American Federation of Government Employees, Local 3804, AFL-CIO (Union) and Federal Deposit Insurance Corporation, Chicago Region, Illinois (Agency) (Authority decision, April 30, 1981)

FLRA interlocutory order. The Authority resolved a motion to dismiss some negotiability proposals but left other proposals pending. This is not a Final FLRA decision and does not start the judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

A union filed a timely but incomplete appeal about performance appraisal proposals, then supplied the missing proposal text and added unrelated proposals. The FDIC sought dismissal of the entire appeal. The Authority allowed correction of the timely appraisal appeal but rejected the unrelated additions as late. It denied the motion for the appraisal proposals and granted it for the others, leaving the appraisal issues for further proceedings.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c)(2).
• Outcome: Motion denied for appraisal proposals and granted for unrelated late proposals.
• Key point: A timely deficient petition could be corrected but could not add unrelated issues after the deadline.

Full text (FLRA public release)

[ v05 p561 ]

05:0561(71)NG

The decision of the Authority follows:

5 FLRA No. 71

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3804
Union

and

FEDERAL DEPOSIT INSURANCE
CORPORATION, CHICAGO REGION, ILLINOIS
Agency

Case No. 0-NG-254

DECISION AND ORDER ON MOTION TO DISMISS

THIS CASE IS BEFORE THE AUTHORITY ON THE UNION'S PETITION FOR REVIEW
OF NEGOTIABILITY ISSUES AND THE AGENCY'S MOTION TO DISMISS. THE
RELEVANT FACTS ARE AS FOLLOWS:

ON THE FIFTEENTH DAY AFTER THE AGENCY ALLEGED THAT CERTAIN UNION
PROPOSALS WERE NOT WITHIN ITS DUTY TO BARGAIN, THE UNION FILED WITH THE
AUTHORITY A DOCUMENT STYLED "RESPONSE OF EXCLUSIVE REPRESENTATIVE TO
AGENCY STATEMENT ON NON-NEGOTIABILITY" WHICH FAILED TO SET FORTH THE
TEXT OF PARTICULAR PROPOSALS IN DISPUTE. THE DOCUMENT CONTAINED THE
FOLLOWING STATEMENT:

THIS CASE GENERATES FROM NEGOTIATIONS BETWEEN AFGE LOCAL 3804 (THE
UNION) AND THE CHICAGO

REGION OF THE FDIC (THE EMPLOYER) WHERE THE UNION PRESENTED
BARGAINING PROPOSALS RELATING TO

PERFORMANCE APPRAISALS. THE EMPLOYER CLAIMED EXEMPTION FROM THE
OBLIGATION TO BARGAIN ON

THESE PROPOSALS ON THE BASIS THAT AS A GOVERNMENT CORPORATION, IT WAS
SPECIFICALLY EXCEPTED

FROM CHAPTER 43 OF THE CIVIL SERVICE REFORM ACT (THE ACT) AND
OTHERWISE THAT THE PROPOSALS

THEMSELVES VIOLATED PROVISIONS OF THE ACT.

THE DOCUMENT THEREAFTER ADDRESSED ONLY MATTERS RELATING TO THE
SUBJECT OF PERFORMANCE APPRAISAL. THE AUTHORITY NOTED THAT THE DOCUMENT
FILED BY THE UNION APPEARED TO BE INTENDED AS A PETITION FOR REVIEW OF
NEGOTIABILITY ISSUES BUT WAS NOT IN CONFORMANCE WITH AUTHORITY'S RULES
AT 5 CFR 2424.4(A), /1/ WHICH PRESCRIBE THE CONTENTS OF SUCH A PETITION
FOR REVIEW. THEREFORE, IN ACCORDANCE WITH ITS USUAL PRACTICE, THE
AUTHORITY GRANTED ADDITIONAL TIME TO THE UNION IN WHICH TO FILE
NECESSARY MATERIALS REQUIRED TO COMPLETE THE APPEAL INITIATED BY THE
DEFICIENT PETITION. THE UNION SUBSEQUENTLY FILED ON FEBRUARY 26, 1980,
ADDITIONAL DOCUMENTS SETTING FORTH THE TEXT OF 8 PROPOSALS CONCERNING
PERFORMANCE APPRAISAL TOGETHER WITH THE TEXT OF 27 ADDITIONAL PROPOSALS
WHOLLY UNRELATED TO PERFORMANCE APPRAISAL MATTERS, AND A COPY OF THE
AGENCY'S ALLEGATIONS CONCERNING EACH PROPOSAL. IN ITS STATEMENT OF
POSITION BEFORE THE AUTHORITY, THE AGENCY TOOK THE POSITION,
ESSENTIALLY, THAT THE INITIAL DOCUMENT FILED BY THE UNION WITHIN THE 15
DAY PERIOD FOLLOWING THE AGENCY'S ALLEGATION DID NOT CONSTITUTE A
"PETITION FOR REVIEW" WITHIN THE MEANING OF THE STATUTE AND THE
AUTHORITY'S RULES AND COULD NOT BE CURED OR COMPLETED AFTER THE
EXPIRATION OF THE TIME LIMITS FOR THE FILING OF SUCH PETITIONS.
THEREFORE, THE AGENCY MOVED TO DISMISS THE UNION'S PETITION FOR REVIEW
AS BEING UNTIMELY FILED. THE AGENCY'S MOTION MUST BE GRANTED IN PART
AND DENIED IN PART.

