[ v21 p03 ]
The decision of the Authority follows:
21 FLRA No. 1 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1336 Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency 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. On August 30, 1985, the Union submitted proposals regarding the Employee Assessment Plan (EAP) to the Agency in preparation for upcoming negotiations. By memorandum of September 16, 1985, the Agency notified the Union that most of its proposals appeared to be nonnegotiable. In an attachment included with that memorandum, the Agency indicated each proposal which it considered to be nonnegotiable and the reasons therefore. After the parties resumed negotiations on September 19, 1985, the Union agreed to set aside the proposals which the Agency stated were nonnegotiable and complete negotiations on other issues. On September 19, 1985, the parties entered into a Memorandum of Understanding whereby the parties agreed to a revised EAP. That agreement provided that negotiations could be reopened to resolve those areas regarding the EAP that still remained in dispute between the parties. On October 3, 1985, the Union requested a written declaration of nonnegotiability from the Agency in respect to its disputed proposals. On October 4, 1985, the Agency sent a memorandum to the Union, requesting that the Union refer to the September 16th memorandum, and more specifically, to the attachment thereto which described the proposals that the Agency had previously indicated were nonnegotiable. On October 7, 1985, the Union requested clarification of the October 3, 1985, statement of nonnegotiability, stating that the September 16th Memorandum was defective under section 2424.1 of the Authority's Rules and Regulations. In a memorandum dated October 28, 1985, the Agency reaffirmed its position previously stated in the October 4, 1985, letter. The Union then filed the instant negotiability appeal on November 7, 1985, or within 15 days from the date of service of the Agency' s letter of October 28, 1985. It is well established that a petition for review must be filed within 15 days from the date of service on the Union of an Agency nonnegotiability allegation. See, e.g., National Treasury Employees Union, Chapter 226 and U.S. Department of Agriculture, Food and Nutrition Service, 15 FLRA 97 (1984) While the Union' s November 7, 1985, petition was filed within 15 days from the date of service of the Agency's letter of October 28, 1985, the record indicates that the Agency's letter merely reaffirmed its earlier allegation of October 4, 1985. /1/ 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 2303 and Metropolitan Washington Airports, Federal Aviation Administration, U. S. Department of Transportation, 17 FLRA No. 8 (1985). In this case, the Union provides no indication that it effected any changes in the contested proposals between October 4 and 28, 1985. Accordingly, the Union' s petition seeks review of the October 4 allegation. Since, as noted previously, the Union' s petition was not filed with the Authority until November 7, 1985, it is outside the time limits set forth in section 2424.3 of the Authority's regulations and, is, therefore, untimely. Accordingly, as the Union' s petition for review was untimely filed, and apart from other considerations, it is hereby dismissed. /2/ For the Authority Issued, Washington, D.C., January 22, 1986. (s)--- Harold D. Kessler Director of Case Management /1/ The Union's contention that the Agency's October 4, 1985 letter did not constitute an allegation of nonnegotiability since it referred to the September 16th memorandum that was defective must be rejected. Here, in response to a written request by the Union for an allegation of nonnegotiability, the Agency stated in its October 4, 1985 letter that the proposals that it deemed to be nonnegotiable were outlined in the attachment to the September 16th memorandum. Thus, the record clearly shows that the Agency's October 4th letter set forth its statement of the nonnegotiability of the disputed proposals by referring to the attachment to the September 16th memorandum. /2/ In view of the disposition of the subject negotiability appeal, it is unnecessary for the Authority to rule on the Agency' motion to dismiss.