IBEW Local 121 and Bureau of Engraving and Printing (Authority decision, September 30, 1982)

Final FLRA decision. This is a final Authority order. 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

IBEW Local 121 appealed the Bureau of Engraving and Printing’s claim that a pay-setting proposal was nonnegotiable. The Authority held that the agency’s prehearing brief to the Federal Service Impasses Panel was an allegation of nonnegotiability that started the appeal period. The union filed its petition months after the deadline. The Authority dismissed it without deciding whether the proposal was negotiable.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c)(2).
• Outcome: Petition dismissed as untimely.
• Key point: An agency allegation made during impasse proceedings can start the negotiability appeal clock.

Full text (FLRA public release)

[ v10 p198 ]

10:0198(39)NG

The decision of the Authority follows:

10 FLRA No. 39

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCAL 121
Union

and

DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING AND PRINTING,
WASHINGTON, D.C.
Agency

Case No. O-NG-357

ORDER DISMISSING PETITION FOR REVIEW

THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE 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 THEREFORE MUST BE DISMISSED.

THE RELEVANT FACTS ARE AS FOLLOWS: IN NEGOTIATIONS, THE UNION AND
THE AGENCY REACHED IMPASSE ON SEVERAL ISSUES, INCLUDING THE PAY SETTING
PROCEDURES WHICH ARE AT ISSUE IN THE INSTANT NEGOTIABILITY APPEAL. THE
UNION FILED A REQUEST WITH THE FEDERAL SERVICE IMPASSES PANEL (PANEL) TO
CONSIDER THE PARTIES' NEGOTIATION IMPASSE. THE PANEL ACCEPTED
JURISDICTION AND DIRECTED FACTFINDING. IN THE AGENCY'S PREHEARING
BRIEF, WHICH WAS RECEIVED BY THE PANEL ON JANUARY 16, 1980, IT CONTENDED
THAT THE UNION'S PROPOSAL CONCERNING PAY SETTING WAS NONNEGOTIABLE AND
PRESENTED ISSUES WHICH COULD ONLY BE RESOLVED BY THE AUTHORITY IN A
NEGOTIABILITY DETERMINATION. THEREFORE, THE AGENCY ARGUED THAT THE
PANEL SHOULD DECLINE TO TAKE JURISDICTION. /1/ SUBSEQUENTLY, AFTER A
FACTFINDING HEARING, THE PANEL ISSUED ITS DECISION AND ORDER IN WHICH IT
DECLINED TO ASSERT JURISDICTION OVER THE PAY SETTING ISSUE AND REFERRED
THE PARTIES TO THE AUTHORITY FOR RESOLUTION OF THE NEGOTIABILITY ISSUE.
THEREAFTER, THE UNION FILED THE INSTANT PETITION WITH THE AUTHORITY.

AN INITIAL QUESTION NOT SPECIFICALLY ARGUED BY THE PARTIES IS WHETHER
A NEGOTIABILITY DISPUTE CAN ARISE IN THE CONTEXT OF PANEL PROCEEDINGS TO
RESOLVE A NEGOTIATION IMPASSE; THAT IS, DOES THE AGENCY'S STATEMENT IN
ITS PREHEARING BRIEF TO THE PANEL CONSTITUTE AN "ALLEGATION" OF
NONNEGOTIABILITY FOR THE PURPOSE OF FILING A PETITION FOR REVIEW
PURSUANT TO PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS? THIS
QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE. THE AUTHORITY'S
CONDITIONS GOVERNING REVIEW OF A NEGOTIABILITY ISSUE ARE SET FORTH AT
SECTION 2424.1 OF ITS RULES AND REGULATIONS, WHICH PROVIDES IN RELEVANT
PART:

THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
CONDITIONS PRESCRIBED BY 5

U.S.C. 7117(B) AND (C), NAMELY: IF AN AGENCY INVOLVED IN COLLECTIVE
BARGAINING WITH AN

EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND TO ANY

MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
INCONSISTENT WITH LAW,

RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
ALLEGATION TO THE AUTHORITY

. . . .

IN THIS CONNECTION, IT IS WELL ESTABLISHED THAT THE IMPASSE
RESOLUTION PROCEDURES OF THE PANEL OPERATE AS ONE ASPECT OF THE
COLLECTIVE BARGAINING PROCESS. /2/ THUS, THE AGENCY AND THE UNION
HEREIN WERE INVOLVED IN THE COLLECTIVE BARGAINING PROCESS WHEN THE THE
AGENCY SUBMITTED ITS ALLEGATION OF NONNEGOTIABILITY, I.E., ITS
PREHEARING BRIEF TO THE PANEL IN WHICH IT CONTENDED THE UNION'S PROPOSAL
WAS NONNEGOTIABLE. ACCORDINGLY, A NEGOTIABILITY DISPUTE HAD ARISEN.

