39:0973(82)NG - - NFFE, Local 284 and DOD, Naval Air Engineering Center, Lakehurst, NJ - - 1991 FLRAdec NG - - v39 p973
[ v39 p973 ]
The decision of the Authority follows:
39 FLRA No. 82
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
NAVAL AIR ENGINEERING CENTER
LAKEHURST, NEW JERSEY
ORDER DISMISSING PETITION FOR REVIEW
February 28, 1991
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(D) of the Federal Service Labor-Management Relations Statute (the Statute). For the following reasons, we find that the proposal on appeal in this case does not differ materially from a provision in the parties' locally negotiated agreement that was disapproved by the Agency head pursuant to review under section 7114(c) of the Statute. Accordingly, we conclude that the petition for review of the proposal must be dismissed.
On June 27, 1990, the Agency head disapproved a provision of the parties' agreement that permitted an employee on temporary duty assignment (TDY) 1 phone call home at Government expense to notify family of safe arrival and 1 phone call home at Government expense if return travel arrangements are changed. See Enclosure 1 attached to the Agency's Statement of Position. The Union did not appeal the Agency head's disapproval of this provision.
On September 14, 1990, the Union requested an allegation of nonnegotiability from the Agency as to a proposal that allowed employees to make 1 phone call home during arrival at their TDY station and 1 phone call home when there is a change in their travel orders. The proposal provides that such phone calls shall be at Government expense and will take no longer than 5 minutes. Union's Petition for Review at 1.
It is well established that the agency head's disapproval of a provision in a locally executed agreement pursuant to review under section 7114(c) of the Statute is an allegation of nonnegotiability for purposes of appeal to the Authority. American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1741 and Department of Justice, Federal Prison System, Federal Corrections Institution, Milan, Michigan, 23 FLRA 7, 9 (1986). A petition for review of negotiability issues must be filed with the Authority within 15 days after service on the Union of the Agency's allegation of nonnegotiability. 5 C.F.R. º 2424.3. 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. º 2429.22. A Union appeal of the Agency head's disapproval on June 27, 1990 of the locally negotiated provision covering phone calls home would therefore have been due at the Authority, assuming that the disapproval was served on the Union by mail, no later than July 17, 1990.
Where a petition for review concerns a dispute as to proposal that is not substantively changed from a provision that had previously been disapproved by the Agency head under section 7114(c) review, the effect of the petition is to seek review of the previous disapproval. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 991-92 (1987); American Federation of Government Employees, AFL-CIO, Local 1786 and U.S. Marine Corps, Marine Corps Development and Education Command, Quantico, Virginia, 26 FLRA 184 (1987). The Union's September 14 proposal is substantively identical to the provision of the parties' agreement disapproved by the Agency head on June 27, 1990. Agency's Statement of Position at 2. Consequently, the Union's petition for review in this case essentially seeks review of the Agency's June 27, 1990, disapproval of the locally executed agreement provision. The petition for review filed in September 1990 was therefore filed more than 15 days from the date of that allegation of nonnegotiability and is untimely under the time limits set forth in section 2424.3 of our Regulations. See also American Federation of Government Employees, AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987).
Accordingly, the Union's petition for review is dismissed.