U.S. Department of the Army, Presidio of San Francisco and American Federation of Government Employees, Locals 1457, 1157 and 3593 (Authority decision, February 27, 1990)

Final FLRA decision. The Authority dismisses the application for review of a Regional Director's representation decision for failure to serve all parties. This ends the Authority's review of that application. Judicial review of representation matters has separate limits under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1457 asked the Authority to review a Regional Director's decision in a unit case. Its filing lacked proof that the two intervening unions had received the application. The Authority ordered the local to cure the defect, but the local did not do so, and its response to a later show-cause order was late. Awareness of the filing did not replace service. The Authority dismissed the application without reaching the underlying unit issue.

Decision snapshot

• Authority: Application service under 5 C.F.R. §§ 2422.17(a) and 2429.27.
• Outcome: Application for review dismissed for failure to serve intervenors.
• Key point: Every party must receive an application for review, and a service defect must be cured when directed.

Full text (FLRA public release)

[ v34 p1032 ]
34:1032(165)CU

The decision of the Authority follows:

34 FLRA No. 165

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE
ARMY

HEADQUARTERS, SIXTH UNITED STATES
ARMY

PRESIDIO OF SAN FRANCISCO,
CALIFORNIA

(Activity)

and

U.S. DEPARTMENT OF THE
ARMY

HEADQUARTERS, U.S. ARMY
GARRISON

PRESIDIO OF SAN FRANCISCO,
CALIFORNIA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1457

(Labor
Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1157

(Labor
Organization/Intervenor)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 3593

(Labor
Organization/Intervenor)

9-CU-90012

ORDER DISMISSING APPLICATION FOR
REVIEW

February 27, 1990

The American Federation of Government Employees, Local 1457 (Petitioner) filed an application for review of the Regional Director's Decision and Order in the above-referenced case. For the reasons set out below, the Petitioner's application for review must be dismissed.

The Authority's Regulations provide that "[c]opies of the application for review shall be served on the Regional Director and all other parties, and a statement of service shall be filed with the application for review." 5 C.F.R. § 2422.17(a); also, see 5 C.F.R. § 2429.27. The Petitioner's application, as filed, did not include a statement that a copy of the application had been served on the two Intervenors in this case.

By Order dated January 12, 1990, the Authority notified the Petitioner of this deficiency and directed the Petitioner to cure it. The Order specifically cited and quoted the regulatory requirement that a copy of the application for review, including all attachments, must be served on all parties. It directed the Petitioner to file with the Authority, by January 22, 1990, a statement that service had been made on the Intervenors

On February 8, 1990, having received no response to its Order of January 12, 1990, the Authority issued an Order to Show Cause directing the Petitioner to show cause why its application for review should not be dismissed based on the failure to properly serve the Intervenors and to comply with the Authority's previous Order. The Order to Show Cause specified that the Petitioner's response must be received by the Authority by close of business February 14, 1990.

The Authority did not receive the Petitioner's response until February 15, 1990. In its response, the Petitioner stated that it had contacted the representatives of the two Intervenors by telephone and:

[N]either . . . expressed any concern about the consolidated/clarification petition at the Appeal stage. To [Petitioner's] knowledge they did not receive [the] Review documents but were aware of the filing.

The Petitioner's response to the Authority's Order to Show Cause, in addition to being untimely, establishes that the Petitioner has neither complied with the requirement of the Authority's Regulations to serve a copy of the application for review on all parties, nor cured that deficiency when explicitly directed to do so by the Authority in its January 12 Order. Furthermore, the Petitioner has not shown any reason why it was prevented from complying. The fact that the Intervenors in this case "were aware of the filing" of the application for review and did not express concern to the Petitioner about it does not relieve the Petitioner of its responsibility to comply with the Authority's Regulations. In sum, the Petitioner has failed to show cause why its application should not be dismissed based on its failure to properly serve the Intervenors with a copy of the application for review or to cure this deficiency as directed by the Authority.

Under 5 U.S.C. § 7105(f), the Authority has only 60 days to act after the filing of an application for review of a Regional Director's decision in a representation case. See also 5 C.F.R. § 2422.17. If the Authority does not act within the 60-day period, the Regional Director's decision becomes effective. This time limit cannot be waived or extended. 5 C.F.R. § 2429.23(d). In light of these stringent requirements of law and regulations, it is imperative that a party filing an application for review do so in a timely manner and in full compliance with the Authority's Regulations.

The application for review is dismissed because the Petitioner failed to serve a copy of the application for review on all parties to the case and failed to comply with the Authority's January 12, 1990, Order to cure that deficiency.

For the Authority.

_______
Alicia N.
Columna
Director, Case Control Office

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