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

 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.