American Federation of Government Employees, Council of Prison Locals, Local 148 and Bureau of Prisons, Allenwood Federal Prison Camp (Authority decision, February 8, 1988)

Final FLRA decision. The Authority dismisses the union's negotiability petition as untimely. 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).

Plain-English summary

AFGE Local 148 asked the Bureau of Prisons for a written allegation that several shift assignment proposals were nonnegotiable. The agency gave its response to the union's chief steward on August 3, 1987, while the local vice president was on leave. The vice president received it two days later, and the union argued that its filing period began then. The Authority found that serving the chief steward was valid because the union had not expressly restricted who could receive the response. The union mailed its petition on August 20, two days after the 15-day deadline, so the Authority dismissed it without deciding the proposals.

Decision snapshot

• Authority: Fifteen-day negotiability filing period under 5 U.S.C. § 7117(c)(2).
• Outcome: Petition dismissed as untimely.
• Key point: Service on the chief steward started the filing period despite the vice president's absence.

Full text (FLRA public release)

[ v31 p12 ]
31:0012(3)NG

The decision of the Authority follows:

31 FLRA NO. 3
31 FLRA 12

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
PRISON LOCALS, LOCAL 148

Union

and

DEPARTMENT OF JUSTICE,
U.S BUREAU OF PRISONS,
ALLENWOOD FEDERAL PRISON CAMP

Activity

Case No. 0-NG-1446

ORDER DISMISSING PETITION FOR REVIEW

On August 20, 1987, the American Federation of Government Employees, Local 148 (the Union) filed a petition for review of negotiability issues. The U.S. Department of Justice (the Agency) moved that the Authority dismiss the petition as untimely. The Agency's motion is granted. The Union's petition is dismissed.

The Agency and Union met concerning several proposals on shift assignments. On August 3, 1987, the Union, through its Local Vice President, served on the Agency a request for the Agency's written allegation that the duty to bargain did not extend to these proposals. The Agency responded the same day when it served its response on the Local Chief Steward. The Chief Steward gave the Vice President the Agency's response on August 5, 1987. The Vice President was on annual leave during the week of August 2, 1987, except on the two occasions described above. The Union's petition for review, dated August 18, 1987, was filed with the Authority -- deposited in the mail as indicated by the postmark -- on August 20, 1987.

The time limit for filing a petition for review of negotiability issues is 15 days after the date the agency's allegation of nonnegotiability is served on the exclusive representative. 5 U.S.C. 7117(c)(2) and 5 C.F.R. 2424.3 (1987). The date of service is the day when the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. 2429.27(d) (1987).

The Agency argues that service on the Chief Steward on August 3, 1987 constituted service on the exclusive representative. If so, the Union's petition would be untimely since it was not filed until 17 days later. The Union counters that service was not complete until the Vice President received the Agency's allegation of nonnegotiability on August 5, 1987. It maintains that the Union's request for the allegation clearly asked that the Vice President be served. The Union submitted an affidavit from the Vice President stating that he is the "designated officer to receive general correspondence for the Local . . . ." The Agency submitted an affidavit from the Personnel Officer which stated that the Vice President had posted a notice on the Union bulletin board stating that the Chief Steward would be acting in the official capacity of the Vice President while he was on leave.

The Union's request to the Agency was signed by the Vice President and contained the statement, "I request management's final position . . . ." This statement is not an explicit designation of the officials to whom the Agency may give a response. The designation of the Vice President as the officer to receive general correspondence also does not designate who may be served when the Vice President is on leave. In National Treasury Employees Union and Department of the Treasury, 21 FLRA 1051, 1051 (1986) the Authority held that service of the agency's allegation of nonnegotiability on a receptionist at a Union office when most union officials were out of town satisfied service requirements in a negotiability dispute.

Here, the Personnel Director served the Chief Steward with the Agency's allegation when the Vice President was on leave. The Chief Steward was the other member of the Union's negotiating team on the issues in dispute. Under these circumstances, in the absence of an explicit restriction on the Union official who could be served with the allegation, the Agency's August 3, 1987 service on the Chief Steward constituted service on the exclusive representative. The Union's petition for review had to be postmarked by August 18, 1987 to be timely.

Accordingly, the petition for review in this case is dismissed.

For the Authority.

Issued, Washington, D.C.,February 8, 1988.

Jacqueline R. Bradley
Executive Director