American Federation of Government Employees, Local 38, AFL-CIO and U.S. Immigration and Naturalization Service (Authority decision, January 31, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing a negotiability petition. 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

AFGE Local 38 asked the Authority to review an Immigration and Naturalization Service claim that a bargaining proposal was nonnegotiable. The Authority found that the agency apparently served its claim on November 28, 1983. The union's petition was due by December 13 under the 15-day filing rule, but the Authority did not receive it until December 15. The Authority dismissed the petition as untimely without deciding whether the proposal was negotiable.

Decision snapshot

• Authority: Negotiability petition filing period under 5 U.S.C. § 7117(c)(2).
• Outcome: Petition dismissed as untimely; negotiability not decided.
• Key point: The petition had to reach the Authority within 15 days after service of the agency's nonnegotiability allegation.

Full text (FLRA public release)

[ v13 p706 ]

13:0706(115)NG

The decision of the Authority follows:

13 FLRA No. 115

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 38, AFL-CIO
Union

and

U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Activity

Case No. O-NG-935

ORDER DISMISSING PETITION FOR REVIEW

This case is before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute and section 2424.1 of the Authority's Rules and Regulations on a petition for review of negotiability issues filed by the Union. For the reasons indicated below, it has been determined that the Union's petition for review was untimely filed and must be dismissed on that basis.

Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the time limit for filing a petition for review of a negotiability issue is 15 days after the Agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the Union.

The Agency's allegation of nonnegotiability in this case was apparently served on the Union on November 28, 1983. Therefore, under the above-cited provisions of the Statute and the Authority's Rules and Regulations the petition for review had to be filed, i.e., received in the national office of the Authority, no later than the close of business on December 13, 1983. However, the petition for review was not filed until December 15, 1983, and was thus untimely under the Authority's rules of procedure.

Accordingly, as the Union's petition for review was untimely filed, and apart from other considerations, it is hereby dismissed.

For the Authority.

Issued, Washington, D.C., January 31, 1984
James J. Shepard, Executive
Director