36:0367(45)NG - - AFGE Local 3342 and HHS, SSA, New York Region - - 1990 FLRAdec NG - - v36 p367



[ v36 p367 ]
36:0367(45)NG
The decision of the Authority follows:


36 FLRA No. 45

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3342

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

NEW YORK REGION

(Agency)

0-NG-1763

ORDER DISMISSING PETITION FOR REVIEW

July 20, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns (1) a provision of a locally negotiated Memorandum of Understanding (MOU) disapproved by the Social Security Administration under section 7114(c) of the Statute, and (2) a proposal submitted as an alternative to the provision which was disapproved. Both the disapproved provision and the alternative proposal concern implementation of a freeze on part-time employees working in excess of their regular tours of duty. For the reasons that follow, we conclude that the Union's petition for review must be dismissed.

II. Background and Positions of the Parties

On August 21, 1989, the parties executed an MOU concerning implementation of a freeze on part-time employees working in excess of their regular tours of duty and submitted the MOU for review under section 7114(c) of the Statute. On September 12, 1989, the Acting Director, Division of Labor and Employee Relations, U.S. Department of Health and Human Services, Social Security Administration disapproved one article of the MOU, denoted as Item 4, stating that Item 4 was "inconsistent with the right to direct employees[]" and "not appropriate for inclusion in the MOU." See September 12, 1989, Memorandum to Assistant Regional Commissioner for Management and Budget, New York, at 1, attached to the Union's Petition for Review.

Thereafter, on October 13, 1989, in response to the disapproval of Item 4 in the MOU, the Union submitted a three-part proposal as an alternative to Item 4. According to the Union, "[t]he Agency insisted that the first two parts of the [proposal] . . . were not negotiable, although, when asked, would not commit the assertion to writing." Petition for Review at 2. On October 19, 1989, the Union filed a petition for review with the Authority concerning (1) the Agency head's disapproval of Item 4 in the MOU, and (2) the two parts of the October 13 proposal which the Union claims the Agency declared nonnegotiable.

In its statement of position filed on November 22, 1989, the Department of Health and Human Service (DHHS) requests that the Authority dismiss the Union's negotiability petition. DHHS argues that the portion of the Union's petition for review contesting the disapproval of Item 4 of the MOU was not timely filed. DHHS argues further that the portion of the Union's petition for review concerning the two disputed parts of the October 13 proposal also should be dismissed because the Union did not submit a written request for a written allegation that the proposal was nonnegotiable. In addition, DHHS claims that the Union's petition for review was deficient because the Union had not served DHHS with a copy of its petition for review, as required by 5 C.F.R. § 2424.4. DHHS also provided its position on the merits of Item 4, arguing that Item 4 is inconsistent with management's right under section 7106(a)(2)(A) of the Statute to direct employees.

On December 29, 1989, the Authority issued an Order To Show Cause why the Union's petition for review should not be dismissed. As to Item 4, which had been disapproved under section 7114(c) of the Statute, the Authority calculated that, under its Rules and Regulations, the Union's petition for review had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than October 2, 1989. As to the proposal included in the Union's petition for review, the Authority noted that DHHS claimed that the Union did not request an allegation of nonnegotiability concerning that proposal. The Authority noted further that the Union's petition for review was also deficient because, among other things, the Union's petition had not been served on the head of the Agency as required by 5 C.F.R. § 2424.4(b).

In its response to the Order To Show Cause, the Union claims that Item 4 "was rejected by the head of the agency as 'not appropriate for inclusion in the MOU' . . . . [The Agency] did not indicate that the item was not-negotiable." Union Response to Order To Show Cause at 1 (quoting September 12, 1989, Memorandum to Assistant Regional Commissioner for Management and Budget, New York, at 1). The Union claims that Item 4 was not declared nonnegotiable until October 13, 1989, which date, according to the Union, "is the controlling date for the time limits for this issue." Id.

As to the proposal included in its petition for review, the Union argues that the proposal was submitted to the Agency on October 13, 1989, as a counter-proposal to Item 4. The Union claims that at the October 13 meeting the Agency indicated that the alternative proposal was nonnegotiable. Consequently, the Union argues that its petition for review filed on October 19, 1989, was filed "well within the 15 day time-frame." Id. Although the Union also "admits that it did not reduce [to writing] its request for a statement of non-negotiability on the second proposal submitted[,]" the Union claimed that management "indicated that it did not believe management was required to provide a written statement of non-negotiability." Id. Thus, according to the Union, "[r]ather than waste agency time, the Union proceeded to file the negotiability appeal." Id.

