Federal Firefighters Association, Local 58 and Department of the Air Force, Otis Air National Guard, Massachusetts (Authority decision, October 19, 1988)

Final FLRA decision. This order dismisses the union's negotiability petition as untimely without deciding whether the disputed agreement provisions are negotiable. An aggrieved person may seek judicial review of a reviewable final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a); filing does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

During negotiations for an initial agreement, the Otis Air National Guard served two written allegations of nonnegotiability on the acting president of Federal Firefighters Association Local 58. The union petitioned for Authority review more than 15 days after each service date. It argued that time should run from when its executive director later received the allegations, claiming that he was the designated recipient under the parties' ground rules. The Authority found no explicit restriction in those rules requiring service on that official. Service on the acting president therefore started the filing periods, and the Authority dismissed the petition as late.

Decision snapshot

• Authority: Fifteen-day petition period under 5 U.S.C. § 7117(c)(2) and 5 C.F.R. § 2424.3.
• Outcome: Union's negotiability petition dismissed as untimely.
• Key point: Service on the acting union president started the appeal clock because the ground rules did not require service on another official.

Full text (FLRA public release)

[ v33 p225 ]
33:0225(24)NG

The decision of the Authority follows:

33 FLRA No. 24

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

FEDERAL FIREFIGHTERS
ASSOCIATION

LOCAL 58

and

DEPARTMENT OF AIR
FORCE

OTIS AIR NATIONAL
GUARD

MASSACHUSSETTS

0-NG-1572

ORDER DISMISSING PETITION FOR
REVIEW

On July 26, 1988, the Federal Firefighters Association, Local 58 (the Union) filed a petition for review of negotiability issues. For the reasons set forth below, the Union's petition must be dismissed as untimely.

The Union and the Agency met to negotiate the parties' initial collective bargaining agreement. On June 24, 1988, the Agency served the Acting Union President with a written allegation that a certain provision of the parties' agreement was nonnegotiable. Later, on July 1, 1988, the Agency served a second allegation of nonnegotiability dated June 30, 1988, on the Acting Union President regarding another contract provision. Both allegations were subsequently received by the Executive Director of the Union on July 14, 1988. The Union's petition for review, dated July 26, 1988, was filed, by hand, with the Authority.

The time limit for filing a petition for review of negotiability issues is 15 days after 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. The date of service is the day the document is date stamped by the U.S. Postal Service or delivered in person. 5 C.F.R. 2429.27(d).

The Agency argues that service on the Acting Union President on June 24th and July 1st constituted service on the Union. Further, the Agency asserts that the Union's petition filed on July 26th, more than 15 days after the date of service of either of the allegations, is untimely. The Union argues that the Agency's service of its allegations was not made on the proper Union official. The Union contends that the Executive Director was the designated Union official to receive notification of nonnegotiable declarations from management. The Union has submitted a declaration from the Executive Director stating that "[i]n accordance with the ground rules for negotiations between the parties, the parties have agreed that notification on nonnegotiable declarations by management must be to me." The Union maintains that since it filed its petition 12 days after July 14, 1988, the date the Executive Director received the allegations, its petition was timely.

Article 7, Section 3 of the parties' ground rules provides in pertinent part that "[i]f the negotiability issue is not resolved, a written allegation that Management is excepted from the obligation to negotiate will be provided to the Union." There is nothing in the ground rules that constitutes an explicit restriction on the Union official who could be served with the Agency's allegation of nonnegotiability. In the absence of such evidence, the Agency's service on June 24th and July 1st on the Acting Union President constituted service on the exclusive representative. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 148 and Department of Justice, U.S. Bureau of Prisons, Allenwood Federal Prison Camp, 31 FLRA 12 (1988). Thus, in order to be timely filed, the Union's petition for review of the Agency's allegations served on June 24th and July 1st had to be filed --hand delivered at the Authority's National Office-- on July 11th and July 18th, 1988, respectively.

Accordingly, the Union's petition for review is
dismissed.

For the Authority.

Issued Washington, D.C.

______
Clyde B. Blandford,
Jr.
Acting Executive Director

FOOTNOTES:
(If blank, the decision does not
have footnotes.)