UNDER SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS,
DEALING WITH NEGOTIABILITY DISPUTES, A UNION HAS THE RIGHT TO REQUEST IN
WRITING THAT AN AGENCY SERVE IT WITH A WRITTEN ALLEGATION THAT THE
MATTER PROPOSED IS OUTSIDE THE DUTY TO BARGAIN. /3/ HOWEVER, THIS DOES
NOT MEAN THAT A UNION CANNOT PETITION THE AUTHORITY FOR REVIEW OF AN
AGENCY ALLEGATION OF NONNEGOTIABILITY IF IT HAS NOT REQUESTED THE
ALLEGATION. CONSISTENT WITH THE REQUIREMENT OF EXPEDITIOUS PROCESSING
IN SECTION 7117(C)(6) OF THE STATUTE, A UNION COULD CHOOSE NOT TO
EXERCISE ITS RIGHT UNDER THE AUTHORITY'S RULES AND REGULATIONS TO
INITIATE THE FORMAL PROCESS AND CHOOSE INSTEAD TO TIMELY APPEAL FROM AN
UNREQUESTED ALLEGATION RATHER THAN DELAYING THE FILING OF AN APPEAL BY
REQUESTING A RESPONSIVE ALLEGATION. THIS WAS THE OPTION CHOSEN BY THE
UNION HEREIN. /4/

THEREFORE, THE REMAINING QUESTION IS WHETHER THE UNION'S PETITION FOR
REVIEW OF THE AGENCY'S ALLEGATION WAS TIMELY FILED. IN THIS REGARD,
SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS, WHICH
IMPLEMENTS SECTION 7117(C)(2) OF THE STATUTE, PROVIDES, IN PERTINENT
PART:

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 . . . .

ADDITIONALLY, SECTION 2429.22 OF THE RULES AND REGULATIONS PROVIDES,
IN PERTINENT PART:

WHENEVER A PARTY HAS THE RIGHT OR IS REQUIRED TO DO SOME ACT . . .
WITHIN A PRESCRIBED

PERIOD AFTER SERVICE OF A NOTICE OR OTHER PAPER UPON SUCH PARTY, AND
THE NOTICE OR PAPER IS

SERVED ON SUCH PARTY BY MAIL, FIVE (5) DAYS SHALL BE ADDED TO THE
PRESCRIBED PERIOD . . . .

THE ALLEGATION HEREIN WAS RECEIVED BY THE PANEL ON JANUARY 16, 1980,
AND APPEARS TO HAVE BEEN SERVED ON THE UNION EITHER ON THAT DATE OR SOON
THEREAFTER AS THE UNION, BY LETTER DATED JANUARY 18, 1980, URGED THE
PANEL TO RETAIN JURISDICTION OVER THE PROPOSAL DESPITE THE AGENCY'S
HAVING ALLEGED THE PROPOSAL TO BE NONNEGOTIABLE IN ITS PREHEARING BRIEF.
THEREFORE, UNDER SECTIONS 2424.3 AND 2429.22 OF THE AUTHORITY'S RULES
AND REGULATIONS, ANY APPEAL FROM THAT ALLEGATION HAD TO BE FILED WITH
THE AUTHORITY NO LATER THAN THE CLOSE OF BUSINESS ON FEBRUARY 7, 1980 IN
ORDER TO BE CONSIDERED TIMELY. SINCE THE UNION'S APPEAL WAS NOT FILED
UNTIL JULY 28, 1980, IT IS CLEARLY UNTIMELY AND MUST BE DISMISSED.

ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW IN
THIS CASE BE, AND IT HEREBY IS, DISMISSED. /5/

ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ THE PANEL'S POLICY IS TO DECLINE JURISDICTION WHEN A QUESTION AS
TO THE NEGOTIABILITY OF A MATTER IS RAISED DURING THE COURSE OF PANEL
PROCEEDINGS. THE AUTHORITY CURRENTLY HAS PENDING BEFORE IT A REQUEST
FOR THE ISSUANCE OF A GENERAL STATEMENT OF POLICY REGARDING THE PANEL'S
AUTHORITY, ONCE IT HAS ASSERTED JURISDICTION OVER A NEGOTIATION IMPASSE,
TO RESOLVE QUESTIONS CONCERNING WHETHER OR NOT A PROPOSAL IS WITHIN THE
DUTY TO BARGAIN.

/2/ SEE SECTION 7119 OF THE STATUTE AND PARTS 2470 AND 2471 OF THE
PANEL'S RULES AND REGULATIONS.

/3/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385
AND FEDERAL HOME LOAN BANK BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA
NO. 58(1981).

/4/ OF COURSE, A THIRD OPTION WOULD BE FOR THE UNION TO CONTINUE TO
SEEK TO REACH A COMPLETE AGREEMENT AT THE BARGAINING TABLE.

/5/ THIS DISMISSAL IS WITHOUT PREJUDICE. THAT IS, IF THE MATTER
PROPOSED TO BE NEGOTIATED CONTINUES IN DISPUTE BETWEEN THE PARTIES, AN
ALLEGATION MAY BE REQUESTED IN WRITING AND A PETITION FOR REVIEW DULY
FILED BY THE UNION WITH THE AUTHORITY IN ACCORDANCE WITH SECTION 2424.3
OF THE AUTHORITY'S RULES AND REGULATIONS.