In addition, the Union disputes the Agency's claim that the Union did not serve its petition for review on the head of the Agency. The Union argues "[t]he negotiations were between the Social Security Administration and the Union. It was the Social Security Administration that did the 7114(c) review. It was an agent of the Social Security Administration that rejected one item after the 7114(c) review." Id. at 2. The Union states that a copy of its petition for review was sent to the Commissioner of Social Security on the same day that the appeal was sent to the Authority. Thus, the Union concludes that it "believes that it properly served the negotiability appeal on the head of the agency." Id.

III. Analysis and Conclusions

A. The Petition for Review as to Item 4 is Untimely

The time limit for filing a petition for review of negotiability issues is 15 days after service on the Union of the Agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. The date of service is the date the allegation is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).

The submission of an agreement to an agency head for approval or disapproval under section 7114(c) of the Statute constitutes a request for an allegation of nonnegotiability and the 15-day time limit to file a petition for review starts at the date the disapproval is served on the union. See, for example, Engineers and Scientists of California, MEBA (AFL-CIO) and United States Environmental Protection Agency, 29 FLRA 1355, 1356 (1987). There is no requirement in either the Statute or the Authority's Rules and Regulations that a disapproval of a locally executed agreement must be made with specificity or only with particular wording. See, for example, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1512-13 (1987).

As noted above, the MOU executed on August 21, 1989, was submitted for review under section 7114(c) of the Statute. On September 12, 1989, in a written memorandum, the Acting Director, Division of Labor and Employee Relations, U.S. Department of Health and Human Services, Social Security Administration stated that, except for Item 4, the MOU was approved. As to Item 4, the Acting Director noted that "Item 4 prevents management from holding employees accountable for their performance under certain conditions, and is thereby inconsistent with the right to direct employees. Therefore, . . . it is not appropriate for inclusion in the MOU." See September 12, 1989, Memorandum to Assistant Regional Commissioner for Management and Budget, New York, at 1, attached to the Union's Petition for Review. Contrary to the Union's claim, this wording clearly indicates that Item 4 was deemed to be nonnegotiable by the Agency. Thus, we reject the Union's contention that Item 4 was not declared nonnegotiable until October 13, 1989.

Although Item 4 was disapproved on September 12, 1989, and the Union indicates that it received the disapproval on September 15, 1989, there is nothing in the record to establish when the disapproval was actually served on the Union. Presuming that the disapproval was served on the Union by mail on September 12, 1989, resulting in the addition of 5 days to the 15-day time period, any petition for review of the Agency's disapproval concerning Item 4 had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than October 2, 1989, in order to be considered timely. 5 C.F.R. §§ 2424.3 and 2429.22.

If the disapproval was hand-delivered to the Union on September 15, 1989, the date the Union indicates that it received the disapproval, any petition for review of the Agency's disapproval concerning Item 4 also had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than October 2, 1989, in order to be considered timely. 5 C.F.R. § 2424.3.

The Union's petition for review as to Item 4, however, was filed with the Authority (postmarked by the U.S. Postal Service) on October 19, 1989. Consequently, because the Union's petition for review as to Item 4 was filed on October 19, 1989, it is untimely and must be dismissed.

B. The Petition for Review as to the Union's Alternative Proposal Does Not Meet the Requirements of 5 U.S.C. § 7117 and 5 C.F.R. § 2424.1

The Authority will consider a petition for review of a negotiability issue under 5 U.S.C. § 7117 and 5 C.F.R. Part 2424 only when the parties are in dispute as to whether a union proposal is inconsistent with law (including the Statute), rule or regulation. See, for example, Federal Professional Nurses Association, Local 2707 and U.S. Department of Health and Human Services, Federal Employees Occupational Health, Region III, 34 FLRA 71 (1989). In order to establish that such a dispute exists, a union is required to submit with its petition for review a copy of a written allegation by an agency that a matter sought to be negotiated is inconsistent with law, including the Statute, rule or regulation. 5 C.F.R. § 2424.4(a)(3). Requiring a union to obtain and submit a written allegation by an agency that a matter sought to be negotiated is deemed to be nonnegotiable "serves the purpose of avoiding unnecessary litigation in two ways. First, and most obviously, it assures that there actually is a dispute over the negotiability of a proposal. Second, it affords the parties an opportunity to explore alternatives." American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 36 FLRA No. 9, slip op. at 2 (1990).

