09:0919(127)NG - Production, Maintenance, and Public Employees Union Local No. l276, Affiliated with Liuna and Defense Logistics Agency, Defense Depot Tracy, Tracy, CA -- 1982 FLRAdec NG

 9 FLRA No. 127
 
 PRODUCTION, MAINTENANCE, AND PUBLIC
 EMPLOYEES UNION, LOCAL NO. 1276,
 AFFILIATED WITH LIUNA, ALF-CIO
 (Union)
 
 and
 
 DEFENSE LOGISTICS AGENCY,
 DEFENSE DEPOT TRACY,
 TRACY, CALIFORNIA
 (Agency)
 
                                            Case No. O-NG-625
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    THIS MATTER 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 THEREFORE MUST BE DISMISSED.
 
    FOR THE SUBMISSIONS OF THE PARTIES IN THE RECORD BEFORE THE
 AUTHORITY, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS CONCERNING
 CERTAIN ASPECTS OF THE AGENCY'S UPWARD MOBILITY PROGRAM A DISPUTE AROSE
 WITH RESPECT TO A NUMBER OF THE UNION'S PROPOSALS.  AFTER EFFORTS OF THE
 FEDERAL MEDIATION AND CONCILIATION SERVICE PROVED UNSUCCESSFUL IN
 RESOLVING THE DISPUTE, THE UNION FILED A REQUEST FOR ASSISTANCE WITH THE
 FEDERAL SERVICE IMPASSES PANEL.  IN RESPONSE TO A REQUEST FROM THE PANEL
 FOR A WRITTEN STATEMENT OF POSITION REGARDING THE DISPUTED PROPOSALS,
 THE AGENCY, BY LETTER OF NOVEMBER 4, 1981, NOTIFIED THE PANEL THAT IT
 CONSIDERED THE PROPOSALS TO BE NONNEGOTIABLE.  IN A SEPARATE LETTER TO
 THE UNION ON THE SAME DATE, THE AGENCY NOTIFIED THE UNION THAT IT HAD
 DETERMINED THAT THE UNION'S PROPOSALS WERE NONNEGOTIABLE AND ALSO SERVED
 A COPY OF ITS DETAILED STATEMENT TO THE PANEL ON THE UNION.  THE PANEL
 SUBSEQUENTLY DECLINED TO ASSERT JURISDICTION OVER THE MATTER IN VIEW OF
 THE NEGOTIABILITY QUESTION RAISED BY THE AGENCY.  ON DECEMBER 22, 1981,
 THE UNION FILED THE INSTANT PETITION FOR REVIEW OF THE NEGOTIABILITY
 ISSUES WITH THE AUTHORITY.
 
    SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS, WHICH
 IMPLEMENTS SECTION 7117(C)(2) OF THE STATUTE, PROVIDES, IN PERTINENT
 PART:
 
    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.
 THE EXCLUSIVE
 
    REPRESENTATIVE SHALL REQUEST SUCH ALLEGATION IN WRITING AND THE
 AGENCY SHALL MAKE THE
 
    ALLEGATION IN WRITING AND SERVE A COPY ON THE EXCLUSIVE
 REPRESENTATIVE . . . .
 
    ADDITIONALLY, SECTION 2429.22 OF THE RULES AND REGULATIONS PROVIDES,
 IN PERTINENT PART:
 
    WHENEVER A PARTY HAS THE RIGHT OR IS REQUIRED TO DO SOME ACT . . .
 WITHIN A PRESCRIBED
 
    PERIOD AFTER SERVICE OF A NOTICE OR OTHER PAPER UPON SUCH PARTY, AND
 THE NOTICE OR PAPER IS
 
    SERVED ON SUCH PARTY BY MAIL, FIVE (5) DAYS SHALL BE ADDED TO THE
 PRESCRIBED PERIOD:  . . . .
 
    IN A CASE SUCH AS HERE INVOLVED, WHERE A UNION IS SERVED WITH AN
 ALLEGATION OF NONNEGOTIABILITY WHICH THE UNION HAD NOT REQUESTED IN
 WRITING FROM THE AGENCY, THE UNION HAS A NUMBER OF POSSIBLE COURSES OF
 ACTION.  THUS, A UNION SERVED WITH AN UNREQUESTED ALLEGATION MAY, FOR
 EXAMPLE, (1) CHOOSE TO FURTHER ATTEMPT TO REACH AGREEMENT WITH THE
 AGENCY ON THE MATTER IN DISPUTE;  OR, (2) AS PROVIDED UNDER SECTION
 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS, EXERCISE ITS RIGHT TO
 SUBMIT A WRITTEN REQUEST TO THE AGENCY FOR ANOTHER ALLEGATION AND TO
 FILE A PETITION FOR REVIEW OF THE NEGOTIABILITY ISSUES WITH THE
 AUTHORITY IN ACCORDANCE WITH SECTION 2424.3 WHEN THE AGENCY SUBSEQUENTLY
 RESPONDS (OR FAILS TO RESPOND) TO THE WRITTEN REQUEST;  OR, (3) AS THE
 UNION HERE CHOSE TO DO, FILE AN APPEAL FROM THE UNREQUESTED ALLEGATION.
 HOWEVER, IF THE UNION DECIDES TO FOLLOW THE LATTER COURSE OF ACTION, IT
 MUST FILE ITS APPEAL WITHIN THE TIME LIMIT PRESCRIBED IN THE STATUTE AND
 THE AUTHORITY'S RULES AND REGULATIONS.
 
    IN THIS CASE, AS INDICATED ABOVE, THE AGENCY'S ALLEGATION OF
 NONNEGOTIABILITY WAS NOT REQUESTED BY THE UNION, BUT RATHER, WAS
 RENDERED IN RESPONSE TO A PANEL REQUEST.  THE ALLEGATION WAS DATED
 NOVEMBER 4, 1981, AND APPEARS TO HAVE BEEN SERVED ON THE UNION BY MAIL
 ON THE SAME DATE.  THEREFORE, UNDER SECTIONS 2424.3 AND 2429.22 OF THE
 AUTHORITY'S RULES AND REGULATIONS, ANY APPEAL FROM THAT ALLEGATION HAD
 TO BE FILED WITH THE AUTHORITY NO LATER THAN THE CLOSE OF BUSINESS ON
 NOVEMBER 24, 1981, IN ORDER TO BE CONSIDERED TIMELY.  SINCE THE UNION'S
 INSTANT APPEAL WAS NOT FILED UNTIL DECEMBER 22, 1981, IT IS CLEARLY
 UNTIMELY AND MUST BE DISMISSED.
 
    ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW IN
 THIS CASE BE, AND IT HEREBY IS, DISMISSED.  IN VIEW OF THE FACT THAT THE
 UNION APPEALED FROM AN UNREQUESTED ALLEGATION, THE DISMISSAL OF THE
 PETITION IS WITHOUT PREJUDICE.  THAT IS, IF THE MATTERS PROPOSED TO BE
 NEGOTIATED CONTINUE IN DISPUTE BETWEEN THE PARTIES, AN ALLEGATION MAY BE
 REQUESTED IN WRITING AND A PETITION FOR REVIEW DULY FILED BY THE UNION
 WITH THE AUTHORITY IN ACCORDANCE WITH SECTION 2424.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., AUGUST 12, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR