11:0359(72)NG DIGEST HEADINGS STATUTE SUBJECT MATTER INDEX ENTRIES DIGEST NOTES ORDER DISMISSING PETITION FOR REVIEW -- 1983 FLRAdec NG



[ v11 p359 ]
11:0359(72)NG
The decision of the Authority follows:


11 FLRA NO. 72

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2

     (Union)

     and

DEPARTMENT OF THE ARMY,
U.S. ARMY MATERIAL DEVELOPMENT
AND READINESS COMMAND, HARRY
DIAMOND LABORATORIES

     (Activity)

Case No. 0-NG-639

 

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. As explained below, the union's petition must be dismissed.

In this case, the local parties executed a collective bargaining agreement on December 2, 1981, and forwarded the agreement to the agency head for review and approval pursuant to section 7114(c) of the Statute. 1 Subsequently, by letter of December 21, 1981, an official [ v11 p 359] acting for the agency head approved the agreement with the exception of two provisions. The letter set forth reasons for disapproving those two provisions and stated that "(t)his letter constitutes the agency's written allegation of nonnegotiability with regard to the disapproved provisions of this agreement in accordance with Part 2424.3, Rules and Regulations of the Federal Labor Relations Authority." 2 The letter was addressed to the commander of the activity and expressly provided that a copy was to be served on the union by certified mail. The record discloses that the copy was served on the union by certified mail on December 22, 1981. The union filed its instant petition for review with the Authority on January 20, 1982.

In its petition, the union essentially contends that the letter of December 21, 1981 was an internal agency communication and not an allegation of nonnegotiability within the meaning of the Authority's Rules and Regulations. The union further contends that the agency did not serve any such allegation on the union within the 30-day period prescribed and that the parties' entire agreement therefore went into effect by operation of section 7114(c)(3) of the Statute. The union maintains that it filed the instant petition to protect its rights in the event that the letter might be construed as an allegation.

In its statement of position, 3 the agency contends, among other things, that the letter disapproving the agreement provisions in question clearly constituted the agency's allegation of nonnegotiability under the Authority's Rules and Regulations and since the union's petition was submitted 29 days after the date that the allegation was served on the union, the petition should be dismissed as untimely filed. The union filed a response to the agency's statement essentially disagreeing with the agency's position that the letter was an allegation, reiterating its argument that the letter was an internal communication concerning the position of a management official, and contending that a separate communication specifically addressed to the union was necessary to effect appropriate service of an allegation of nonnegotiability. [ v11 p 360 ]

The Authority has determined previously that a written notification of a disapproval pursuant to section 7114(c) of the Statute from an agency's reviewing official to an activity was, when served on the union involved, an allegation of nonnegotiability under section 2424.3 of the Authority's Rules and Regulations. See, e.g., American Federation of Government Employees, AFL - CIO, Local 896 and Defense Printing Service, Annapolis, Maryland, 6 FLRA No. 39 (1981), request for reconsideration denied: December 24, 1981; and American Federation of Government Employees, AFL - CIO, Local 1052 and United States Army Engineer Center, Fort Belvoir, Virginia, 6 FLRA No. 82 (1981). The Authority also determined in those and like cases that the time limit for filing a petition for review of the negotiability issues involved begins to run from the day a copy of the disapproval is served on the union. The Authority has not held that a separate letter of transmittal is required to properly effect service of an agency's disapproval notice on a union, or otherwise specified any form or method for accomplishing service except as provided in section 2429.27(b) of the Rules and Regulations. 4 The Authority has, however, indicated that the record in a case must disclose how and when an allegation was served on the union in order to establish a basis for finding a petition for review untimely. See, American Federation of Government Employees, AFL - CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA No. 86 (1981).

In this case, the agency's letter of December 21 was a clear and unmistakable disapproval of the two disputed provisions in the parties' agreement and, further, the letter was expressly identified as the agency's allegation of nonnegotiability which was to be served on the union. While the union's asserted misunderstanding or misinterpretation might have been avoided if the disapproval notice had been forwarded by a separate letter of transmittal, a separate letter, as indicated above, is not required to properly accomplish service of such an allegation. Moreover, it has been clearly established how and when the allegation was served on the union, i.e., by certified mail on December 22, 1981.

Therefore, since the disapproval was served on the union within 30 days from the date the agreement was signed by the parties, the disputed provisions did not, contrary to the union's contention, go into effect.

The question remains as to whether the union's petition was timely filed. Under section 2424.3 of the Authority's Rules and Regulations, as well as section 2429.22, which is also applicable in computation of the time limit here involved, the union's petition for review had to be filed with the Authority no later than the close of business on January 11, 1982, in order to be considered timely. However, as already [ v11 p 361 ] noted, the union's petition was not filed until January 20, 1982. Therefore, the union's petition was untimely filed and must be denied on that basis. 5

Accordingly, the union's petition for review is hereby dismissed.

 

For the Authority.

Issued, Washington, D.C., February 18, 1983.

James J. Shepard, Executive Director

 

[ v11 p 362 ]

FOOTNOTES

Footnote 1 Section 7114(c) of the Statute provides, in pertinent part: (c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of an agency. (2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision). (3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation.

Footnote 2 Section 2424.3 of the Rules and Regulations provides, in pertinent part: 2424.3 Time limit for filing. 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....

Footnote 3 A request by the agency to file a supplemental submission has been denied.

Footnote 4 Section 2429.27(b) provides, in pertinent part: Service of any document or paper under this subchapter, by any party, including documents and papers served by one party on another, shall be made by certified mail or in person....

Footnote 5 The dismissal is without prejudice. That is, if the matters involved continue in dispute between the parties, an allegation may be requested in writing and a petition duly filed by the union wi