U.S. Federal Labor Relations Authority

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21:0044(9)NG - AFGE, National GSA Council and GSA -- 1986 FLRAdec NG

[ v21 p44 ]
The decision of the Authority follows:

 21 FLRA No. 9
                                            Case No. 0-NG-1202
    This case 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 must be dismissed on that basis.
    From the record before the Authority, it appears that on June 17,
 1985, the parties began bargaining over a new collective bargaining
 agreement.  During the course of these negotiations, a dispute arose
 concerning the negotiability of a Union proposal U-3 concerning employee
 performance ratings.  On June 25, 1985, the parties entered into a
 Memorandum of Understanding, which provided in pertinent part that, "The
 Union has presented a proposal contained in Article 9 Performance
 Appraisal Systems (union proposal U-3), dated 6-21-85, which Management
 intends to declare nonnegotiable.  The exact proposal is section 5E."
 That agreement provided further that "The Union has indicated that it
 intends to file an appeal of the agency's declaration of
 nonnegotiability." Article 9, Section 5E provided as follows:
          E. An employee who believes he/she is performing at the level
       he/she was last rated in a previous annual rating, and was not
       notified during an earlier conference that the performance had
       fallen below that rating, the employee may not be rated lower on
       an element which was rated higher.
    On September 1, 1985, the parties executed a national agreement.
    On October 3, 1985, the Union made a written request for an
 allegation of nonnegotiability on what it characterizes as a "carryover"
 proposal from the previous agreement.  The proposal read as follows:
       A performance rating for an employee may not contain any lower
       rating on any element which was rated higher on the previous
       annual rating if the employee was not notified during an earlier
       conference that the employee' s performance was not consistent
       with the higher rating.
    By memorandum dated October 21, 1985, the Agency responded that the
 Union's October 3, 1985, request was untimely because the proposal
 presented was the subject of a Memorandum of Understanding executed on
 June 25, 1985.  The Union then filed the instant negotiability appeal on
 October 28, 1985, or within 15 days from the date of service of the
 Agency's letter of October 21, 1985.
    In this case, the parties' Memorandum of Understanding of June 25,
 1985, amounts to a written request by the Union for an allegation and a
 simultaneous written response by the Agency alleging the matter proposed
 to be nonnegotiable.  /1/ It is well settled that a petition for review
 must be filed within 15 days from the date of service on the Union of an
 Agency nonnegotiability allegation.  See, e.g. National Treasury
 Employees Union, Chapter 226 and U.S. Department of Agriculture, Food
 and Drug Nutrition Service, 15 FLRA 97 (1984).  Although the Union
 contends that its letter of October 3, 1985, constituted a different
 request for a negotiability determination on a "modified" U-3 proposal
 which was presented during subsequent negotiations, such contention can
 not be sustained.  The record clearly indicates that the proposal set
 forth in the October 3, 1985, request is merely a restatement of the
 original proposal which the Agency had declared nonnegotiable in the
 June 25, 1985, Memorandum of Understanding.  The restatement effected no
 changes in the substance or language of the proposal.  Thus, while the
 Union's petition filed with the Authority on October 28, 1985, was filed
 within 15 days from the date of service of the Agency letter of October
 21, 1985, that letter was, in essence, only a restatement of the earlier
 allegation.  It is therefore clear that the Union's petition in this
 case seeks review of the Agency' s allegation of June 25, 1985.  Thus,
 under section 7117(c) of the Statute and section 2424.3 of the
 Authority' s Rules and Regulations, the petition for review had to be
 filed, that is, received in the national office of the Authority, no
 later than the close of business on July 10, 1985.  However, the
 petition for review was not filed until October 28, 1985, and thus was
    Accordingly as the Union's petition for review was untimely filed and
 apart from the considerations, it is hereby dismissed.  /2/
    For the Authority.
    Issued, Washington, D.C., February 24, 1986.
                                       Harold D. Kessler
                                       Director of Case Management
 --------------- FOOTNOTES$ ---------------
    /1/ See American Federation of Government Employees, AFL-CIO,
 National GSA Council and General Services Administration, 20 FLRA No. 50
    /2/ In view of the disposition of the subject negotiability appeal,
 it is unnecessary for the Authority to rule on the Agency's motion to