American Federation of Government Employees, Local 2047 and U.S. Department of Defense, Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia (Authority decision, May 11, 1990)

Final FLRA decision. The Authority dismissed the union's negotiability petition as untimely. The order ends this petition without resolving the proposed contract language. Judicial review of this negotiability order is governed by 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 2047 received the agency's allegation that its proposed contract language was nonnegotiable on August 16, 1989. The petition for Authority review was due August 31. The union sent it by Federal Express on that date, but the Authority received it on September 1. Under the filing rules then in effect, delivery service counted on receipt, while a timely U.S. Postal Service postmark could establish filing by mail. Because the petition arrived after the deadline, the Authority dismissed it without reaching negotiability.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c)(2) and former 5 C.F.R. §§ 2424.3 and 2429.21(b).
• Outcome: Negotiability petition dismissed as untimely.
• Key point: Sending a petition by delivery service on the deadline did not make it timely when it reached the Authority the next day.

Full text (FLRA public release)

[ v35 p1089 ]
35:1089(118)NG

The decision of the Authority follows:

35 FLRA No. 118

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

Local 2047

(Union)

and

U.S. DEPARTMENT OF
DEFENSE

DEFENSE LOGISTICS
AGENCY

DEFENSE GENERAL SUPPLY
CENTER

RICHMOND, VIRGINIA

(Agency)

0-NG-1749

ORDER DISMISSING PETITION FOR
REVIEW

May 11, 1990

The Union has filed a petition for review of
negotiability issues in the above-referenced case. The Agency filed a motion to dismiss the petition. For the following reasons, the petition for review is dismissed as untimely filed.

A petition for review of negotiability issues must be filed with the Authority within 15 days after service on the Union of the Agency's allegation of nonnegotiability. 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). See also Hawaii Federal Employees Metal Trades Council, AFL-CIO and Pearl Harbor Naval Shipyard, 23 FLRA 534 (1986).

The two methods for filing documents with the Authority are by mail (U.S. Postal Service) or in person (party, agent or delivery service). 5 C.F.R. § 2429.24(e). If "the filing is by personal delivery, it shall be considered filed on the date it is received by the Authority[.]" 5 C.F.R. § 2429.21(b). Any document filed with the Authority, including a petition for review of negotiability issues, must be filed in the Authority's Docket Room in Washington, D.C. 5 C.F.R. § 2429.24(a).

In a letter to the Agency dated August 8, l989, the Union requested a written allegation of nonnegotiability with respect to the contract language it proposed. Petition for Review, Attachment 5. The Agency responded by letter dated August 16, l989.(*) A notation at the bottom of the letter signifies that the letter was received by the Union on the same day. Petition for Review, Attachment 6. Accordingly, a petition for review had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than August 31, 1989. See 5 U.S.C § 7117(c)(2); 5 C.F.R. § 2424.3.

The Union sent its petition for review to the Authority by Federal Express on August 31, 1989. The petition was received by the Authority on September 1, 1989. As the petition for review was neither postmarked by the U.S. Postal Service nor received in person at the Authority's Docket Room prior to the close of business on August 31, 1989, the petition for review is untimely filed.

As noted previously, the time limit for filing a petition for review of negotiability issues may not be extended or waived. Accordingly, as the petition for review was not timely filed, the petition for review is dismissed.

For the Authority.

________
Alicia N.
Columna
Director, Case Control Office

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

*/
The Union asserts that the Agency's August
16, 1989, letter is not an allegation of nonnegotiability. However, the letter was sent in response to the Union's request for an allegation of nonnegotiability, and the Union treated it as such by filing a petition for review. Further, an allegation of nonnegotiability, or a failure to respond to a request for such an allegation, is a prerequisite to filing a petition for review. See 5 U.S.C. § 7117(c)(1); 5 C.F.R. § 2424.1. See also American Federation of State, County, and Municipal Employee, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983).