[ v15 p98 ]
The decision of the Authority follows:
15 FLRA No. 20 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2142, AFL-CIO Union and DEPARTMENT OF THE ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS Activity Case No. O-NG-923 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 (5 U.S.C. 7101 et seq.) and section 2424.1 of the Authority's Rules and Regulations (5 C.F.R. 2424.1) on a petition for review of negotiability issues filed by the Union. For the reasons indicated below, the Union's petition must be dismissed. From the record before the Authority, it appears that on July 7, 1983, the parties forwarded a locally executed collective bargaining agreement to the agency head for review and approval pursuant to section 7114(c) of the Statute. During such review, the agency head disapproved two provisions in the negotiated agreement by letter dated August 5, 1983. Apparently, the parties met and continued bargaining in an attempt to find alternative language for the proposals which were declared nonnegotiable. The parties requested assistance from the Federal Mediation and Conciliation Service but were unable to reach agreement and resolve the dispute and reached impasse on October 21, 1983. The Union did not request another allegation from the agency but sought the Authority's determination as to whether the disputed proposals were within the parties' duty to bargain. In its statement of position, the Agency asserts that the Union's petition for review should be dismissed as untimely. In support of its assertion the Agency argues that since the only written allegation of nonnegotiability was the August 5, 1983, disapproval, the time limit for filing a petition for review began to run on that date. The Authority agrees. 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 . . . . It is well-established that the agency head's disapproval of a provision in a locally executed agreement pursuant to a 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, Local 1052 and United States Army Engineer Center, Fort Belvoir, Virginia, 6 FLRA 460 (1981). Since the agency head's disapproval in this case was served on the Union by mail on August 5, 1983, under section 2424.3 of the Authority's Rules and Regulations as well as section 2429.22 which is also applicable to the computation of the time limit here involved, any appeal from that allegation had to be filed with the Authority no later than August 29, 1983, in order to be considered timely. Since the Union's petition for review was not filed until November 7, 1983, it is clearly untimely and must be dismissed on that basis. Accordingly, and apart from other considerations, IT IS ORDERED that the Union's petition for review in this case be, and it hereby is, dismissed. /1/ Issued, Washington, D.C., June 13, 1984 Harold Kessler, Director, Case Management --------------- FOOTNOTES$ --------------- /1/ This dismissal 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.