10:0562(98)NG - NTEU Chapter 66 and IRS, Kansas City, MO -- 1982 FLRAdec NG

 10 FLRA No. 98
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 66
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE,
 KANSAS CITY, MISSOURI
 (Activity)
 
                                            Case No. O-NG-439
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This matter is before the Federal Labor Relations 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 reason indicated below, it has been determined that
 the union's petition for review was untimely filed and therefore must be
 dismissed.
 
    From the record before the Authority, it appears that during
 negotiations concerning a proposed staff sharing arrangement between two
 offices, the union submitted a number of proposals to the activity for
 consideration.  In response to the union's proposals, the activity, by
 memorandum dated January 29, 1981, which apparently was served upon the
 union in person on February 3, 1981, alleged that the proposals were
 nonnegotiable.  The union's petition for review of the activity's
 allegations of nonnegotiability was filed with the Authority on February
 23, 1981.
 
    In its statement of position, the activity argues, among other
 things, that the union's petition for review was filed beyond the time
 limit prescribed in section 2424.3 of the Authority's Rules and
 Regulations and should be dismissed as untimely.  In that regard, the
 activity alleges that the petition for review was filed more than 15
 days after the union received the activity's written allegation of
 nonnegotiability.
 
    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.  . . .
 
    As set forth above, the activity's allegation /1/ was dated January
 29, 1981, and appears to have been served in person upon the union on
 February 3, 1981.  Therefore, under section 2424.3 of the Rules and
 Regulations, any appeal from that allegation had to be filed with the
 Authority no later than the close of business on February 18, 1981, in
 order to be considered timely.  Since the union's appeal was not filed
 until February 23, 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.  /2/ For the Authority.
 Issued, Washington, D.C., December 3, 1982
                                       James J. Shepard, Executive
                                       Director
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The union did not request the allegation in writing from the
 activity, but, as indicated above, merely submitted proposals for
 negotiation.  While the union did not exercise its right to initiate the
 formal negotiability appeal process under section 2424.3 of the
 Authority's Rules and Regulations by requesting in writing that the
 activity serve it with a responsive allegation, the union could, as it
 did here, properly consider the unrequested written contentions of the
 activity as an allegation for purpose of appeal to the Authority and
 file such an appeal pursuant to section 2424.3, subject, of course, to
 the time limit prescribed by that provision.  See, e.g., International
 Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of
 the Treasury, Bureau of Engraving and Printing, 10 FLRA No. 39 (1982);
 and American Federation of Government Employees, AFL-CIO, Local 1858 and
 Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
 Alabama, 10 FLRA No. 85 (1982).
 
 
    /2/ This dismissal is without prejudice.  That is, if the matter
 proposed to be negotiated continues 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 theAuthority's Rules and Regulations.