American Federation of Government Employees, Local 1931 and U.S. Department of the Navy, Naval Weapons Station, Concord, California (Authority decision, February 2, 1990)

Final FLRA decision. This order dismisses a negotiability petition and ends the Authority proceeding. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union at Concord Naval Weapons Station filed a negotiability petition with missing information. The Authority gave it until December 15, 1989, to correct the petition, but the union responded on December 19. The union argued that service by mail added five days to the deadline. The Authority held that the mail extension applies to periods prescribed by regulation, while this deadline was set in its specific order. It dismissed the petition for failing to respond on time and did not decide whether the underlying proposals were negotiable.

Decision snapshot

• Authority: Petition completion rule at 5 C.F.R. § 2424.4(c)(1); mail extension rule at 5 C.F.R. § 2429.22.
• Outcome: Negotiability petition dismissed for an untimely response.
• Key point: Mailing did not extend a deadline that the Authority set in a case-specific order.

Full text (FLRA public release)

[ v34 p709 ]
34:0709(122)NG

The decision of the Authority follows:

34 FLRA NO. 122

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1931

and

U.S. DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION
CONCORD, CALIFORNIA

0-NG-1768

ORDER DISMISSING PETITION FOR REVIEW

February 2, 1990

The American Federation of Government Employees, Local 1931 (Union) has filed a petition for review of negotiability issues in the above-referenced case. On December 8, 1989, the Authority issued an Order granting the Union an opportunity to correct deficiencies in its petition for review. For the reasons set out below, the Union's petition for review must be dismissed.

The Authority's December 8, 1989 Order stated that the Union's response must be filed by December 15, 1989, and that failure to comply with the Order may result in dismissal of the Union's petition. 5 C.F.R. 2424.4(c)(1). The Union filed its response to the Authority's Order on December 19, 1989.

In its response, the Union asserts that section 2429.22 of the Authority's regulations adds 5 days to the December 15, 1989 due date because the Authority's December 8 Order was served on the Union by mail.

In pertinent part, section 2429.22 provides:

(W)henever a party has the right or is required to do some act pursuant to this subchapter within a prescribed period after service of a notice or other paper upon such party, and the notice or paper is served on such party by mail, five (5) days shall be added to the prescribed period(.) (Emphasis added.)

Examples of "prescribed periods" within the meaning of 5 C.F.R. 2429.22 include the following:

(1) Any party may file an opposition to an application for review of a Regional Director's Decision and Order with the Authority within 10 days after service of the application for review. 5 C.F.R. 2422.17.

(2) Any exception to an Administrative Law Judge's decision, and briefs in support of exceptions, may be filed by any party with the Authority within 25 days after service of the decision. 5 C.F.R. 2423.26(c).

(3) The time limit for filing a petition for review with the Authority is 15 days after the date the agency's allegation of nonnegotiability is served on the exclusive representative. 5 C.F.R. 2424.3.

(4) The time limit for filing an exception to an arbitration award with the Authority is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. 2425.1(b).

The Authority's action in its December 8, 1989 Order of assigning a due date for the Union to correct deficiencies in its petition for review was predicated on section 2424.4(c)(1) of its regulations:

Filing an incomplete petition for review will result in the exclusive representative being asked to provide the missing or incomplete information. Noncompliance with a request to complete the record may result in dismissal of the petition. (5 C.F.R. 2424.4(c)(1).)

Section 2424.4(c)(1) does not prescribe any period for action. The Authority's assignment of a due date for the Union to correct deficiencies in its petition for review was not a function of a "prescribed period" in section 2424.4(c)(1) or any other section of the Authority's regulations. Therefore, 5 days cannot properly be added by operation of section 2429.22 to the December 15, 1989 due date stated in the Authority's December 8, 1989 Order.

Accordingly, as the Union has failed to timely respond to the Authority's Order of December 8, 1989, the Union's petition for review is dismissed. 5 C.F.R. 2424.4(c)(1).

For the Authority.

Alicia N. Columna
Director, Case Control Office