UNDER THE PROVISIONS OF 5 U.S.C. 7117(C)(2), /2/ AN EXCLUSIVE
REPRESENTATIVE MAY, ON OR BEFORE THE FIFTEENTH DAY AFTER THE DATE ON
WHICH AN AGENCY ALLEGES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT
EXTEND TO ANY MATTER, INSTITUTE AN APPEAL BY FILING A PETITION WITH THE
AUTHORITY AND FURNISHING A COPY THEREOF TO THE HEAD OF THE AGENCY.
THUS, UNDER THE FOREGOING PROVISION OF THE STATUTE AND SECTION 2424.3 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.3), /3/ A PETITION AS
TO A PARTICULAR NEGOTIABILITY ISSUE WOULD BE TIMELY IF FILED ON OR
BEFORE THE FIFTEENTH DAY FROM THE DATE ON WHICH THE AGENCY ALLEGES THAT
THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO THE ISSUE
IDENTIFIED IN THE PETITION.

THE AUTHORITY'S RULES AT 5 CFR 2424.4(A) PRESCRIBE THE CONTENT OF
PETITIONS FOR REVIEW OF NEGOTIABILITY ISSUES. THE AUTHORITY MAY, IN ITS
DISCRETION, PERMIT A UNION TO CORRECT A TIMELY FILED PETITION WHICH IS
DEFICIENT WITH RESPECT TO SECTION 2424.4(A) OF THE AUTHORITY'S RULES.
SEE 5 CFR 2429.16. HOWEVER, A GRANT OF PERMISSION TO CORRECT A
DEFICIENT PETITION FOR REVIEW TIMELY INVOKING THE AUTHORITY'S
JURISDICTION AS TO CERTAIN NEGOTIABILITY ISSUES DOES NOT AUTHORIZE THE
UNION, AFTER THE STATUTORY TIME LIMIT PRESCRIBED AT 5 U.S.C. 7117(C)(2)
HAS EXPIRED, TO AMEND THE PETITION IN AN ATTEMPT TO FURTHER INVOKE THE
AUTHORITY'S JURISDICTION AS TO WHOLLY UNRELATED MATTERS. AS TO THESE
NEW MATTERS, THE UNION'S APPEAL WOULD BE CLEARLY UNTIMELY.

AS STATED PREVIOUSLY, THE ONLY STATED MATTERS IN DISPUTE SET FORTH IN
THE DOCUMENT INITIALLY FILED CONCERNED PERFORMANCE APPRAISAL. THUS,
BASED UPON THE FOREGOING, TO THE EXTENT THAT THE UNION'S PURPORTED
PETITION FOR REVIEW DATED FEBRUARY 5, 1980 IDENTIFIED PERFORMANCE
APPRAISAL AS THE ISSUE IN DISPUTE, DEFICIENCIES THEREIN COULD BE
REMEDIED BY THE FILING OF COMPLYING MATERIALS WITHIN THE TIME ALLOWED BY
THE AUTHORITY. HAVING INITIALLY LIMITED THE ISSUES IN DISPUTE, HOWEVER,
THE UNION COULD NOT THEREAFTER FILE AN APPEAL CONCERNING PROPOSALS
WHOLLY UNRELATED TO PERFORMANCE APPRAISAL ISSUES SINCE THE TIME LIMIT AT
5 U.S.C. 7117(C)(2) AND 5 CFR 2424.3 HAD EXPIRED.

