American Federation of Government Employees, Local 644 and Department of Labor, Mine Safety and Health Administration, Pittsburgh Health Technology Center (Authority decision, November 18, 1988)

Final FLRA decision. The Authority dismisses the union's negotiability petition as untimely without deciding the disputed bargaining issue. 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 644 sought review of a Mine Safety and Health Administration nonnegotiability allegation mailed on August 26, 1988. The Authority calculated a September 19 filing deadline, including the allowance for mail service. The union filed September 28. It argued that the allegation did not reach its employing office until September 6 and that its representative did not read it until September 12. The Authority held that the deadline ran from mailing, not receipt or review, and dismissed the petition as late.

Decision snapshot

• Authority: Negotiability petition deadline under 5 U.S.C. § 7117(c)(2) and former 5 C.F.R. § 2424.3.
• Outcome: Union's petition dismissed as untimely.
• Key point: Receipt and internal review dates did not replace the allegation's service date.

Full text (FLRA public release)

[ v33 p825 ]
33:0825(95)NG

The decision of the Authority follows:

33 FLRA No. 95

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

AFL-CIO

LOCAL 644

and

DEPARTMENT OF LABOR

MINE SAFETY AND HEALTH
ADMINISTRATION

PITTSBURGH HEALTH TECHNOLOGY CENTER

0-NG-1605

ORDER

This matter is before the Authority pursuant to 5 U.S.C. § 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. For the reasons indicated below, it has been determined that the Union's petition was untimely filed and must be dismissed.

Under 5 U.S.C. § 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 a negotiability issue is 15 days after service on the Union of the Agency's allegation of nonnegotiability. Further, under 5 C.F.R. § 2429.23(d), the time limit established in section § 7117(c)(2) of the Statute may not be extended or waived by the Authority.

The Agency's allegation of nonnegotiability was served on the Union by mail on August 26, 1988. The date of service is the day the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R.
§ 2429.27(d) (1987). Whenever a party is served by mail, 5 days are added to the 15 day period for filing the petition. Therefore, in order to be timely filed, the petition 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 September 19, 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. The Union's petition was filed on September 28, 1988.

In response to the Authority's Show Cause Order, the Union asserts that although the "allegation of nonnegotiability . . . was mailed . . . on August 26, 1988, it was not received in my employing office until September 6, 1988." The Union further contends that its representative was out of the office from September 6 through September 12, 1988, and did not review the allegation until September 12, 1988. The period for filing a petition for review begins on the date the Agency's allegation was served on the Union, that is, deposited in the mail, and not on the date the allegation was received or reviewed. American Federation of Government Employees, AFL-CIO, Council 157 and Department of the Treasury, U.S. Mint, 23 FLRA 462 (1986).

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.)