21:0003(01)NG - AFGE, AFL-CIO, Local 1336 and Department of Health and Human Services, SSA -- 1986 FLRAdec AR

[ v21 p03 ]
The decision of the Authority follows:

 21 FLRA No. 1    





   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

   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.
                                      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