Association of Civilian Technicians and Division of Military and Naval Affairs, State of New York (Authority decision, May 12, 1988)

Final FLRA decision. The Authority dismisses the union's petition for review 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

The Association of Civilian Technicians challenged a New York military agency's allegation that certain proposals were outside its duty to bargain. The agency delivered the allegation to the union on April 11, 1988, starting a 15-day filing period. The union mailed its petition to an Authority regional office, and the Authority treated it as filed at the national office on April 27. That was one day after the deadline. The Authority dismissed the petition without deciding whether the proposals were negotiable.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c)(2); 5 C.F.R. §§ 2424.3 and 2429.21(b).
• Outcome: Petition dismissed as untimely.
• Key point: A negotiability petition must reach the Authority's national office within the applicable filing period.

Full text (FLRA public release)

[ v32 p96 ]

32:0096(13)NG

The decision of the Authority follows:

32 FLRA NO. 13
32 FLRA 96

Date: 12 MAY 1988

THE ASSOCIATION OF CIVILIAN
TECHNICIANS

Union

and

THE DIVISION OF MILITARY AND
NAVAL AFFAIRS, THE STATE OF
NEW YORK

Activity

Case No. 0-NG-1548

ORDER

The Union has filed with the Authority a petition for review of the Activity's allegation of nonnegotiability concerning certain negotiability issues pursuant to 5 U.S.C. 7117(c) and 5 C.F.R. 2424.1. The Union's petition is untimely and must be dismissed.

The Activity's allegation reads in pertinent part: "Management regards these proposals as non-negotiable. Submitted to Mr. Lucia (ACT) by Col Carpenter w/ Col Amnerall present on 11 APR 88 at 1:40 pm." The Union's petition: (1) is undated; (2) was misdirected to Region 1 of the Federal Labor Relations Authority in Boston, Massachusetts in an envelope postmarked April 21, 1988; 1 (3) was forwarded to the Authority by the Boston Region by letter dated April 27, 1988, which was received May 2, 1988; and (4) was filed with the Authority on April 27, 1988, by operation of 5 C.F.R. 2429.21(b), which provides that if no postmark date is evident on the mailing, it is presumed to have been mailed 5 days prior to receipt. 2

The time limit for filing a petition for review of negotiability issues is 15 days after the date the union is served with the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained. 5 U.S.C. 7117(c)(2) and 5 C.F.R. 2424.3. 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). The Activity's allegation is dated April 11, 1988, and, indicates that it was served by hand on the Union on that same day. Therefore, in order to be timely filed, the Union's petition for review of the Activity's allegation had to be either mailed to the national office of the Authority in Washington, D.C., and postmarked by the U.S. Postal Service no later than April 26, 1988, or if filed in person, received at the Authority's national office no later than the close of business that same date. 5 C.F.R. 2429.21(b), as amended. 3 However, the Union's petition was filed on April 27, 1988.

Accordingly, as the Union's petition for review was untimely filed, it is dismissed.

For the Authority.

Issued, Washington, D.C., May 12, 1988.

Jacqueline R. Bradley
Executive Director

FOOTNOTES

Footnote 1 It is well established that a petition for review of an agency's allegation of nonnegotiability cannot be filed at a Regional Office. Since the inception of the Authority in 1979, applicable regulations have required that any documents filed or required to be filed with the Authority must be filed at the Authority's national office. 5 C.F.R. 2429.24(a).

Footnote 2 A discussion of the method for determining the date of filing in the absence of a postmark is found in Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987).

Footnote 3 51 Fed. Reg. 45751 (1986). The amendments to section 2429.21 of 5 C.F.R. are applicable to petitions for review pending or filed with the Authority on or after December 31, 1986.