10:0198(39)NG - IBEW Local 121 and Treasury, Bureau of Engraving and Printing, Washington, DC -- 1982 FLRAdec NG

 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.