National Federation of Federal Employees, Local 422 and Bureau of Indian Affairs Colorado River Agency (Authority decision, February 2, 1995)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing a negotiability petition on procedural grounds. 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). A review petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NFFE Local 422 sought review of the Bureau of Indian Affairs Colorado River Agency's claim that union proposals were not negotiable. The agency made that claim during proceedings before the Federal Service Impasses Panel in July 1994. The union filed its petition in December, arguing that the parties had agreed to count the filing period from the panel's December action. The Authority held that the filing deadline ran from service of the agency's allegation and could not be extended by agreement. It dismissed the petition as untimely without deciding whether the proposals were negotiable.

Decision snapshot

• Authority: Negotiability petition deadline under 5 C.F.R. § 2424.3.
• Outcome: Petition dismissed as untimely.
• Key point: A union cannot extend the Authority's filing deadline by agreeing with the agency to use a later start date.

Full text (FLRA public release)

[ v50 p121 ]
50:0121(24)NG

The decision of the Authority follows:

50 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 422

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

COLORADO RIVER AGENCY

PARKER, ARIZONA

(Agency)

0-NG-2221

ORDER DISMISSING PETITION FOR REVIEW

February 2, 1995

The Union has filed a petition for review of negotiability issues in the above-captioned case. On January 10, 1995, the Authority directed the Union to show cause why its petition for review should not be dismissed as untimely filed. The Union filed a timely response to the Authority's Order. For the reasons set out below, the Union's petition for review must be dismissed.

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.

If a Union receives an unsolicited allegation of nonnegotiability, including one made by an Agency during proceedings before the Federal Service Impasses Panel (the Panel), the Union has two options: (1) respond to the unsolicited allegation of nonnegotiability and timely file a petition for review with the Authority; or (2) ignore the unsolicited allegation of nonnegotiability made before the Panel, make a written request for a written allegation of nonnegotiability from the agency, and timely file its petition for review with the Authority. See American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 523-24 (1991) (INS).

On June 30, 1994, the Union requested the Panel's assistance to resolve a negotiation impasse. In response to the Panel's request for its position, the Agency made an unsolicited allegation of nonnegotiability to the Panel on July 26, 1994. On December 5, 1994, the Panel declined to assert jurisdiction because the Agency raised the threshold issue whether it had any obligation to bargain over the Union's proposals. Presuming that the Agency's allegation was served on the Union by mail on July 26, 1994, a petition for review of the Agency's allegation had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than August 15, 1994, in order to be considered timely. 5 C.F.R.
§ 2424.3. The Union's petition for review was filed (postmarked) in the Authority's Docket Room on December 22, 1994.

The Authority's January 10, 1995, Order directed the Union to provide either: (1) a request to the Agency for an allegation of nonnegotiability dated after July 26, 1994, to which the Agency has failed to respond; or (2) an unsolicited allegation of nonnegotiability served on the Union after December 2, 1994.

In its response, the Union provided the Authority with additional documentation. However, none of the documentation satisfies the above stated requirements. Further, the Union asserts that its petition is timely filed since the "[p]arties have agreed that December 5, l994 is the date from which the petition for review of negotiability issues must be filed." Response to Order at 1. Regardless of the parties agreement, the time limit for a Union to file a petition for review of an Agency's allegation of nonnegotiability may not be extended or waived by the Authority. 5 C.F.R.
§ 2429.23(d).

The Union has failed to provide pertinent evidence to support its assertion that its petition for review was timely filed. Accordingly, the Union's petition for review was not timely filed, and is, therefore, dismissed.

For the Authority.

______
Alicia N. Columna
Director, Case
Control Office

FOOTNOTES:
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have footnotes.)