23:0509(70)NG - Overseas Federation of Teachers and DOD Dependents Schools, Mediterranean Region -- 1986 FLRAdec NG

 23 FLRA No. 70
 
 OVERSEAS FEDERATION 
 OF TEACHERS
 Union
 
 and
 
 DEPARTMENT OF DEFENSE 
 DEPENDENTS SCHOOLS 
 MEDITERRANEAN REGION
 Agency
 
                                            Case No. 0-NG-999
 
                   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.  For the reasons indicated
 below, it has been determined that the Union's petition for review was
 untimely filed and must be dismissed on that basis.
 
    From the record in this case it appears that on November 14, 1983,
 the Agency served on the Union by mail its allegation of
 nonnegotiability with respect to the four Union proposals here in
 dispute.  Since, under section 7117(c) of the Statute and section 2424.3
 of the Authority's Rules and Regulations, the time limit for filing a
 petition for review is fifteen days after the date the Agency's
 allegation is served on the Union, the Union's petition for review was
 due in the national office of the Authority on December 5, 1983.  The
 Union's petition for review was not filed with the Authority until
 December 12, 1983 and so the Authority dismissed the case on the basis
 that it was untimely filed.  Overseas Federation of Teachers and
 Department of Defense Dependents Schools, Mediterranean Region, 13 FLRA
 721 (1984), Request for Reconsideration denied, 15 FLRA 1047 (June 13,
 1984).
 
    On February 28, 1984, the Union again requested a written declaration
 of nonnegotiability from the Agency with respect to the same four
 proposals which had been subject to the dismissal referred to above.
 The Agency informed the Union that the Union's request was the same as
 that to which it had responded by its allegation in November, 1983, that
 it had stated its position to the Union at that time, and that it would
 not provide the Union with a new allegation.  On May 14, 1984, the Union
 filed the instant negotiability appeal with the Authority seeking review
 of the four proposals.  It claims that the appeal is timely under a
 proviso to section 2424.3 of the Authority's Rules and Regulations,
 which permits an appeal to be filed after an agency allegation is
 requested and the agency has failed to provide it.
 
    The Authority has held that a union may file a petition for review of
 negotiability issues without a prior written agency allegation where the
 Union has requested such an allegation and the agency has failed to
 provide it.  The requirement that a petition for review must be filed
 within 15 days from the date of service on the Union of an agency
 allegation of nonnegotiability does not apply in such circumstances.
 See, for example, National Treasury Employees Union and NTEU Buffalo
 District Joint Council and Internal Revenue Service, Buffalo District
 (and the cases consolidated therewith), 3 FLRA 337 (1980).  The fact
 that the Union filed its petition for review on May 14, 1984,
 approximately seventy-five days after it had requested a written
 allegation from the Agency, would not, therefore, render its petition
 untimely and would not, in and of itself, provide a basis for dismissing
 the Union's appeal.
 
    However, the record demonstrates that the Union's petition, in
 essence, seeks review of the Agency's earlier allegation, which the
 Agency provided to the Union in November, 1983.  The Authority has held
 that "where a petition for review is filed concerning an agency's
 allegation of nonnegotiability which is only a restatement of a prior
 allegation, and no changes in the substance or language of the proposal
 have been effectuated during the period between allegations, the
 petition seeks review of the earlier allegation." American Federation of
 Government Employees, AFL-CIO, Local 1336 and Department of Health and
 Human Services, Social Security Administration, 21 FLRA No. 1 (1986).
 While, strictly speaking, the Agency did not in this case provide the
 Union with a second written allegation, it made clear to the Union that
 its position taken in the earlier allegation had not changed,
 reaffirming its previous position with respect to the four Union
 proposals at issue.  Moreover, as already noted, the record indicates
 that the proposals in the present appeal were the same ones that had
 been subject to the Agency's November, 1983 allegation of
 nonnegotiability.  There had been no change in either the substance or
 the language of the proposals between November, 1983, and February 28,
 1984.  Compare American Federation of Government Employees, AFL-CIO,
 Local 2303 and Metropolitan Washington Airports, Federal Aviation
 Administration, U.S. Department of Transportation, 17 FLRA 17 (1985),
 petition for review filed sub nom. American Federation of Government
 Employees, AFL-CIO v. Federal Labor Relations Authority, No. 85-1248
 (D.C. Cir. April 25, 1985) (recombination of various parts of proposals
 previously declared nonnegotiable did not constitute a change in the
 substance or language of the proposals).  It must be concluded that the
 substance of the dispute between the parties concerns the Agency's
 November, 1983, allegation that the four proposals are nonnegotiable.
 As noted above, the Union's first appeal, filed on December 12, 1983,
 was untimely.  All the more so, the Union's second appeal from that
 allegation, filed with the Authority on May 14, 1984, was outside the
 time limits set forth in section 2424.3 of the Authority's regulations
 and, therefore, untimely.
 
                                   ORDER
 
    As the Union's petition for review was untimely filed, and apart from
 other considerations, it is hereby dismissed.
 
    For the Authority,
 
    Issued, Washington, D.C., September 29, 1986.
                                       /s/ Harold D. Kessler
                                       Director of Case Management