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28 FLRA NO. 8

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 491

                    Union

      and

VETERANS ADMINISTRATION
MEDICAL CENTER, BATH, NEW YORK

                    Agency

Case No. O-NG-1375

ORDER DISMISSING PETITION FOR REVIEW

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute). For the reasons stated below, it has been determined that the Union's petition for review was untimely filed and must be dismissed on that basis.

I. Background

On April 3, 1986, the parties settled unfair labor practice (ULP) charges in Case Nos. 1-CA-60160 and 60210. Under the settlement, the Union withdrew the ULP charges and the parties agreed to negotiate concerning impact and implementation. On May 6, 1986, the Agency rejected the Union's proposals involved in this appeal as not within the duty to bargain. There is nothing in the record to indicate that the Union requested the May 6, 1986 Agency memorandum as an allegation of nonnegotiability. Thereafter, the Union filed a ULP charge, Case No. 1-CA-70026. On December 3, 1986, the parties executed a settlement agreement wherein the Agency contended that the Union proposals concerning work schedules were nonnegotiable. The parties further agreed that the Union would have fifteen days from the date of the settlement agreement to file a negotiability appeal with the Authority. Thus, the Union had until the close of business December 18, 1986 to file a petition for review of the Agency's allegation of nonnegotiablity. However, the Union's negotiability appeal, Case No. O-NG-1354, was not filed with the Authority until December 22, 1986. upon notification by Authority staff that its negotiability appeal was untimely filed, the Union by letter dated February 6, 1987, requested permission to withdraw Case No. O-NG-1354. The request was granted. On February 20, 1987, at the Union's request, the Agency again declared the same proposals concerning work schedules to be nonnegotiable. On March 4, 1987, the Union filed this negotiability appeal contesting the Agency's allegation of nonnegotiability.

II. Analysis and Conclusions

It is concluded that the union's petition for review in this case is not timely filed. The Agency's May 6, 1986 determination of nonnegotiability was not a valid allegation of nonnegotiability from which the Union was required to file a negotiability appeal because the record does not indicate that it was in response to an Union request for an allegation of nonnegotiability. See Production Maintenance, and Public Employees Union, Local No. 1276, Affiliated with LIUNA, AFL - CIO and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 9 FLRA 919, 920 (1982). However, the December 3, 1986 settlement agreement executed by the parties did constitute a valid Agency allegation of nonnegotiability of Union proposals concerning work schedules and a valid union request for that allegation. See American Federation of Government Employees, AFL - CIO, National GSA Council and General Services Administration, 20 FLRA 448 (1985). Thus, as stated above, the Union had until December 18, 1986 to file a timely appeal of that allegation. 1 The appeal of that allegation was not received until December 22, 1986. The Union claims to have mailed the appeal on December 16 and contends that it was delayed by Christmas mail. Notwithstanding this possibility, as the time limit for filing a petition for review of negotiability issue is jurisdictional, it may not be extended or waived by the Authority. 2 Accordingly, the December 22, 1986 filing  was clearly untimely and no basis exists for revocation of the approval of the withdraw of that appeal.

With respect to the instant case, the record shows that the proposals here on appeal are the same proposals that the Agency previously held to be nonnegotiable in the settlement agreement executed by the parties on December 3, 1986. The Authority has held 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, for example, National Treasury Employees union, Chapter 226 and U.S. Department of Agriculture, Food and Nutrition Service, 15 FLRA 97 (1984). The Authority has he 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 17 (1985), enforced sub nom. American Federation of Government Employees, AFL - CIO, Local 2303 v. Federal Labor Relations Authority, 815 F.2d 718 (D.C. Cir. 1987).

In this case, the record establishes that there were no changes in the contested proposals between December 31 1986 and February 20, 1987. Accordingly, the Union's petition seeks review of the December 3, 1986 allegation of nonnegotiability. Since, as previously noted, the Union's petition was not filed with the Authority until March 4, 1987, it is outside the time limits set forth in section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Regulations and is, therefore, untimely.

ORDER

The Union's petition for review was untimely filed and, apart from any other considerations, is dismissed for that reason,

For the Authority.

Issued, Washington, D.C. July 16, 1987.

Harold D. Kessler
Director, Case Management

FOOTNOTES

Footnote 1 Section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations provide that the time limit for filing a petition for review of negotiability issues is 15 days after service on the Union of the Agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained.

Footnote 2 Section 2429.23(d) of the Authority's rules of procedure provides that the time limit established in section 7117(c)(2) of the Statute may not be extended or waived by the Authority.

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