U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Office of Marine Operations and District No. 1-MEBA/NMU (Authority decision, June 9, 1989)

Final FLRA representation decision. The Authority dismisses Commerce's application for review of a regional director's decision as untimely, leaving that decision in place. These are unit clarification cases; 5 U.S.C. § 7123(a)(2) excludes orders involving appropriate-unit determinations from the ordinary 60-day judicial-review provision.

Plain-English summary

The Department of Commerce sought Authority review of a regional director's decision in four cases involving NOAA Marine Operations and District No. 1-MEBA/NMU. The review deadline was April 4, 1989. Commerce said it had mailed its application on March 29 and that the other parties received their copies before the deadline. The Authority had no record or evidence of a timely filing in its Washington docket room; the recorded application arrived May 1. It dismissed the application as late, explaining that using ordinary mail did not remove the party's responsibility to ensure timely filing.

Decision snapshot

• Authority: Regional director review deadline under former 5 C.F.R. § 2422.17(a) and docket room filing rule under § 2429.24(a).
• Outcome: Commerce's application for review dismissed as untimely.
• Key point: Delivery of copies to other parties did not prove timely filing with the Authority's docket room.

Full text (FLRA public release)

[ v33 p864 ]
33:0864(117)CU

The decision of the Authority follows:

33 FLRA No. 117

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
COMMERCE

NATIONAL OCEANIC AND
ATMOSPHERIC

ADMINISTRATION, NATIONAL OCEAN
SERVICE

OFFICE OF MARINE
OPERATIONS

(Activity)

and

DISTRICT NO.
1-MEBA/NMU

(Labor
Organization/Petitioner)

3-CU-80027

3-CU-80021

39-CU-80004

39-CU-80006

ORDER DISMISSING APPLICATION FOR
REVIEW

June 9, 1989

The U.S. Department of Commerce (Agency) has filed an application for review of the Regional Director's Decision and Order in the above-referenced cases. For reasons set out below, the Agency's application for review is untimely and must be dismissed.

The Authority's regulations provide that "[a] party may file an application for review of the Regional Director's Decision and Order with the Authority within sixty (60) days of the date of such action." 5 C.F.R. 2422.17(a). The 60-day time limit for filing an application for review "may not be extended or waived." Id. See also 5 C.F.R. § 2429.23(d). An application for review must be filed with the Authority's Docket Room in Washington, D.C. 5 C.F.R. § 2429.24(a). The time limit for filing an application for review may not be extended or waived. 5 C.F.R. § 2429.23(d).

The Regional Director's Decision and Order in this case is dated February 3, 1989. Any application for review of the Decision and Order had to be filed no later than April 4, 1989, to be timely filed. The application for review was filed by the Agency in the Authority's Docket Room (mailed in an official penalty mail envelope) on May 1, 1989.(*)

The Agency states that the "application for review was sent by regular mail on March 29, 1989, to the Federal Labor Relations Authority at 500 C Street, SW." The Agency argues that its application for review should be considered timely filed because the other parties received their copies prior to April 4, l989. The Agency maintains that it should not be penalized for using regular mail to file its application because the Authority no longer requires the use of certified mail to file documents.

The Authority has no record of receiving an application for review filed in the above cases other than the application for review filed by the Agency on May 1, 1989. In addition, the Agency provides no evidence to establish that it filed an application for review with the Authority's Docket Room before the expiration of the time limit. Although the Authority's regulations, amended on December 22, 1986, no longer require documents to be filed by certified mail, the filing party still bears the responsibility to ensure that the document is timely filed in the Authority's Docket Room.

The Agency's application for review was not timely filed. Accordingly, the Agency's application for review is dismissed.

For the Authority.

_______
Clyde B. Blandford,
Jr.
Acting Executive Director

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

*/ By letter dated May 4, 1989,
the Regional Director of Region III of the Authority advised the Authority that "on April 3, 1989, the Washington, D.C. Regional Office received what appears to be an original of an Application for Review of the Regional Director's decision . . . filed by the Activity." An application for review may not be filed in a Regional Office. 5 C.F.R. § 2429.24(a). See also American Federation of Government Employees, Local 1735 and Department of the Navy, Public Works Department, Naval Air Station, Kingsville, Texas, 28 FLRA 771 (1987).