U.S. Department of Defense, Stateside Dependents Schools and Overseas Education Association and Antilles Consolidated Education Association (Authority decision, January 12, 1994)

Final FLRA representation decision. This order dismisses an application for review of a Regional Director's bargaining-unit decision and ends that review proceeding. The underlying matter concerns a unit determination under 5 U.S.C. § 7112; § 7123(a)(2) excludes Authority orders involving appropriate-unit determinations from the ordinary 60-day judicial-review provision.

Plain-English summary

The Overseas Education Association sought Authority review of a Regional Director's decision in a bargaining-unit case involving Department of Defense schools. Its application arrived on December 13, 1993, in an envelope without a postmark. Under the Authority's filing rule, that made December 8 the presumed mailing date, one day after the December 7 deadline. The union submitted declarations saying it had mailed the application on December 7, but the Authority found that those declarations were not proof of filing under the rule. Because the deadline could not be extended or waived, the Authority dismissed the application without reaching the unit dispute.

Decision snapshot

• Authority: Representation review deadline under 5 C.F.R. § 2422.17(a); missing-postmark rule under § 2429.21(b).
• Outcome: Application for review dismissed as untimely.
• Key point: An envelope without a postmark triggered the rule's presumed filing date, and personal declarations did not establish timely filing.

Full text (FLRA public release)

[ v48 p1389 ]
48:1389(145)UC

The decision of the Authority follows:

48 FLRA No. 145

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

STATESIDE DEPENDENTS SCHOOLS

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Labor Organization/Petitioner)

and

ANTILLES CONSOLIDATED EDUCATION
ASSOCIATION

(Labor Organization/Intervenor)

WA-UC-20875

ORDER DISMISSING APPLICATION FOR REVIEW

January 12, 1994

The Petitioner has filed an application for review of the Regional Director's Decision and Order in the above- captioned case. On December 17, 1993, the Authority issued an Order directing the Petitioner to show cause why its application should not be dismissed as untimely filed. The Petitioner filed a timely response to the Authority's Order. For the reasons set out below, the Petitioner's application 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).

The Regional Director's Decision and Order in this case is dated October 8, 1993. Any application for review of the Decision and Order had to be either postmarked by the U.S. Postal Service or delivered in person to the Authority no later than December 7, 1993, in order to be considered timely.

The Authority received the Petitioner's application for review on December 13, 1993. The envelope in which the application for review was mailed did not have a postmark. Under Section 2429.21(b) of the Authority's Rules and Regulations, if no postmark is evident, a filing is presumed to have been mailed 5 days prior to receipt. 5 C.F.R. § 2429.21(b). Therefore, the filing date for the Petitioner's application is presumed to be December 8, 1993. See Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987).

The Petitioner's assertion, supported by personal declarations, that it submitted its application for review to the Post Office on December 7, 1993, does not constitute proof of filing pursuant to section 2429.21(b) of the Authority's Regulations. See U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago District, Chicago, Illinois and National Treasury Employees Union and National Treasury Employees Union, Chapter 10, 44 FLRA 538, 540 (1992).

Accordingly, as the Petitioner's application for review was not timely filed, and as the time limit for filing an application for review may not be extended or waived by the Authority, the application is dismissed.

For the Authority.

__________
Alicia N. Columna

Director, Case Control Office

FOOTNOTES:
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have footnotes.)