute arose concerning the negotiability of a Union proposal concerning the Agency's obligation to advise an employee of the right to Union representation at the outset of an investigation. On June 27, 1985, the parties entered into a Memorandum of Understanding, which states in pertinent part that, "The Employer has advised the Union of its position that the proposal is nonnegotiable to the extent it would bind the Office of Inspector General, because the OIG is an 'independent arm of the agency.'" Thus, the Agency's written allegation was set forth in the parties' Memorandum of Understanding of June 27, 1985, and the time limit for filing a petition for review of the negotiability dispute involved began to run from that date. 1

Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the time limit for filing a petition for review of negotiability issues is 15 days after service on the Union of the [ v20 p448 ] Agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained.

By means of the parties' Memorandum of Understanding of June 27, 1985, the Union was served with the Agency's allegation of nonnegotiability in this case. Therefore, under section 2424.3 of the Authority's Rules and Regulations, the petition for review had to be filed, that is, received in the national office of the Authority, no later than the close of business on July 12, 1985. However, the petition for review was not filed until September 4, 1985, and thus was untimely. The fact that the Union on August 12, 1985, requested another allegation of nonnegotiability concerning the same proposal, and that the Agency on August 19, 1985, responded by reiterating its previous position contained in the Memorandum of Understanding does not change the measuring date from June 27th to August 19th.

Accordingly, as the Union's petition for review was untimely filed, and apart from other considerations, it is hereby dismissed. 2

For the Authority.

Issued, Washington, D.C., October 8, 1985

Harold D. Kessler
Managing Director for Case Processing

[ v20 p449 ]

FOOTNOTES

Footnote 1 The parties' Memorandum of
Understanding amounts to a written request by the Union for an allegation and a simultaneous written response by the Agency alleging the matter proposed to be nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 3790 and The Department of Interior, Bureau of Land Management, 7 FLRA 393 (1981).

Footnote 2 In view of the disposition of the
subject negotiability appeal, it is unnecessary for the Authority to rule on the Agency's motion to dismiss filed on September 19, 1985.