34:0721(125)NG - - NFFE Local 422 and DOI, Bureau of Indian Affairs, Colorado River Agency - - 1990 FLRAdec NG - - v34 p721



[ v34 p721 ]
34:0721(125)NG
The decision of the Authority follows:


34 FLRA No. 125

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 422

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

COLORADO RIVER AGENCY

0-NG-1641

(33 FLRA 853)

ORDER DENYING MOTION FOR RECONSIDERATION

February 2, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion for reconsideration filed by the National Federation of Federal Employees, Local 422 (the Union). The Union seeks reconsideration of the Authority's Order of March 17, 1989, in 33 FLRA 853 dismissing the Union's petition for review as being untimely filed. The U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency (the Agency) did not file an opposition to the Union's motion for reconsideration.

For the reasons discussed below, we deny the motion.

II. Background

The Agency and the Union were parties to a proceeding before the Federal Service Impasses Panel (the Panel). In response to a request from the Panel for a written statement of position regarding the disputed proposals, the Agency notified the Panel that it considered the Union's proposals to be nonnegotiable. On October 3, 1988, the Agency served a copy of its statement of nonnegotiability on the Union. The Union states that it did not receive a copy of the Agency's allegation of nonnegotiability until November 7, 1988. The Union filed a petition for review of negotiability issues with the Authority on December 29, 1988.

The Union's petition for review was dismissed in an order dated March 17, 1989, and signed by the Acting Executive Director of the Authority. The order stated that because the Union did not request the Agency's allegation of nonnegotiability, the allegation constituted an unrequested allegation of nonnegotiability. The order noted that under the Authority's Regulations, a union may file a petition for review of an unrequested allegation of nonnegotiability, but if it does so the petition must be filed within 15 days after service of the allegation. Because the petition in this case was filed after that time period, the petition was found to be untimely filed.

III. Motion for Reconsideration

The Union contends that the order dismissing the petition for review "is in direct conflict with Authority precedent and provides no explanation why previous decisions [should] not be followed." Motion for Reconsideration (Motion) at 1. In support of this contention, the Union cites American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512, 513-14 (1986), in which the Authority held that a petition for review was timely filed because the agency failed to respond to a written request for a written allegation of nonnegotiability.

The Union states that as required by Article 22, Section 7 of its collective bargaining agreement, it submitted a letter to the Agency on November 7, 1988, "clarifying the intent of its proposals over which the Agency had raised negotiability objections. . . . The Agency never replied to this letter." Motion at 2. Article 22, Section 7 of the parties' agreement states that "after the Union has provided [the Agency] in writing with clarification of the intent of its proposal(s) along with a request for a negotiability determination, the [Agency] will provide the Union with a written statement of it[s] position of non-negotiability[.]" Motion, Attachment 1.

The Union also argues that its motion should be granted because the Authority's Acting Executive Director, who signed the order dismissing the petition for review, had no delegation of authority to act on the Union's petition for review. The Union contends that even if the Acting Executive Director had such authority, the decision in this case should be made by the Members of the Authority because the decision departs from long-standing precedent. Motion at 4.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established "extraordinary circumstances" within the meaning of section 2429.17.

A. The Order Is Consistent With Precedent

In Naval Weapons Station, the Authority discussed the issue of whether a union is required to file a petition for review of negotiability issues in response to an unrequested allegation of nonnegotiability. The Authority stated:

[A] union is not required to file a petition for review in response to an allegation of nonnegotiability made by an agency in the context of a [Panel] proceeding. Rather, the union may ignore such unsolicited allegation and instead elect to request in writing a written allegation of nonnegotiability from the [a]gency. . . . If the union elects to request an allegation from the agency, the union must file its petition for review of such allegation within the time limits established in section 2424.3[.]

24 FLRA at 513 (citation omitted). If a union elects to file an appeal from an unrequested allegation of nonnegotiability, "it must file its appeal within the time limit prescribed in the Statute and the Authority's Rules and Regulations." Production, Maintenance, and Public Employees Union, Local No. 1276, Affiliated With LIUNA, AFL-CIO and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 9 FLRA 919, 920 (1982) (Defense Depot Tracy, Tracy, California).

The Union filed its petition in response to an unrequested allegation of nonnegotiability made by the Agency during a Panel proceeding. The Union was not required to file a petition in response to the Agency's unrequested allegation of nonnegotiability. The Union could have ignored the unrequested allegation and elected to request in writing a written allegation of nonnegotiability from the Agency. See Naval Weapons Station, 24 FLRA at 513.

Unlike the situation in Naval Weapons Station, nothing in the record establishes that the Union requested in writing a written allegation of nonnegotiability from the Agency. Although the Union submitted a letter to the Agency "clarifying the intent of its proposals," the letter did not request that the Agency provide the Union with a written allegation of nonnegotiability. In the absence of a request for a written allegation of nonnegotiability, the Union's petition must have been filed within 15 days after service of the unrequested allegation of nonnegotiability. 5 C.F.R. º 2424.3.

Because the Union's petition was not filed within 15 days after service of the Agency's unrequested allegation, the dismissal of the petition was proper and consistent with precedent. See, for example, American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 499 (1982). Accordingly, the Union's contention that the dismissal of the petition is in direct conflict with Authority precedent is without merit and provides no basis on which to grant the motion for reconsideration.

The dismissal of the petition for review is without prejudice. If the matters proposed to be negotiated continue to be in dispute between the parties, the Union