44:0733(60)NG - - Washington Area Metal Trades Council and Navy, Naval Research Laboratory, Washington, DC - - 1992 FLRAdec NG - - v44 p733

[ v44 p733 ]
The decision of the Authority follows:

44 FLRA No. 60












March 31, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of a proposal addressing performance awards. The Union did not file a reply brief. For the following reasons, we find that two sections of the proposal are nonnegotiable because they are inconsistent with a Government-wide regulation.

II. Background and Proposal

The Union and the International Association of Machinists and Aerospace Workers (IAM), which represent separate bargaining units of Agency employees, offered proposals concerning performance awards. By letter dated August 22, 1991, the Agency declared nonnegotiable the IAM proposal. According to the Agency, the same letter was sent to the Union and constitutes the Agency's "unsolicited[]" allegation of nonnegotiability on the Union's proposal. Statement of Position at 2.

On October 10, 1991, the Agency sent another letter to the IAM and the Union to "clarify" its position on the negotiability of proposals concerning performance awards. Attachment to Petition for Review. Following service of that letter, the Union timely filed the instant negotiability appeal concerning the following proposal:

Performance Awards, Article XXXIII

Section 1. The budget for performance awards will be determined by the Employer and will be based on the salaries of PARS employees.

Section 2. The employees whose names appear on the final listing to receive an "Outstanding" and "Exceeds fully Successful" rating shall receive a cash award.

Section 3. The covered employees will be awarded performance awards as follows:


O 20% but not less than 10%

EFS 10% but not less than 5%

FS 5% but not less than 2%

Section 4. If there is no budget for performance awards the employee who receives an "Outstanding" and "Exceeds fully Successful" will receive a commendation certificate.

Section 5. The Employer agrees to administer the performance awards program fairly and equitably within their budgetary constraints.

Section 6. The Employer and the Union agree on these definitions for "Outstanding" and "Exceeds fully Successful":

OUTSTANDING - Rated "Above fully Successful" on all critical elements and made significant contributions to the organization's mission.

EXCEEDS FULLY SUCCESSFUL - Rated "Above fully Successful" on the majority of critical elements or as modified by DON directives.

III. Positions of the Parties

A. The Agency

The Agency contends that the petition for review was untimely filed. In this connection, the Agency argues that, as its October 10 letter was merely a reiteration of its August 22 allegation of nonnegotiability, the timeliness of the Union's petition must be measured from the earlier allegation. The Agency also excepts to the Authority's "unjustified decision to not delay the filing due date" to respond to the petition because it did not include copies of previous allegations of nonnegotiability or an explicit statement of the meaning of the proposal. Statement of Position at 3.

As to the merits of the proposal, the Agency states that only sections 2 and 3 are in dispute.(1) The Agency argues that, by mandating performance awards, those two sections are inconsistent with 5 C.F.R. § 430.504(d) and, therefore, are nonnegotiable under section 7117(a)(1) of the Statute.(2)

B. The Union

The Union contends that the proposal does not violate Government-wide regulations. The Union asserts that the percentages contained in section 3 of the proposal are the same as those contained in an Agency instruction.

IV. Analysis and Conclusions

A. Procedural Requirements

We reject the Agency's contention that the petition for review was untimely filed.

The Agency acknowledges that its August 22, 1991, allegation of nonnegotiability was not requested by the Union. The Authority has held that when a union is served with such an allegation, it may ignore the allegation and, subsequently, submit a written request for another allegation and file an appeal when the agency responds or fails to respond to the request. For example, Federal Firefighters Association, Local 58 and Department of the Air Force, Otis Air National Guard Base, Massachusetts, 34 FLRA 855, 859 (1990). A union may choose to appeal from an unsolicited allegation but, if it so chooses, it must do so within the time limit set forth in section 2424.3 of the Authority's regulations. Id.

In this case, the Union chose to ignore the Agency's August 22 unsolicited allegation of nonnegotiability. Accordingly, the time limit to file a negotiability appeal concerning the disputed proposal did not begin.

Subsequently, in a letter dated October 10, 1991, the Agency again stated that the proposal was nonnegotiable. We construe this letter as a second unsolicited allegation of nonnegotiability. As the Union's petition for review was timely filed within 15 days of service of the second unsolicited allegation, it is timely. In this regard, we reject as misplaced the Agency's argument that the October letter is merely a reiteration of its August position. Even assuming that the Agency is correct, the Union was entitled to ignore the first unsolicited allegation and file a petition