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 10 FLRA No. 85
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1858
 (Union)
 
 and
 
 DEPARTMENT OF THE ARMY,
 U.S. ARMY MISSILE COMMAND,
 REDSTONE ARSENAL, ALABAMA
 (Activity)
 
                                            Case No. O-NG-583
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO SECTION 7105(A)(2)(D) 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 REASON INDICATED BELOW, IT HAS BEEN DETERMINED THAT
 THE PETITION WAS UNTIMELY FILED AND THEREFORE MUST BE DISMISSED.
 
    FROM THE SUBMISSIONS OF THE PARTIES IN THE RECORD BEFORE THE
 AUTHORITY, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS CONCERNING
 IMPLEMENTATION OF THE AGENCY'S PERFORMANCE APPRAISAL SYSTEM A DISPUTE
 AROSE WITH RESPECT TO FIVE OF THE UNION'S PROPOSALS.  AFTER EFFORTS OF
 THE FEDERAL MEDIATION AND CONCILIATION SERVICE PROVED UNSUCCESSFUL IN
 RESOLVING THE DISPUTE, A REQUEST FOR ASSISTANCE WAS FILED WITH THE
 FEDERAL SERVICE IMPASSES PANEL.  WHILE THE MATTER WAS PENDING BEFORE THE
 PANEL, THE ACTIVITY NOTIFIED THE UNION BY LETTER OF SEPTEMBER 22, 1981,
 THAT IT INTENDED TO IMPLEMENT A MODIFIED PERFORMANCE APPRAISAL SYSTEM.
 IN ITS LETTER, THE ACTIVITY ALSO STATED THAT "(T)WO ISSUES HAVE BEEN
 DECLARED AT IMPASSE BY THE FEDERAL MEDIATOR AND MANAGEMENT HAS DECLARED
 THREE ISSUES NONNEGOTIABLE DUE TO CONFLICT WITH ARMY-WIDE REGULATIONS."
 THE PANEL SUBSEQUENTLY DECLINED TO ASSERT JURISDICTION OVER THE MATTER
 IN VIEW OF THE NEGOTIABILITY QUESTIONS RAISED BY THE ACTIVITY.  ON
 OCTOBER 19, 1981, THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH
 THE AUTHORITY.
 
    IN ITS STATEMENT OF POSITION, THE ACTIVITY IN EFFECT ARGUES THAT
 SINCE NO ALLEGATION WAS REQUESTED BY THE UNION, AN "ALLEGATION" WITHIN
 THE MEANING OF SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS
 WAS NEVER RENDERED BY THE ACTIVITY AND, THEREFORE, THE CASE IS NOT
 PROPERLY BEFORE THE AUTHORITY.
 
    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 . . . .
 
    THE AUTHORITY RECENTLY CONSIDERED AND DECIDED THE QUESTION OF WHETHER
 AN UNREQUESTED WRITTEN CONTENTION BY AN AGENCY THAT A UNION PROPOSAL WAS
 NONNEGOTIABLE COULD CONSTITUTE AN "ALLEGATION" OF NONNEGOTIABILITY FOR
 THE PURPOSE OF FILING A PETITION FOR REVIEW PURSUANT TO SECTION 2424.3.
 IN INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 121
 AND DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND PRINTING, 10
 FLRA NO. 39(1982), WHERE THE AGENCY'S UNREQUESTED CONTENTION WAS MADE IN
 A PRE-HEARING BRIEF IN THE CONTEXT OF A PANEL PROCEEDING AND SERVED UPON
 THE UNION, THE AUTHORITY HELD THAT SUCH A WRITTEN STATEMENT COULD
 CONSTITUTE AN "ALLEGATION" FOR THE PURPOSE OF APPEAL TO THE AUTHORITY.
 THE AUTHORITY STATED:
 
    . . . (I)T IS WELL ESTABLISHED THAT THE IMPASSE RESOLUTION PROCEDURES
 OF THE PANEL OPERATE
 
    AS ONE ASPECT OF THE COLLECTIVE BARGAINING PROCESS.  THUS, THE AGENCY
 AND THE UNION HEREIN
 
    WERE INVOLVED IN THE COLLECTIVE BARGAINING PROCESS WHEN THE AGENCY
 SUBMITTED ITS ALLEGATION OF
 
    NONNEGOTIABILITY, I.E., ITS PREHEARING BRIEF TO THE PANEL IN WHICH IT
 CONTENDED THAT UNION'S
 
    PROPOSAL WAS NONNEGOTIABLE.  ACCORDINGLY, A NEGOTIABILITY DISPUTE HAS
 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.
 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.
 (FOOTNOTES OMITTED.)
 
    THE UNION IN THIS CASE DID NOT REQUEST ANOTHER ALLEGATION FROM THE
 ACTIVITY BUT, RATHER, PETITIONED THE AUTHORITY FOR REVIEW OF THE
 UNREQUESTED ALLEGATION OF NONNEGOTIABILITY SET FORTH IN THE ACTIVITY'S
 LETTER OF SEPTEMBER 22, 1981.  FOR THE REASONS SET FORTH IN THE BUREAU
 OF ENGRAVING AND PRINTING, THE UNION COULD PROPERLY FILE A PETITION FOR
 REVIEW.
 
    THE QUESTION REMAINS, HOWEVER, AS TO WHETHER THE UNION'S PETITION WAS
 TIMELY FILED.  THE ACTIVITY'S ALLEGATION OF SEPTEMBER 22, 1981, WAS
 SERVED IN PERSON UPON THE UNION ON OR ABOUT THE SAME DATE.  THEREFORE,
 UNDER SECTION 2424.3 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 OCTOBER 7, 1981, IN ORDER TO BE CONSIDERED
 TIMELY.  SINCE THE UNION'S PETITION FOR REVIEW WAS NOT FILED UNTIL
 OCTOBER 19, 1981, IT IS CLEARLY UNTIMELY AND MUST BE DISMISSED ON THAT
 BASIS.
 
    ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW IN
 THIS CASE BE, AND IT HEREBY IS, DISMISSED.  /1/
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 19, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THIS DISMISSAL IS WITHOUT PREJUDICE.  THAT IS, IF THE MATTERS
 PROPOSED TO BE NEGOTIATED CONTINUE 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. 
 
 
 

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