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The decision of the Authority follows:
29 FLRA NO. 112
ENGINEERS AND SCIENTISTS OF CALIFORNIA, MEBA (AFL-CIO) Union and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Agency Case NO. 0-NG-1265
This case is before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and section 2424.1 of the Authority's Rules and Regulations on a petition for review of negotiability issues filed by the Union.
The Agency states that this appeal concerns provisions of a locally negotiated collective bargaining agreement which were disapproved by the Agency Head under section 7114(c) of the Statute in 1985. The Agency argues that the appeal must be dismissed as untimely under section 7117 of the Statute and section 2424.3 of our Regulations, because it was filed more than one year after the Agency served the disapprovals on the Union. The Union did not respond to these Agency contentions.
Based on the Agency's contentions, which are not disputed by the Union, we conclude the Union's petition is untimely and must be dismissed. Section 2424.3 of our Regulations provides:
2424.3 Time limits for filing.
The time limit for filing a petition for review (of negotiability issues) 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. . . .
In this regard, it is well established that the submission of an agreement to an agency head for approval or disapproval constitutes a request for an allegation of nonnegotiability under this rule. For example, National Federation Federal Employees, Local 1505 and Department of the Interior, National Park Service, Roosevelt-Vanderbilt National Historical Site, Hyde Park, New York, 7 FLRA 608 (1982). It is also well established that the 15-day time limit for such an appeal starts at the date the disapproval is served on the union. Id.
The fact that the parties engaged in further negotiations concerning the provisions, following their having been disapproved, did not render inoperative the earlier allegation of nonnegotiability. See 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), affirmed sub nom. American Federation of Government Employees, AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987).
The matters involved in the present appeal are substantially identical to the provisions the Agency disapproved under section 7114(c). Accordingly, we conclude that the appeal is untimely and must be dismissed.
For the Authority.
Issued, Washington, D.C., October 30, 1987.
Harold D. Kessler Director of Case Management