AFGE Local 547 and James A. Haley VA Medical Center (Authority decision, March 13, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. 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

AFGE Local 547 appealed a negotiability allegation from the James A. Haley VA Medical Center. The Authority found that the center had served its allegation by certified mail and that the union's petition arrived after the January 13 filing deadline. The appeal was late whether the deadline was calculated from mailing or receipt. The Authority dismissed the petition without reaching the proposal's substance.

Decision snapshot

• Authority: Fifteen-day negotiability appeal limit under 5 U.S.C. § 7117(c)(2) and 5 C.F.R. § 2424.3.
• Outcome: Petition dismissed as untimely.
• Key point: The Authority must determine whether a negotiability petition was filed within the statutory deadline.

Full text (FLRA public release)

[ v21 p50 ]

21:0050(11)NG

The decision of the Authority follows:

21 FLRA No. 11

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, ADMINISTRATIVE
COUNCIL OF LOCALS, LOCAL 547
Union

and

VETERANS ADMINISTRATION
JAMES A. HALEY MEDICAL CENTER
TAMPA, FLORIDA
Activity

Case No. 0-NG-1233

ORDER DISMISSING PETITION FOR REVIEW

This case is before the Authority pursuant to sections 7105(a)(2)(E) of the Federal Service Labor-Management Statute and section 2424.1 of the Authority's Rules and 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.

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.

As part of its petition for review, the Union submitted a copy of the Activity's allegation of nonnegotiability dated December 24, 1986, that was addressed to an Alan Pedigo of St. Petersburg, Florida. Thus, the Activity's allegation of nonnegotiability in this case apparently was served on the Union by mail on December 24, 1985. Therefore, under section 2424.3 of the Authority' s Rules and Regulations as well as sections 2429.21 and 2429.22 which also are applicable to computation of the time limit here involved, the Union's petition for review had to be filed, that is, received in the national office of the Authority, no later than the close of business on January 13, 1986. However, the petition for review dated January 16, 1986, was not filed until January 16, 1986. The parties were given telephonic notice of the timeliness issue and an opportunity to respond in writing.

The Activity has supplied the Authority with a copy of its return receipt-- or "green card"-- showing that Mr. Alan Pedigo of St. Petersburg, Florida accepted delivery on December 27, 1986. The Union has filed a written response arguing that: (1) the Activity sent its allegation dated December 24, 1985, by "regular U.S. Mail" and, therefore, was not in compliance with section 2429.27(b) of the Authority's Rules and Regulations; (2) the Union is willing to accept and acknowledge service by regular mail and be bound by the date received, which was December 27, 1986; and (3) the Authority is causing unnecessary litigation on procedural questions that have not been raised by the parties.

The Activity's return receipt for Mr. Pedigo shows that it was in compliance with section 2429.27(b) of the Authority's rules of procedure when it served its allegation of nonnegotiability on the Union by certified mail. Moreover, even assuming that the Authority had the discretion in this instance to late the timeliness of the Union's petition for review from December 27, 1986-- the date of receipt by the Union of the Activity's allegation-- sections 2424.3 and 2429.21 of the Rules and Regulations dictate that the due date for any petition for review of that allegation was January 13, 1986.

With respect to the Union' s assertion that the Authority is intervening on the side of dismissing appeals when no procedural question has been raised by either party, the timeliness of petitions for review filed with the Authority is not a determination that is optional at the Authority's discretion. Section 7117(c) (2) of the Statute state; in pertinent part: "The exclusive representative may, on or before the 15th day after the date on which the agency first makes the allegation ... institute an appeal ... by ... filing a petition with the Authority. ..." Clearly, the question whether the Authority has jurisdiction over a petition for review is dependent on its own determination of whether the petition was filed within the 15 days mandated by the Statute for such filings.

In sum, the Activity has demonstrated proper service of its allegation on the Union, and it is clear that the Union's petition was filed beyond the due date, regardless of whether the due date is calculated in terms of date of service by mail, or date received. Accordingly, as the Union's petition for review was untimely filed, and apart from other considerations, it is hereby dismissed.

For the Authority.

Issued, Washington, D.C., March 13, 1986
(s)---
Harold D. Kessler
Director of Case Management