AFGE Council of Prison Locals, Local 1741 and Federal Correctional Institution Milan (Authority decision, August 6, 1986)

Final FLRA decision. The Authority dismisses the negotiability petition as untimely. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The federal prison agency disapproved provisions of a local supplemental bargaining agreement and mailed notice to the union's regional vice president. The union filed a negotiability petition on September 19, 1985, after the August 27 service. The Authority found that the regional vice president was the designated recipient under the national agreement and that the filing exceeded the applicable deadline, including the extra time for mail service. It dismissed the petition as untimely.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c)(2), 5 C.F.R. § 2424.3, 5 C.F.R. § 2429.22.
• Outcome: Negotiability petition dismissed as untimely.
• Key point: The filing clock ran from service on the regional vice president designated by the parties' agreement.

Full text (FLRA public release)

[ v23 p7 ]

23:0007(2)NG

The decision of the Authority follows:

23 FLRA No. 2

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
PRISONS LOCALS, LOCAL 1741
Union

and

DEPARTMENT OF JUSTICE,
FEDERAL PRISON SYSTEM,
FEDERAL CORRECTIONS
INSTITUTION,
MILAN, MICHIGAN
Agency

Case No. 0-NG-1179

ORDER DISMISSING PETITION FOR REVIEW

This case is before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Regulations on a petition for review of negotiability issues filed by the Union. For the reasons indicated below, it has been determined that the Union's petition for review was untimely filed and must be dismissed on that basis.

From the record before the Authority, it appears that the local parties forwarded a supplemental collective bargaining agreement to the designee of the Agency head for review and approval pursuant to section 7114(c((4) of the Statute. Article 9, Section d of the parties' National Controlling Agreement set forth the procedures for review of such local supplemental agreements. /1/ The designee of the Agency head disapproved a number of provisions of the local agreement and served a copy of that disapproval on the Regional Vice President of the Union on August 27, 1985, by certified mail. The Union filed its petition for review with the Authority on September 19, 1985. In its statement of position, the Agency contends that the Union's petition was untimely filed. In response, the Union asserts that under the Controlling National Agreement the Agency's disapproval should have been served on the National President of the Union rather than the Regional Vice President. The Union further asserts that its appeal was timely filed from the date a local Union official obtained a copy of the disapproval.

Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, 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. Further, section 2429.22 of the Authority's Regulations provides for five days to be added to the prescribed filing period when the allegation is served on the Union by mail. Moreover, it is now well-established that an agency head's disapproval of a locally negotiated collective bargaining agreement constitutes an allegation of nonnegotiability for purposes of appeal to the Authority. American Federation of Government Employees, Local 2142, AFL-CIO and Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 15 FLRA 98 (1984).

In this case, it is undisputed that the Agency's disapproval of the local agreement provisions was served on the Union's Regional Vice President by certified mail on August 27, 1985. Moreover, based on the clear language of Article 9, Section d of the National Controlling Agreement, the Regional Vice President was the Union official the Agency was required to serve and not the National President as the Union asserts. There is no reference to the National President in the pertinent agreement provision and the Union fails to establish any basis for its assertion. Therefore, under sections 2424.3 and 2429.22 of the Authority's Rules and Regulations, any appeal from the Agency's allegation of nonnegotiability had to be filed with the Authority no later than September 16, 1985, in order to be considered timely. Since the Union's petition for review was not filed until September 19, 1985, it is untimely and must be denied on that basis.

Accordingly, and apart from other considerations, the Union's petition for review is hereby dismissed.

For the Authority,

Issued, Washington, D.C., August 6, 1986.
Harold D. Kessler
Director of Case Management

--------------- FOOTNOTES$ ---------------

(1) Article 9, Section d provides, in part:

Section d. Once an agreement has been reached at the local level, it shall be reduced to writing and signed by the local parties within fifteen (15) calendar days from the conclusion of the negotiations. A copy of the signed, proposed agreement shall be forwarded to the Labor-Management Relations Section by local management and another copy shall be forwarded by the local Union to its Regional Vice President. These parties at the national level shall have thirty days, from the date that the proposed agreement was signed, to independently review the agreement and determine if the proposed agreement complies with the provisions of this Agreement and applicable laws and regulations.

The parties at the national level will independently notify their counterparts at the local level of the results of their reviews before the expiration of the thirty day time limit. The reviewing parties at the national level will serve on each other copies of their reviews as they are sent to the local level. At the end of the thirty-day review period, the local supplemental agreement will go into effect except for those provisions which have been found by either party to be in conflict with this Agreement, or applicable laws and regulations. Such conflicting provisions shall be stricken. (Emphasis added.)