We note that a union may obtain a written allegation of nonnegotiability in two ways. First, as contemplated by 5 C.F.R. § 2424.3, a union may make a written request for such an allegation from the agency. Second, the Authority has held that a union may file a petition for review from an unsolicited written allegation that a matter sought to be negotiated is deemed to be nonnegotiable by the agency. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723-25 (1990).

We also note that a union may file a petition for review without including a written allegation in only one circumstance. That is, as provided in 5 C.F.R. § 2424.3, if a union makes a written request for an agency allegation that a matter sought to be negotiated is deemed to be nonnegotiable and the agency fails to respond, the union may file its petition for review after 10 days without an agency allegation. The Authority has indicated that in such circumstance, an agency's failure to respond to a union request will be construed as a constructive declaration of nonnegotiability giving rise to a right of appeal to the Authority. See American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 676-77 (1990).

In this case, the proposal included in the Union's petition for review was submitted during negotiations on October 13, 1989, as an alternative to Item 4, which had been disapproved during section 7114(c) review. The Union, however, did not include in its petition for review an Agency allegation that the October 13 proposal was nonnegotiable. Rather, the Union claimed that "[t]he Agency insisted that the first two parts of the [proposal] . . . were not negotiable, although, when asked, would not commit the assertion to writing." Petition for Review at 2. Further, in response to the Order To Show Cause, the Union admitted "that it did not reduce [to writing] its request for a statement of non-negotiability on the second proposal submitted." Union Response to Order To Show Cause at 1. Instead, according to the Union, "[d]uring the negotiating session of October 13, 1989 the management team indicated that it did not believe management was required to provide a written statement of non-negotiability. Rather than waste agency time, the Union proceeded to file the negotiability appeal." Id.

We conclude, however, that the Union's petition for review is not properly before us. In our view, accepting the petition would be contrary to the spirit and intent of the regulatory requirement that proposals offered in negotiations be submitted to an agency for a written allegation of nonnegotiability prior to filing a petition for review.

As the Union did not make a written request for an allegation of nonnegotiability, and as there is no evidence that the Agency served the Union with an unsolicited written allegation of nonnegotiability, the Union's petition for review as to the October 13 proposal is not properly before us. Accordingly, the Union's petition for review as to the October 13 proposal is dismissed without prejudice to the Union's refiling at a later date should a negotiability dispute continue to exist after the Union has submitted a proposal to the Agency for an allegation of nonnegotiability in accordance with 5 C.F.R. § 2424.3.

C. The Petition For Review is Deficient Because It Was Not Served on the Agency Head as Required by 5 C.F.R. § 2424.4(b)

Among other requirements, any petition for review filed with the Authority "shall be served on the agency head and on the principal agency bargaining representative at the negotiations." 5 C.F.R. § 2424.4(b). In the December 29, 1989, Order To Show Cause, the Union was informed that its petition for review was deficient because, among other matters not relevant in this dispute, it was not served on the agency head. In its response to the Order To Show Cause, the Union argued that "[t]he negotiations were between the Social Security Administration and the Union. It was the Social Security Administration that did the 7114(c) review. It was an agent of the Social Security Administration that rejected one item after the 7114(c) review." Union Response to Order To Show Cause at 2. The Union states that a copy of its petition for review was sent to the Commissioner of Social Security on the same day that the appeal was sent to the Authority. Thus, the Union concludes that it "believes that it properly served the negotiability appeal on the head of the agency." Id.

We conclude that the Union has not complied with the requirement of 5 C.F.R. § 2424.4(b). That is, the Social Security Administration is a subordinate portion of the Department of Health and Human Services. See United States Government Manual 1989/1990, at 318. Consequently, the Union is required to serve a copy of its petition for review on the Secretary of Health and Human Services, or his designee. Because the Union has failed to comply with the requirements of 5 C.F.R. § 2424.4(b), its petition for review is deficient.

We also conclude, however, that the Union's failure to comply with the requirements of 5 C.F.R. § 2424.4(b) is not a basis on which to dismiss its petition for review. That is, notwithstanding the Union's failure to serve the head of the Agency, or his designee, the DHHS filed a statement of position in this case. Thus, DHHS was not in any manner prejudiced by the Union's failure to comply with 5 C.F.R. § 2424.4(b).

IV. Summary

The Union's petition for review as to Item 4 is untimely and must be dismissed. The petition for review as to the alternative proposal is not properly before us and also must be dismissed. However, the dismissal as to the alternative proposal is without prejudice to the Union's refiling a petit