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7 FLRA NO. 56

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3790

                    (Union)

     and

THE DEPARTMENT OF INTERIOR,
BUREAU OF LAND MANAGEMENT

                    (Activity)

Case No. 0-NG-473

 

ORDER DISMISSING NEGOTIABILITY APPEAL

This case is before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (5 U.S.C. 7105 et seq.) and section 2424.1 of the Authority's rules and regulations (5 C.F.R. 2424.1 (1981)), on a petition for review of negotiability issues filed by the union on April 30, 1981. For the reasons indicated below, it has been determined that the union's petition for review was untimely filed and must therefore be dismissed.

From the record before the Authority, it appears that during the course of negotiations between the parties, a dispute arose concerning the negotiability of a number of union proposals on the subject of flexitime. On February 6, 1981, the parties entered into a Memorandum of Understanding, which provided:

This memo of understanding between the Richfield, Utah District Office and AFGE Local 3790 pertains to the negotiability of Flexitime. Management has declared Flexitime as non-negotiable under the provisions of paragraph 7106(b)(1) of the CSRA of 1978.

The Union will request that the FLRA decide the negotiability of this subject. Upon receipt of a decision in the matter, the parties will abide by the decision. If the FLRA decides that the matter is negotiable, management agrees to [ v6 p393 ] negotiate Flexitime with the Union, within three weeks from the receipt of notification. An extension of time may be granted if mutually agreed by the parties. If the FLRA decides the matter is nonnegotiable, no further action will be taken concerning this subject.

The union subsequently, by letter dated April 6, 1981, requested a detailed statement from the activity of the activity's reasons for declaring that the proposals were outside the duty to bargain. The activity responded by letter of April 22, 1981, reiterating the declaration of nonnegotiability in the parties' February 6, 1981, Memorandum of Understanding, and providing a detailed summary of the basis for its position as to each of the proposals involved. The union then filed the instant petition with the Authority.

Section 2424.3 of the Authority's regulations provides, in pertinent part:

The time limit for filing a petition for review 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. The exclusive representative shall request such allegation in writing and the agency shall make the allegation in writing and serve a copy on the representative. . . .

In this case, the activity's written allegation was set forth in the parties' Memorandum of Understanding of February 6, 1981, and the time limit for filing a petition for review of the negotiability issues involved began to run from that date.

The union contends that its letter of April 6, 1981, constituted its request for an allegation within the meaning of section 2424.3 of the Authority's rules of procedure, and that the agency's response of April 22,1981, constituted the allegation that triggered the time limits under that provision for filing the instant appeal.

The union has misconstrued the Authority's rules of procedure in this matter. While an allegation that starts the running of the time limits for filing a negotiability appeal in most cases is a written allegation that is rendered in response to a separate written request from a union, a separate written request, identified as such by the union, is not a prerequisite to the commencement of the time limits for filing an appeal in all instances. [ v6 p394 ]

Thus, for example, when local parties forward a signed collective bargaining agreement to the agency head for review pursuant to section 7114(c) of the Statute, a separate written request for an allegation is not necessary. Such forwarding and agency head disapproval of one or more provisions of the local parties' agreement constitute circumstances which conform to the conditions for review of a negotiability issue that will start the running of the time limits for filing a petition for review. See, e.g., American Federation of Government Employees, AFL - CIO, Local 2 and Department of the Army, U.S. Army Audio - Visual Communications Center, Washington, D.C., 6 FLRA No. 71 (1981).

In this case, the parties' Memorandum of Understanding of February 6, 1981, amounts to a written request by the union for an allegation and a simultaneous written response by the activity alleging the matter proposed to be nonnegotiable. The activity's allegation in the Memorandum of Understanding cannot be said to have been unsolicited and must be considered to start the running of the time limits for filing an appeal with the Authority.

Thus, while the union's petition filed with the Authority on April 30, 1981, was filed within 15 days from the date of service of the activity's letter of April 22, 1981, that letter was, in essence, a restatement of the earlier allegation, albeit in greater detail. It is therefore clear that the union's petition in this case seeks review of the activity's allegation of February 6, 1981. As already indicated the union's petition was not filed with the Authority until April 30, 1981, or more than 2-1/2 months later. Thus, the union's petition was untimely filed under the Authority's rules of procedure.

Accordingly, as the union's petition for review was untimely filed, IT IS HEREBY ORDERED that the petition be, and it hereby is, dismissed.

For the Authority.

Issued, Washington, D.C., December 18, 1981

James J. Shepard, Executive Director [ v6 p395 ]

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