National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency (Authority decision, March 17, 1989)

Final FLRA decision. The Authority dismisses the union's negotiability petition as untimely without deciding the disputed proposals. 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 Bureau of Indian Affairs told the Federal Service Impasses Panel that proposals involving its Colorado River Agency were nonnegotiable and mailed a copy to NFFE Local 422. The union had not requested the allegation but could still seek Authority review within 15 days of service, plus the allowance for mail. The agency's service statement showed an October 3, 1988, mailing, making October 24 the deadline. The union filed December 29. The Authority dismissed the petition as late, noting that it was late even if the union's claimed November 7 receipt date were used.

Decision snapshot

• Authority: Negotiability petition deadline under former 5 C.F.R. § 2424.3.
• Outcome: Union's petition dismissed as untimely.
• Key point: The review period ran from service of the unrequested allegation, and the petition missed even the deadline calculated from claimed receipt.

Full text (FLRA public release)

[ v33 p853 ]
33:0853(111)NG

The decision of the Authority follows:

33 FLRA No. 111

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

LOCAL 422

and

U.S. DEPARTMENT OF THE
INTERIOR

BUREAU OF INDIAN
AFFAIRS

COLORADO RIVER
AGENCY

0-NG-1641

ORDER

March 17, 1989

The National Federation of Federal Employees (Union) has filed a petition for review of negotiability issues in the above-referenced case. For the reasons indicated below, the Union's petition for review is untimely and must be dismissed.

In response to a request from the Federal Service Impasses Panel (Panel) for a written statement of position regarding the disputed proposals, the U.S. Department of the Interior, Bureau of Indian Affairs (Agency) notified the Panel that it considered the proposals to be nonnegotiable. The Agency served a copy of its statement on the Union.

The Union did not request the allegation of
nonnegotiability. Therefore, the Agency's allegation constitutes an unrequested allegation of nonnegotiability.

A Union may file a petition for review on an unrequested allegation of nonnegotiability. 5 C.F.R. § 2424.3. The petition, however, must be filed within 15 days after service of the allegation. 5 C.F.R. § 2424.3. The date of service is the date the allegation is deposited in the U.S. Mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).

The statement of service attached to the Agency's allegation of nonnegotiability indicates that the unrequested allegation was served on the Union by regular mail on October 3, 1988. Consequently, the Union's petition for review had to be filed with the Authority by close of business on October 24, 1988, to be timely filed. The Union's petition was filed with the Authority on December 29, 1988. Therefore, the Union's petition was untimely filed and must be dismissed.

The Union states that it did not receive a copy of the Agency's allegation of nonnegotiability until November 7, 1988. As noted previously, the time limit for filing a petition for review is measured from the date of service of an allegation of nonnegotiability--not the date of receipt. However, even if November 7, 1988, were used as the date of service, the Union's petition for review had to be filed with the Authority by November 28, 1988, to be timely filed. Accordingly, the Union's December 29 petition for review is untimely, even if the Union's date of receipt is used as the date of service.

For these reasons, the Union's petition for review is dismissed.

For the Authority.

_________
Clyde B. Blandford,
Jr.
Acting Executive Director

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