Production, Maintenance and Public Employees Union Local 1276 and Defense Depot Tracy (Authority decision, August 12, 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

The union appealed a Defense Depot Tracy allegation that its proposal was nonnegotiable. Because the allegation was made in response to a Federal Service Impasses Panel request and the union appealed it after the filing deadline, the Authority dismissed the petition as untimely. The dismissal was without prejudice to requesting a new written allegation and filing a timely appeal.

Decision snapshot

• Authority: 5 C.F.R. § 2424.3.
• Outcome: Petition dismissed as untimely without prejudice.
• Key point: An appeal from an unrequested allegation still had to meet the filing deadline.

Full text (FLRA public release)

[ v09 p919 ]

09:0919(127)NG

The decision of the Authority follows:

9 FLRA No. 127

PRODUCTION, MAINTENANCE, AND PUBLIC
EMPLOYEES UNION, LOCAL NO. 1276,
AFFILIATED WITH LIUNA, ALF-CIO
(Union)

and

DEFENSE LOGISTICS AGENCY,
DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA
(Agency)

Case No. O-NG-625

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 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.

FOR THE SUBMISSIONS OF THE PARTIES IN THE RECORD BEFORE THE
AUTHORITY, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS CONCERNING
CERTAIN ASPECTS OF THE AGENCY'S UPWARD MOBILITY PROGRAM A DISPUTE AROSE
WITH RESPECT TO A NUMBER OF THE UNION'S PROPOSALS. AFTER EFFORTS OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE PROVED UNSUCCESSFUL IN
RESOLVING THE DISPUTE, THE UNION FILED A REQUEST FOR ASSISTANCE WITH THE
FEDERAL SERVICE IMPASSES PANEL. IN RESPONSE TO A REQUEST FROM THE PANEL
FOR A WRITTEN STATEMENT OF POSITION REGARDING THE DISPUTED PROPOSALS,
THE AGENCY, BY LETTER OF NOVEMBER 4, 1981, NOTIFIED THE PANEL THAT IT
CONSIDERED THE PROPOSALS TO BE NONNEGOTIABLE. IN A SEPARATE LETTER TO
THE UNION ON THE SAME DATE, THE AGENCY NOTIFIED THE UNION THAT IT HAD
DETERMINED THAT THE UNION'S PROPOSALS WERE NONNEGOTIABLE AND ALSO SERVED
A COPY OF ITS DETAILED STATEMENT TO THE PANEL ON THE UNION. THE PANEL
SUBSEQUENTLY DECLINED TO ASSERT JURISDICTION OVER THE MATTER IN VIEW OF
THE NEGOTIABILITY QUESTION RAISED BY THE AGENCY. ON DECEMBER 22, 1981,
THE UNION FILED THE INSTANT PETITION FOR REVIEW OF THE NEGOTIABILITY
ISSUES WITH 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 . . . .

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: . . . .

IN A CASE SUCH AS HERE INVOLVED, WHERE A UNION IS SERVED WITH AN
ALLEGATION OF NONNEGOTIABILITY WHICH THE UNION HAD NOT REQUESTED IN
WRITING FROM THE AGENCY, THE UNION HAS A NUMBER OF POSSIBLE COURSES OF
ACTION. THUS, A UNION SERVED WITH AN UNREQUESTED ALLEGATION MAY, FOR
EXAMPLE, (1) CHOOSE TO FURTHER ATTEMPT TO REACH AGREEMENT WITH THE
AGENCY ON THE MATTER IN DISPUTE; OR, (2) AS PROVIDED UNDER SECTION
2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS, EXERCISE ITS RIGHT TO
SUBMIT A WRITTEN REQUEST TO THE AGENCY FOR ANOTHER ALLEGATION AND TO
FILE A PETITION FOR REVIEW OF THE NEGOTIABILITY ISSUES WITH THE
AUTHORITY IN ACCORDANCE WITH SECTION 2424.3 WHEN THE AGENCY SUBSEQUENTLY
RESPONDS (OR FAILS TO RESPOND) TO THE WRITTEN REQUEST; OR, (3) AS THE
UNION HERE CHOSE TO DO, FILE AN APPEAL FROM THE UNREQUESTED ALLEGATION.
HOWEVER, IF THE UNION DECIDES TO FOLLOW THE LATTER COURSE OF ACTION, IT
MUST FILE ITS APPEAL WITHIN THE TIME LIMIT PRESCRIBED IN THE STATUTE AND
THE AUTHORITY'S RULES AND REGULATIONS.

IN THIS CASE, AS INDICATED ABOVE, THE AGENCY'S ALLEGATION OF
NONNEGOTIABILITY WAS NOT REQUESTED BY THE UNION, BUT RATHER, WAS
RENDERED IN RESPONSE TO A PANEL REQUEST. THE ALLEGATION WAS DATED
NOVEMBER 4, 1981, AND APPEARS TO HAVE BEEN SERVED ON THE UNION BY MAIL
ON THE SAME DATE. 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
NOVEMBER 24, 1981, IN ORDER TO BE CONSIDERED TIMELY. SINCE THE UNION'S
INSTANT APPEAL WAS NOT FILED UNTIL DECEMBER 22, 1981, 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. IN VIEW OF THE FACT THAT THE
UNION APPEALED FROM AN UNREQUESTED ALLEGATION, THE DISMISSAL OF THE
PETITION 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.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., AUGUST 12, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR