48:0919(99)NG - - NTEU and Commerce, Patent and Trademark Office, Arlington, Virginia - - 1993 FLRAdec NG - - v48 p919



[ v48 p919 ]
48:0919(99)NG
The decision of the Authority follows:


48 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

ARLINGTON, VIRGINIA

(Agency)

0-NG-2139

_____

ORDER DISMISSING PETITION FOR REVIEW

November 24, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 25 proposals.(1) The Agency filed a statement of position and the Union filed a response.(2) For the following reasons, we find that the Union's petition for review was untimely filed and, therefore, must be dismissed.

II. Background

Between March 1992 and February 1993, the Agency and the Union engaged in bargaining for a new master collective bargaining agreement (CBA). On February 12, 1993, the parties signed the CBA, subject to ratification by the Union members and to approval by the Agency head. By agreement of the parties, an appendix was attached to the CBA, listing the proposals that the Agency had determined were nonnegotiable.(3) Subsequently, the CBA was ratified by the Union members, and was approved by the Agency head on March 12, 1993.

By letter dated March 15, 1993, the Union requested that the Agency provide the Union with a written allegation of nonnegotiability as to the proposals listed in the appendix to the CBA. The Union also requested that the Agency state whether it considered certain revised proposals to be nonnegotiable. By letter dated March 26, 1993, the Agency refused to provide the written allegation requested by the Union, stating that the Agency had already made such an allegation in the appendix to the CBA. The Agency also refused to state its position as to the negotiability of the revised proposals because it believed that it did not have a duty to bargain on those proposals. The Union filed its petition for review on April 8, 1993.

III. Positions of the Parties (4)

A. Agency

The Agency contends that the Union's petition for review is untimely because the petition was not filed within 15 days of the date on which the Agency provided the Union with a written allegation of nonnegotiability. According to the Agency, section 7117(c)(2) of the Statute "requires the Union's fifteen[-]day appeal period to begin" on the date on which an agency makes an allegation of nonnegotiability. Agency's Statement of Position at 3. The Agency asserts that "[n]othing in the Statute contemplates, let alone permits, the Union to make repeated oral requests for a written declaration of nonnegotiability, but avoid the appeal period until making its own written request." Id. at 3-4.

The Agency contends that its written allegation of nonnegotiability "was provided to the Union no later than February 12, 1993" and "[a]ccordingly, the Union's [p]etition for [r]eview, filed on April 8, 1993, is untimely." Id. at 2-3 (footnotes omitted). In this regard, the Agency notes that, as set forth in its March 26, 1993, letter to the Union, during negotiations "the Union requested the Agency to provide a written declaration of all proposals which it had declared non-negotiable, and further requested the Agency to include those proposals, noted as having been declared non-negotiable, into the final signed version of the contract." Id., Exhibit A at 1. The Agency argues that because "a written declaration of all proposals which the Agency considered to be non-negotiable was included in the final version of the [CBA], which was provided to [the Union] and signed by the parties on February 12, 1993," the Agency thus made a written allegation as contemplated by section 2424.3 of the Authority's Regulations. Id. (footnote omitted).

B. Union

The Union contends that its petition for review was timely filed. The Union argues that section 2424.3 of the Authority's Regulations clearly requires that, while the 15-day period for filing a petition begins on the date of an agency's written allegation of nonnegotiability, that period starts to run only following an allegation that is made in response to a written request from a union.

The Union states that in this case, contrary to the Agency's claim, the Union did not request an allegation of nonnegotiability, either orally or in writing, prior to its letter of March 15, 1993. The Union argues that, even assuming that an oral request was made prior to March 15, 1993, section 2424.3 of the Authority's Regulations requires that a union's request for an allegation of nonnegotiability be in writing. According to the Union, "[t]he Authority has repeatedly held that verbal [sic] requests . . . do not trigger the time limits for submitting a petition for review." Response at 3. The Union asserts that, in this case, the first and only request for an allegation of nonnegotiability made in writing by the Union was contained in the Union's letter of March 15, 1993, and that the Agency's written response to that request, in its letter of March 26, 1993, was a refusal to make an allegation of nonnegotiability. The Union claims, therefore, that because the Agency refused to make a written allegation in response to the Union's written request, the Union was entitled under section 2424.3 of the Authority's Regulations to file its petition for review.

The Union disputes the Agency's characterization of the parties' signing of the CBA on February 12, 1993, as constituting "the 'formal' signing" of the CBA. Id. The Union argues that the parties understood that the signing of the CBA, which included the portions of the agreement agreed upon by the parties as well as the listing of the proposals deemed nonnegotiable by the Agency, was only for the purpose of completing a document to submit for ratification by the Union members and approval by the Agency head. The Union asserts, therefore, that "[t]he Agency's attempt[] to portray the Union as repeatedly 'orally' requesting declarations of nonnegotiability is unsupported by the facts in this case." Id. at 5. The Union argues that this case is similar to American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37 (1988) (FCI, Petersburg), in which, after the parties signed a document showing areas of agreement and disagreement, the union made a written request for an allegation of nonnegotiability and the Authority held that the union's petition for review was timely.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Union's petition for review is untimely filed and we will dismiss the petition.

A. The First Paragraph of the Appendix to the CBA Constituted a Written Request by the Union for an Allegation of Nonnegotiability and a Written Response by the Agency

Under section 7117(c)(2) of the Statute, an exclusive representative may file a petition with the Authority "on or before the 15th day after the date on which the agency first makes an allegation" that a matter proposed to be bargained is outside the duty to bargain. Section 2424.3 of the Authority's Regulations provides that a union must file a petition for review of an allegation of nonnegotiability within 15 days of service of the agency's written allegation in response to a written request from the union for such an allegation. The time limit for filing a petition for review of an allegation of nonnegotiability may not be extended or waived by the Authority. See American Federation of Government Employees, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 45 FLRA 391, 407 (1992).

The Authority has found that a written agreement between an agency and a union in which the parties acknowledge that the agency considered a proposal to be nonnegotiable, and the union indicates its intent to file a petition for review as to the proposal, constitutes a written request for an allegation of nonnegotiability and a written response to the request under section 2424.3 of our Regulations. See, for example, American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Medical Center, Richmond, Virginia, 44 FLRA 1055, 1060-61 (1992) (Medical Center, Richmond); and American Federation of Government Employees, AFL-CIO, Local 3790 and The Department of Interior, Bureau of Land Management, 7 FLRA 393 (1981) (Bureau of Land Management). Where the parties have made such an agreement, we have held that the petition for review must be filed within 15 days from the date of the agreement. Medical Center, Richmond; and Bureau of Land Management.

In this case, the CBA signed by the parties included an appendix listing the proposals that the Agency had determined were nonnegotiable and indicating that the Union contemplated an appeal of those proposals. In particular, the first paragraph of the appendix to the CBA, entitled "NON-NEGOTIABLE ITEMS," states:

The Patent and Trademark Office has determined these provisions to be non-negotiable. After the Union appeal, if the provisions are determined to be negotiable, then the parties will go back to the table to negotiate over the provisions.

Agency's Statement of Position, Exhibit B at 1.

We find that the first paragraph of the appendix to the CBA constitutes an acknowledgement by the parties that the Agency considered the proposals listed in the appendix to be nonnegotiable. The paragraph also demonstrates the Union's intent to appeal the proposals because it provides that the parties agree to return to the table after the Union appeals. Accordingly, consistent with Medical Center, Richmond and Bureau of Land Management, we conclude that the appendix constitutes a written request by the Union for an allegation of nonnegotiability and a simultaneous written response by the Agency alleging that the proposals listed in the appendix are nonnegotiable. See also American Federation of Government Employees, AFL-CIO, National GSA Council and General Services Administration, 21 FLRA 44 (1986); and American Federation of Government Employees, AFL-CIO, National GSA Council and General Services Administration, 20 FLRA 448 (1985). Consequently, we find that the first paragraph of the appendix to the parties' CBA satisfies the requirements of section 2424.3 of the Authority's Regulations for a written request by the Union for an allegation of nonnegotiability and a written allegation of nonnegotiability by the Agency.

We also find that the fact that the paragraph setting forth the Agency's allegation of nonnegotiability and the Union's intent to appeal was part of an appendix to the parties' CBA, whereas Medical Center, Richmond and Bureau of Land Management involved memoranda of understanding (MOUs), does not make this case materially different. In Medical Center, Richmond, the parties' MOU provided that "pending a decision on a negotiability appeal to be filed by the [u]nion," the union agreed to all portions of the parties' negotiated agreement "except for the disputed provisions of its Article 12, Section 4 proposal[.]" 44 FLRA at 1056. In Bureau of Land Management, the MOU provided that "[m]anagement has declared Flexitime as non-negotiable under the [Statute]" and "[t]he [u]nion will request that the FLRA decide the negotiability of this subject." 7 FLRA at 393. Similarly, in the instant case, the document signed by the parties demonstrated clearly that the Agency considered the listed proposals to be nonnegotiable and that the Union intended to appeal the Agency's allegation of nonnegotiability regarding the listed proposals.

We find that FCI, Petersburg is inapposite to this case. In FCI, Petersburg, the union and the agency initialed the proposals that the agency alleged were nonnegotiable. However, the union did not indicate its intent to appeal those proposals. In this case, the appendix to the CBA is an agreement signed by the parties that clearly indicates that the Agency declared the proposals nonnegotiable in contemplation of a Union appeal.

B. The Union's Petition for Review as to the Same Proposals Contained in the Appendix to the CBA Was Untimely Filed

We have determined that the appendix to the parties' CBA constitutes a simultaneous written request by the Union for an allegation of nonnegotiability as to the proposals in the appendix and a written allegation of nonnegotiability as to those proposals by the Agency. Where an agreement constitutes a simultaneous written request for an allegation of nonnegotiability and a written response, we have held that to be timely under section 7117(c)(2) of the Statute a petition for review must be filed within 15 days from the date of the agreement. Medical Center, Richmond; and Bureau of Land Management. In order to determine the timeliness of the petition for review, however, we must first determine if the petition for review concerns the same proposals as those that are contained in the appendix to the CBA. We find that, with the exception of the four proposals discussed separately below--Proposal 10 (Article 38, Section 10(A)); part of Proposal 16 (Article 39, Section 10(C)); Proposal 22 (Article 44, Section 4); and Proposal 25 (Article 58, Section 2)--all of the proposals submitted in the petition for review (excluding proposals later withdrawn by the Union) are the same as the articles, sections, and subsections declared nonnegotiable by the Agency in the appendix to the CBA.

As to the timeliness of the petition for review concerning the proposals that are the same as the proposals declared nonnegotiable by the Agency in the appendix to the parties' CBA, we find that the 15-day filing period under section 2424.3 of the Authority's Regulations began on February 12, 1993, the day the parties signed the CBA, including the appendix. Therefore, under sections 2424.3, 2429.2, and 2429.3 of the Authority's Regulations, the petition for review as to those proposals had to be filed by March 5, 1993. The petition for review was filed on April 8, 1993. Accordingly, as to those proposals, the petition for review was untimely filed under the Authority's Rules and Regulations. See Medical Center, Richmond; and Bureau of Land Management.

Moreover, we note that on March 12, 1993, following the signing of the CBA and ratification of the CBA by the Union membership, the Agency head approved the CBA. Even assuming that the 15-day filing period did not begin until the date the CBA was approved by the Agency head, the petition would still be untimely. Using the March 12, 1993 date to compute timeliness, the petition for review would have to have been filed by April 5, 1993. As noted above, the petition for review was not filed until April 8, 1993.

Accordingly, we find that the petition for review as to the proposals that are the same as those declared nonnegotiable by the Agency in the appendix to the CBA was untimely filed under the Authority's Rules and Regulations.(5)

C. The Union's Petition for Review as to Revised Proposals Was Also Untimely Filed

Four of the proposals included in the Union's petition for review--Proposal 10 (Article 38, Section 10(A)), part of Proposal 16 (Article 39, Section 10(C)), Proposal 22 (Article 44, Section 4), and Proposal 25 (Article 58, Section 2)--contain wording which differs from the wording in Article 38, Section 10(A), Article 39, Section 10(C), Article 44, Section 4, and Article 58,(6) Section 2 as set forth in the appendix to the CBA.(7)

For the following reasons, we find that the wording of the four proposals, as revised, is substantially similar to the wording of the original proposals contained in the appendix to the CBA. As to Proposal 10 (Article 38, Section 10(A)), the proposal contained in the appendix to the CBA provided that certain bargaining unit employees eligible for selection to unit vacancies would be the first candidates referred to the selecting official for consideration. The revised proposal included in the petition for review includes several sentences that, in our view, simply discuss in more detail the proposed requirement for first consideration.

As to Proposal 16 (Article 39, Section 10(C)), the proposal contained in the appendix to the CBA deals with performance plans and standards. The revised proposal included in the petition for review deletes the criterion governing the clarity with which the performance plan must be stated in writing and adds a criterion governing the manner in which performances standards must be expressed.

As to Proposal 22 (Article 44, Section 4), the revised proposal corrects one typographical error and adds a comma to set off a phrase.

As to Proposal 25 (Article 58, Section 2), because of the similarity of wording, particularly with respect to the first sentence, which is the portion in dispute, we find that Article 58, Section 2 contained in the petition for review is substantially the same as Article 58, Section 2 in the appendix to the CBA. Despite the differences in wording between the proposals, the issue as to the negotiability of the proposals is the same. Specifically, the Agency alleged that the proposals are nonnegotiable on the ground that, contrary to the decision of the United States Court of Appeals for the Fourth Circuit in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), the proposals permit union initiated mid-term bargaining.

We have examined the revised proposals included in the petition for review and compared them to the proposals contained in the appendix to the CBA. We find that the modifications of the earlier proposals contained in the revised proposals are not substantial. The Authority has held that "[w]here a later proposal contains only insubstantial modifications of an earlier proposal, 'the appeal of the later proposal constitutes an untimely attempt to seek review of the earlier proposal.'" See Medical Center, Richmond, 44 FLRA at 1063, citing National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 1537, 1540 (1991). Because the petition for review as to these four revised proposals addresses proposals that are substantially the same as the proposals that were contained in the appendix to the CBA, the timeliness of the petition for review as to these four proposals is governed by the date of the CBA. Thus, as we have found above with regard to the other proposals, the Union's petition for review as to these four revised proposals was untimely filed under the Authority's Rules and Regulations.

V. Order

The Union's petition for review is dismissed.

APPENDIX

A. For purposes of identification, we have numbered the proposals in the Union's petition for review as follows:

Proposal 1 - Article 8, Section 3

Proposal 2 - Article 8, Section 7

Proposal 3 - Article 20, Section 24(B)

Proposal 4 - Article 34, Section 9

Proposal 5 - Article 38, Section 3(A)(f) & (i)

Proposal 6 - Article 38, Section 4

Proposal 7 - Article 38, Section 9(A) & (B)

Proposal 8 - Article 38, section 9(C)

Proposal 9 - Article 38, Section 9(E)

Proposal 10 - Article 38, Section 10(A)

Proposal 11 - Article 38, Section 10(B), (C), (D) & (E)

Proposal 12 - Article 38, Section 16

Proposal 13 - Article 38, Section 19

Proposal 14 - Article 39, Section 3

Proposal 15 - Article 39, Section 8(A)

Proposal 16 - Article 39, Section 10(A) & (C)

Proposal 17 - Article 39, Section 11(F)(3)

Proposal 18 - Article 39, Section 11(F)(4), (5) & (7)

Proposal 19 - Article 39, Section 11(F)(8)

Proposal 20 - Article 39, Section 11(F)(10)

Proposal 21 - Article 39, Section 13

Proposal 22 - Article 44, Section 4

Proposal 23 - Article 44, Section 7(C)

Proposal 24 - Article 45, Section 7(C)

Proposal 25 - Article 58, Section 2

B. In its response to the Agency's statement of position, the following proposals, and portions of proposals, were withdrawn from the petition for review by the Union:

Proposal 2 - Article 8, Section 7

Proposal 3 - Article 20, Section 24(B)

Proposal 7 - Article 38, Section 9(B), Subsections (1) & (2) only

Proposal 8 - Article 38, Section 9(C)

Proposal 13 - Article 38, Section 19

Proposal 14 - Article 39, Section 3

Proposal 17 - Article 39, Section 11(F)(3)

Proposal 18 - Article 39, Section 11(F)(4), Sentence 2

Proposal 19 - Article 39, Section 11(F)(8), Sentences 5 & 6 [last 2 sentences]

Proposal 20 - Article 39, Section 11(F)(10)

Proposal 21 - Article 39, Section 13

Proposal 22 - Article 44, Section 4, last sentence

C. The text of Article 38, Section 10(A); Article 39, Section 10(C); Article 44, Section 4; and Article 58, Section 2, as submitted by the Union in its petition for review, is set forth below. The portions underlined are portions that have been added to the text of the proposals set forth in the appendix to the parties' CBA. The portions bracketed are portions that have been deleted from the text of the proposals set forth in the appendix to the parties' CBA.

Article 38, Section 10 - Referral and Selection:

A. When all eligible candidates have been evaluated and ranked in accordance with §9 above, the eight PTO bargaining unit candidates with the highest scores will be referred to the selecting official to be considered for appointment. The Office agrees to grant first consideration to bargaining unit employees when filling bargaining unit positions. To assure first consideration for bargaining unit employees, the Office shall rate and consider applications for any unit position before the selecting official for a position may consider applicants from other sources. This does not preclude the Office from soliciting applicants from other sources. However, no applicant from another source may be considered until after the Office has considered employee applicants under this subsection.

Article 39, Section 10(C):

C. Performance plans must be [clearly stated] in writing and given to the employee within 30 calendar days of the beginning of the appraisal period. Standards will be established in such a way that performance can be accurately evaluated and shall define performance in terms of results (what is to be accomplished) and process (how it is to be accomplished). Standards must be expressed to the maximum extent feasible in terms of quality, quantity, timeliness, cost effectiveness or other relevant indices to be specific, observable, and measurable.

Article 44, Section 4:

The parties further agree that discipline shall normally be progressive in nature to correct the conduct of an offending employee, and the Office agrees to follow a course of progressive discipline. [T]Where appropriate, discipline will be preceded by counseling and assistance which will be informal in nature. If recorded, a copy of the discipline shall be provided to the employee for his/her response.

Article 58, Section 2:

During the 30 calendar day period beginning with the 18th month and ending with the 19th month after the effective date of this Agreement, either Party may reopen negotiations on any four (4) existing articles or new articles. [The request must be in writing and shall be accompanied by specific proposals. The Parties shall begin negotiations no later than 60 days after receipt of the notice.] Unless the parties agree otherwise, the following groundrules procedures shall be followed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The proposals that are the subject of the Union's petition for review are identified in paragraph A of the Appendix to this decision.

2. In its response, the Union withdrew its appeal as to several proposals or portions of proposals that are identified in paragraph B of the Appendix to this decision.

3. The appendix to the CBA listed the proposals by specified articles, sections, and subsections. There were approximately 31 proposals listed, including the 25 that are the subject of the Union's petition for review.

4. In view of our disposition of this case, we have set forth the positions of the parties only as to the issue of the timeliness of the petition for review.

5. We note that, in