AFGE Local 1858 and Army Missile Command, Redstone Arsenal (Authority decision, November 19, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. 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

AFGE Local 1858 appealed the Army Missile Command’s statement that three performance-appraisal proposals conflicted with Army-wide rules. The Authority held that even an unrequested written allegation of nonnegotiability could be appealed, but the union still had to meet the 15-day deadline. The allegation was served around September 22, 1981, making October 7 the deadline; the petition arrived October 19. It dismissed the petition without prejudice and did not decide the proposals’ negotiability.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c)(2).
• Outcome: Petition dismissed without prejudice as untimely.
• Key point: An unrequested written allegation may be appealed, but its service starts the filing clock.

Full text (FLRA public release)

[ v10 p499 ]

10:0499(85)NG

The decision of the Authority follows:

10 FLRA No. 85

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858
(Union)

and

DEPARTMENT OF THE ARMY,
U.S. ARMY MISSILE COMMAND,
REDSTONE ARSENAL, ALABAMA
(Activity)

Case No. O-NG-583

ORDER DISMISSING PETITION FOR REVIEW

THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(D) 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 REASON INDICATED BELOW, IT HAS BEEN DETERMINED THAT
THE PETITION WAS UNTIMELY FILED AND THEREFORE MUST BE DISMISSED.

FROM THE SUBMISSIONS OF THE PARTIES IN THE RECORD BEFORE THE
AUTHORITY, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS CONCERNING
IMPLEMENTATION OF THE AGENCY'S PERFORMANCE APPRAISAL SYSTEM A DISPUTE
AROSE WITH RESPECT TO FIVE OF THE UNION'S PROPOSALS. AFTER EFFORTS OF
THE FEDERAL MEDIATION AND CONCILIATION SERVICE PROVED UNSUCCESSFUL IN
RESOLVING THE DISPUTE, A REQUEST FOR ASSISTANCE WAS FILED WITH THE
FEDERAL SERVICE IMPASSES PANEL. WHILE THE MATTER WAS PENDING BEFORE THE
PANEL, THE ACTIVITY NOTIFIED THE UNION BY LETTER OF SEPTEMBER 22, 1981,
THAT IT INTENDED TO IMPLEMENT A MODIFIED PERFORMANCE APPRAISAL SYSTEM.
IN ITS LETTER, THE ACTIVITY ALSO STATED THAT "(T)WO ISSUES HAVE BEEN
DECLARED AT IMPASSE BY THE FEDERAL MEDIATOR AND MANAGEMENT HAS DECLARED
THREE ISSUES NONNEGOTIABLE DUE TO CONFLICT WITH ARMY-WIDE REGULATIONS."
THE PANEL SUBSEQUENTLY DECLINED TO ASSERT JURISDICTION OVER THE MATTER
IN VIEW OF THE NEGOTIABILITY QUESTIONS RAISED BY THE ACTIVITY. ON
OCTOBER 19, 1981, THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH
THE AUTHORITY.

IN ITS STATEMENT OF POSITION, THE ACTIVITY IN EFFECT ARGUES THAT
SINCE NO ALLEGATION WAS REQUESTED BY THE UNION, AN "ALLEGATION" WITHIN
THE MEANING OF SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS
WAS NEVER RENDERED BY THE ACTIVITY AND, THEREFORE, THE CASE IS NOT
PROPERLY BEFORE THE AUTHORITY.

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 . . . .

THE AUTHORITY RECENTLY CONSIDERED AND DECIDED THE QUESTION OF WHETHER
AN UNREQUESTED WRITTEN CONTENTION BY AN AGENCY THAT A UNION PROPOSAL WAS
NONNEGOTIABLE COULD CONSTITUTE AN "ALLEGATION" OF NONNEGOTIABILITY FOR
THE PURPOSE OF FILING A PETITION FOR REVIEW PURSUANT TO SECTION 2424.3.
IN INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 121
AND DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND PRINTING, 10
FLRA NO. 39(1982), WHERE THE AGENCY'S UNREQUESTED CONTENTION WAS MADE IN
A PRE-HEARING BRIEF IN THE CONTEXT OF A PANEL PROCEEDING AND SERVED UPON
THE UNION, THE AUTHORITY HELD THAT SUCH A WRITTEN STATEMENT COULD
CONSTITUTE AN "ALLEGATION" FOR THE PURPOSE OF APPEAL TO THE AUTHORITY.
THE AUTHORITY STATED:

. . . (I)T IS WELL ESTABLISHED THAT THE IMPASSE RESOLUTION PROCEDURES
OF THE PANEL OPERATE

AS ONE ASPECT OF THE COLLECTIVE BARGAINING PROCESS. THUS, THE AGENCY
AND THE UNION HEREIN

WERE INVOLVED IN THE COLLECTIVE BARGAINING PROCESS WHEN THE AGENCY
SUBMITTED ITS ALLEGATION OF

NONNEGOTIABILITY, I.E., ITS PREHEARING BRIEF TO THE PANEL IN WHICH IT
CONTENDED THAT UNION'S

PROPOSAL WAS NONNEGOTIABLE. ACCORDINGLY, A NEGOTIABILITY DISPUTE HAS
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.
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.
(FOOTNOTES OMITTED.)

THE UNION IN THIS CASE DID NOT REQUEST ANOTHER ALLEGATION FROM THE
ACTIVITY BUT, RATHER, PETITIONED THE AUTHORITY FOR REVIEW OF THE
UNREQUESTED ALLEGATION OF NONNEGOTIABILITY SET FORTH IN THE ACTIVITY'S
LETTER OF SEPTEMBER 22, 1981. FOR THE REASONS SET FORTH IN THE BUREAU
OF ENGRAVING AND PRINTING, THE UNION COULD PROPERLY FILE A PETITION FOR
REVIEW.

THE QUESTION REMAINS, HOWEVER, AS TO WHETHER THE UNION'S PETITION WAS
TIMELY FILED. THE ACTIVITY'S ALLEGATION OF SEPTEMBER 22, 1981, WAS
SERVED IN PERSON UPON THE UNION ON OR ABOUT THE SAME DATE. THEREFORE,
UNDER SECTION 2424.3 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 OCTOBER 7, 1981, IN ORDER TO BE CONSIDERED
TIMELY. SINCE THE UNION'S PETITION FOR REVIEW WAS NOT FILED UNTIL
OCTOBER 19, 1981, IT IS CLEARLY UNTIMELY AND MUST BE DISMISSED ON THAT
BASIS.

ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW IN
THIS CASE BE, AND IT HEREBY IS, DISMISSED. /1/

ISSUED, WASHINGTON, D.C., NOVEMBER 19, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

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

/1/ THIS DISMISSAL IS WITHOUT PREJUDICE. THAT IS, IF THE MATTERS
PROPOSED TO BE NEGOTIATED CONTINUE 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.