34:0721(125)NG - - NFFE Local 422 and DOI, Bureau of Indian Affairs, Colorado River Agency - - 1990 FLRAdec NG - - v34 p721

[ v34 p721 ]
The decision of the Authority follows:

34 FLRA No. 125










(33 FLRA 853)


February 2, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion for reconsideration filed by the National Federation of Federal Employees, Local 422 (the Union). The Union seeks reconsideration of the Authority's Order of March 17, 1989, in 33 FLRA 853 dismissing the Union's petition for review as being untimely filed. The U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency (the Agency) did not file an opposition to the Union's motion for reconsideration.

For the reasons discussed below, we deny the motion.

II. Background

The Agency and the Union were parties to a proceeding before the Federal Service Impasses Panel (the Panel). In response to a request from the Panel for a written statement of position regarding the disputed proposals, the Agency notified the Panel that it considered the Union's proposals to be nonnegotiable. On October 3, 1988, the Agency served a copy of its statement of nonnegotiability on the Union. The Union states that it did not receive a copy of the Agency's allegation of nonnegotiability until November 7, 1988. The Union filed a petition for review of negotiability issues with the Authority on December 29, 1988.

The Union's petition for review was dismissed in an order dated March 17, 1989, and signed by the Acting Executive Director of the Authority. The order stated that because the Union did not request the Agency's allegation of nonnegotiability, the allegation constituted an unrequested allegation of nonnegotiability. The order noted that under the Authority's Regulations, a union may file a petition for review of an unrequested allegation of nonnegotiability, but if it does so the petition must be filed within 15 days after service of the allegation. Because the petition in this case was filed after that time period, the petition was found to be untimely filed.

III. Motion for Reconsideration

The Union contends that the order dismissing the petition for review "is in direct conflict with Authority precedent and provides no explanation why previous decisions [should] not be followed." Motion for Reconsideration (Motion) at 1. In support of this contention, the Union cites American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512, 513-14 (1986), in which the Authority held that a petition for review was timely filed because the agency failed to respond to a written request for a written allegation of nonnegotiability.

The Union states that as required by Article 22, Section 7 of its collective bargaining agreement, it submitted a letter to the Agency on November 7, 1988, "clarifying the intent of its proposals over which the Agency had raised negotiability objections. . . . The Agency never replied to this letter." Motion at 2. Article 22, Section 7 of the parties' agreement states that "after the Union has provided [the Agency] in writing with clarification of the intent of its proposal(s) along with a request for a negotiability determination, the [Agency] will provide the Union with a written statement of it[s] position of non-negotiability[.]" Motion, Attachment 1.

The Union also argues that its motion should be granted because the Authority's Acting Executive Director, who signed the order dismissing the petition for review, had no delegation of authority to act on the Union's petition for review. The Union contends that even if the Acting Executive Director had such authority, the decision in this case should be made by the Members of the Authority because the decision departs from long-standing precedent. Motion at 4.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established "extraordinary circumstances" within the meaning of section 2429.17.

A. The Order Is Consistent With Precedent

In Naval Weapons Station, the Authority discussed the issue of whether a union is required to file a petition for review of negotiability issues in response to an unrequested allegation of nonnegotiability. The Authority stated:

[A] union is not required to file a petition for review in response to an allegation of nonnegotiability made by an agency in the context of a [Panel] proceeding. Rather, the union may ignore such unsolicited allegation and instead elect to request in writing a written allegation of nonnegotiability from the [a]gency. . . . If the union elects to request an allegation from the agency, the union must file its petition for review of such allegation within the time limits established in section 2424.3[.]

24 FLRA at 513 (citation omitted). If a union elects to file an appeal from an unrequested allegation of nonnegotiability, "it must file its appeal within the time limit prescribed in th