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15:0098(20)NG - AFGE Local 2142 and Army, Corpus Christi Army Depot, Corpus Christi, TX -- 1984 FLRAdec NG

[ v15 p98 ]
The decision of the Authority follows:

 15 FLRA No. 20
                                            Case No. O-NG-923
    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
    Section 2424.3 of the Authority's Rules and Regulations, which
 implements section 7117(c)(2) of the Statute, provides, in pertinent
          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
 --------------- 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.