[ v21 p44 ]
The decision of the Authority follows:
21 FLRA No. 9 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL GSA COUNCIL Union and GENERAL SERVICES ADMINISTRATION Agency Case No. 0-NG-1202 ORDER DISMISSING PETITION FOR REVIEW 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 untimely. 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. (s)--- 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 (1985). /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 dismiss.