ACCORDINGLY, IT IS ORDERED THAT THE AGENCY'S MOTION TO DISMISS SHALL
BE DENIED WITH RESPECT TO THE UNION'S PROPOSALS REGARDING PERFORMANCE
APPRAISAL (I.E., UNION PROPOSED ARTICLE VI, SECTION 1-6, 8-9) AND SHALL
BE GRANTED WITH RESPECT TO THE REMAINING PROPOSALS CONTAINED IN THE
UNION'S ADDITIONAL STATEMENT OF FEBRUARY 26, 1980.

ISSUED, WASHINGTON, D.C., APRIL 30, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 5 CFR 2424.4(A) PROVIDES AS FOLLOWS:

SECTION 2424.4 CONTENT OF PETITION; SERVICE.

(A) A PETITION FOR REVIEW SHALL BE DATED AND SHALL CONTAIN THE
FOLLOWING:

(1) A STATEMENT SETTING FORTH THE MATTER PROPOSED TO BE NEGOTIATED AS
SUBMITTED TO THE

AGENCY;

(2) A COPY OF ALL PERTINENT MATERIAL, INCLUDING THE AGENCY'S
ALLEGATION IN WRITING THAT THE

MATTER, AS PROPOSED, IS NOT WITHIN THE DUTY TO BARGAIN IN GOOD FAITH,
AND OTHER RELEVANT

DOCUMENTARY MATERIAL; AND

(3) NOTIFICATION BY THE PETITIONING LABOR ORGANIZATION WHETHER THE
NEGOTIABILITY ISSUE IS

ALSO INVOLVED IN AN UNFAIR LABOR PRACTICE CHARGE FILED BY SUCH LABOR
ORGANIZATION UNDER PART

2423 OF THIS SUBCHAPTER AND PENDING BEFORE THE GENERAL COUNSEL.

/2/ 5 U.S.C. 7117(C)(2) PROVIDES AS FOLLOWS:

SECTION 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY
TO CONSULT

(C)(2) THE EXCLUSIVE REPRESENTATIVE MAY, ON OR BEFORE THE 15TH DAY
AFTER THE DATE ON WHICH

THE AGENCY FIRST MAKES THE ALLEGATION REFERRED TO IN PARAGRAPH (1) OF
THIS SUBSECTION,

INSTITUTE AN APPEAL UNDER THIS SUBSECTION BY --

(A) FILING A PETITION WITH THE AUTHORITY; AND

(B) FURNISHING A COPY OF THE PETITION TO THE HEAD OF THE AGENCY.

/3/ 5 CFR 2424.3 PROVIDES AS FOLLOWS:

SECTION 2424.3 TIME LIMITS FOR FILING.

THE TIME LIMIT FOR FILING A PETITION FOR REVIEW IS FIFTEEN (15) DAYS
AFTER THE DATE THE AGENCY'S ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND TO THE MATTER PROPOSED TO BE BARGAINED IS SERVED
ON THE EXCLUSIVE REPRESENTATIVE. THE EXCLUSIVE REPRESENTATIVE SHALL
REQUEST SUCH ALLEGATION IN WRITING AND THE AGENCY SHALL MAKE THE
ALLEGATION IN WRITING AND SERVE A COPY ON THE EXCLUSIVE REPRESENTATIVE:
PROVIDED, HOWEVER, THAT REVIEW OF A NEGOTIABILITY ISSUE MAY BE REQUESTED
BY AN EXCLUSIVE REPRESENTATIVE UNDER THIS SUB-PART WITHOUT A PRIOR
WRITTEN ALLEGATION BY THE AGENCY IF THE AGENCY HAS NOT SERVED SUCH
ALLEGATION UPON THE EXCLUSIVE REPRESENTATIVE WITHIN TEN (10) DAYS AFTER
THE DATE OF THE RECEIPT BY ANY AGENCY BARGAINING REPRESENTATIVE AT THE
NEGOTIATIONS OF A WRITTEN REQUEST FOR SUCH ALLEGATION.