50:0541(74)NG - - NFFE, Local 422 and Interior, Bureau of Indian Affairs, Colorado River Agency, Parker, AZ - - 1995 FLRAdec NG - - v50 p541
[ v50 p541 ]
The decision of the Authority follows:
50 FLRA No. 74
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
COLORADO RIVER AGENCY
ORDER DISMISSING PETITION FOR REVIEW
June 23, 1995
The Union has filed a petition for review of negotiability issues in the above-captioned case. The Agency has filed an untimely statement of position which has not been considered.(*)On May 24, 1995, the Authority directed the Union to show cause why its petition for review should not be dismissed as untimely filed. The Union filed a timely response to the Authority's Order. For the reasons set out below, the Union's petition for review must be dismissed.
A petition for review of negotiability issues must be filed with the Authority within 15 days after service on the Union of the Agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. The date of service is the date the allegation is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).
The record shows that on June 14, 1994, the Union submitted proposals to the Agency for negotiation. On June 30, 1994, the Union requested the assistance of the Federal Service Impasses Panel (Panel) to resolve the parties' impasse. On July 26, 1994, in response the Panel's request for its position on the parties' impasse, the Agency declared the Union's proposals to be nonnegotiable. The Union did not file a timely appeal of the Agency's allegation, but waited for a decision from the Panel. On December 15, 1994, the Panel declined to assert jurisdiction over the matter and the Union filed a petition for review with the Authority on December 22, 1994, docketed as Case Number 0-NG-2221. On February 2, 1995, at 50 FLRA 121 (1995), the Authority dismissed the Union's petition for review in Case Number 0-NG-2221 because it was untimely filed.
On February 9, 1995, the Union resubmitted its proposals to the Agency and requested the Agency's written allegation of nonnegotiability. In the absence of a response from the Agency to the Union's request, the Union filed its petition for review in the above-captioned case with the Authority on February 24, 1995. Thereafter, the Agency filed an untimely statement of position on the Union's petition for review.
The Union does not dispute that its February 9, 1995, proposals are identical to the proposals which were submitted to the Agency on June 14, 1994. Where a petition for review concerns a dispute as to a proposal that is not substantively changed from one that had previously been alleged to be nonnegotiable by the Agency, the effect of the petition is to seek review of the previous allegation. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 991-92 (1987); National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 973 (1991).
The Union states that the Authority dismissed its petition for review in 0-NG-2221 "because of early submission [of its petition for review]. The Agency had not given the Union a written allegation of nonnegotiability, nor had the Union requested the Agency's written allegation." Response to show cause at 1. The Union asserts that based on the foregoing, "on February 9, 1995, [the Union] requested the Agency's written allegation based on the same proposals. The Union is not seeking review of a previous allegation, as the Agency has not responded to our request even at this late date." Response to show cause at 1.
The Union's recitation of the facts is in error. In response to the Panel's request for the Agency's position on the parties' impasse, the Agency declared the Union's proposals to be nonnegotiable on July 26, 1994. The Agency's July 26, 1994, allegation was "unsolicited" because: (1) the Union did not request it; and (2) the Panel's request for the Agency's position was not a solicitation for an allegation of nonnegotiability.
As the Authority explained in its dismissal of the Union's petition for review in Case No. 0-NG-2221, if a Union receives an unsolicited allegation of nonnegotiability, including one made by an Agency during proceedings before the Panel, the Union has two options for filing a timely petition for review: (1) respond to the unsolicited allegation of nonnegotiability and timely file a petition for review with the Authority; or (2) ignore the unsolicited allegation of nonnegotiability made before the Panel, make a written request for a written allegation of nonnegotiability from the agency, and timely file its petition for review of the solicited allegation with the Authority. 50 FLRA at 121-122. The Union selected option "(1)" but, measured from the Agency's July 26, 1994, unsolicited allegation, the Union failed to timely file its petition for review with the Authority. Thus, it cannot be accurately stated that the Authority dismissed the Union's petition for review in Case No. 0-NG-2221 "because of early submission [of its petition for review]."
The Union's petition for review in the above-captioned case concerns disputed proposals that have not been changed from those that have previously been alleged to be nonnegotiable by the Agency. Thus, the Union's petition for review in this case seeks a second review of the Agency's July 26, 1994, unsolicited allegation of nonnegotiability.
This second petition for review of the Agency's July 26, 1994, unsolicited allegation of nonnegotiability was not filed with the Authority within the prescribed time limit. As the time limit for filing a petition for review may not be extended or waived by th