AFSCME Local 2478 and U.S. Commission on Civil Rights (Authority decision, September 13, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union petitioned for review of an agency allegation that a proposal was not negotiable. The Authority could not determine whether the petition met the filing deadline because neither party showed that the agency had properly served its allegation. It dismissed the petition without prejudice. The union could seek a properly served allegation and file a new petition if the dispute continued.

Decision snapshot

• Authority: Negotiability petition filing rule under 5 U.S.C. § 7117(c)(2).
• Outcome: Petition dismissed without prejudice; negotiability merits not reached.
• Key point: Proof of proper service was needed to determine when the filing period began.

Full text (FLRA public release)

[ v20 p164 ]

20:0164(18)NG

The decision of the Authority follows:

20 FLRA No. 18

AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, LOCAL 2478
Union

and

U.S. COMMISSION ON CIVIL RIGHTS
Agency

Case No. 0-NG-1140

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 Statute and section 2424.1 of the Authority's Rules and Regulations on a petition for review of negotiability issues filed by the Union on June 5, 1985. For the reasons indicated below, it has been determined that the Union's petition for review must be dismissed.

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 the date the agency's allegation that the duty to bargain does not extend to the matter proposed to be bargained is served on the exclusive representative. In accordance with section 2429.27(b) of the Authority's regulations, service of any document or paper, including documents and papers served by one party on another, shall be made by certified mail or in person; that section of the rules further provides that a return post office receipt or other written receipt executed by the party or person served shall be proof of service. Additionally, section 2429.27(d) provides that the date of the service shall be the day when the matter served is deposited in the U.S. mail or is delivered in person.

In this case, the agency's allegation of nonnegotiability is dated May 14, 1985, and the agency asserts that the allegation was delivered in person to the Union's president on that date. Accordingly, the agency maintains that the Union's petition for review, which was filed with the Authority on June 5, 1985, was untimely under the Authority's rules. The Union contends that the petition was timely filed inasmuch as the agency's allegation was served by interoffice mail and not delivered until "on or about May 22, 1985."

The Authority finds that the agency has failed to satisfy the Authority's regulatory requirements with respect to service of its allegation of nonnegotiability. In this regard, the agency's representative states that the agency's chief negotiator and its personnel officer "are prepared to testify" that the allegation was delivered in person to the Union's president on May 14, 1985. Such testimony, however, would not constitute proof of service since section 2429.27 of our rules provides that when personal service is made a "written receipt executed by the party or person served shall be proof of service." The agency neither offers such proof nor asserts that such exists.

Similarly, the Union offers no substantiation for its claim that the allegation was served by interoffice mail. Even if such substantiation exists, however, it would indicate only that the allegation was not served as required by section 2429.27(b), that is, it was not delivered in person or by certified mail. Therefore, if the allegation was served by interoffice mail, the Union was not required to timely file a petition with the Authority in order to preserve its rights to contest the agency's allegation of nonnegotiability because the allegation was not properly served on it. Moreover, unlike the situation wherein a Union may petition the Authority for review of negotiability issues in connection with an unrequested allegation of nonnegotiability as long as the petition is timely filed, /1/ in the instant case there is no proof of proper service to enable the Authority to make the necessary timeliness determination.

Accordingly, since neither party has demonstrated that the agency's allegation of nonnegotiability was served on the Union in accordance with our regulations, the Union's petition for review in this case is hereby dismissed. /2/

For the Authority.

Issued, Washington, D.C., September 13, 1985

(s) HAROLD D. KESSLER
Harold D. Kessler
Managing Director for Case
Processing

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

/1/ See, e.g., American Federation of Government Employees, AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA No. 96 at n.1 (1984).

/2/ This dismissal is without prejudice. That is, if the matter proposed to be negotiated continues in dispute between the parties, an allegation may be requested in writing and a petition for review duly filed by the Union with the Authority in accordance with sections 2424.3 and 2429.27 of the Authority's rules and regulations.