U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, New York and American Federation of Government Employees, Local 1760 (Authority decision, January 31, 1992)

Final FLRA decision. This order dismisses a negotiability petition as untimely. 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 Social Security Administration disapproved a provision in a memorandum of understanding and mailed its disapproval to the union on November 25, 1991. The union's negotiability petition was due by December 16, but it was postmarked December 17. The union pointed to when it received the disapproval. The Authority held that the filing period began when the agency served the disapproval by mail, not when the union received it, and that the deadline could not be extended. It dismissed the petition without deciding whether the disputed provision was negotiable.

Decision snapshot

• Authority: Petition deadline under 5 C.F.R. § 2424.3; nonwaivable limit under 5 C.F.R. § 2429.23(d).
• Outcome: Negotiability petition dismissed as untimely.
• Key point: The 15-day petition period ran from mailing of the agency's disapproval, so a petition postmarked one day after the deadline was late.

Full text (FLRA public release)

[ v43 p1353 ]
43:1353(107)NG

The decision of the Authority follows:

43 FLRA NO. 107

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS REGION II NEW YORK, NEW YORK (Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1760 (Union)

0-NG-2007

ORDER DISMISSING PETITION FOR REVIEW

January 31, 1992

The Union has filed a petition for review of negotiability issues in the above-captioned case. On January 8, 1992, the Authority issued an Order directing the Union to show cause why its petition for review in the above-captioned case should not be dismissed as untimely filed. The Agency filed a statement of position on the Union's petition. The Union filed a response */ to the Authority's January 8 Order. However, for the reasons set out below, the Union's petition for review is untimely and must be dismissed.

The time limit for filing a petition for review of negotiability issues is 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). The time limit may not be extended or waived by the Authority. 5 C.F.R. 2429.23(d).

The record in this case indicates that the parties executed a Memorandum of Understanding on October 25, 1991, and submitted it to the Agency head for review. By memorandum dated November 25, 1991, the Agency disapproved one provision of the Memorandum of Understanding. In its statement of position, the Agency furnished a postmarked, certified mail receipt showing that the Agency's memorandum of disapproval was served on the Union by certified mail on November 25, 1991. Therefore, in order to be considered timely, a petition for review of the Agency's disapproval had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than December 16, 1991. 5 C.F.R. 2424.3. The Union's petition for review was filed (postmarked) on December 17, 1991.

The Union's response to the Authority's January 8, 1992 Order includes an affidavit concerning the date the Union received the Agency's November 25, 1991 memorandum of disapproval. However, the date of receipt of an agency's disapproval is not controlling in the determination of the timeliness of a petition for review. Instead, the date of service of the disapproval--the date that the disapproval is deposited in the U.S. mail or is delivered in person--controls. 5 C.F.R. 2424.3 and 2429.27(d).

The Union's petition for review was not filed in the Authority's Docket Room within the prescribed time limit. As the time limit for filing a petition for review may not be extended or waived by the Authority, the Union's petition is dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office

FOOTNOTES

Footnote */ The Union's response to the Authority's January 8, 1992 Order was not timely filed. However, the Union has requested a waiver of the expired time limit on the basis that it received the Authority's Order after the time limit to respond had expired. The Union's request is granted and its response has been accepted. 5 C.F.R. 2429.23(b).