21:0050(11)NG - AFGE, Administrative Council of Locals, Local 547 and VA, James A. Haley Medical Center Tampa, Flr -- 1986 FLRAdec NG

 21 FLRA No. 11
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, ADMINISTRATIVE
 COUNCIL OF LOCALS, LOCAL 547
 Union
 
 and
 
 VETERANS ADMINISTRATION 
 JAMES A. HALEY MEDICAL CENTER 
 TAMPA, FLORIDA
 Activity
 
                                           Case No. 0-NG-1233
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This case is before the Authority pursuant to sections 7105(a)(2)(E)
 of the Federal Service Labor-Management 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 negotiability issues is 15 days after service on the Union
 of the Agency's allegation that the duty to bargain in good faith does
 not extend to the matter proposed to be bargained.
 
    As part of its petition for review, the Union submitted a copy of the
 Activity's allegation of nonnegotiability dated December 24, 1986, that
 was addressed to an Alan Pedigo of St.  Petersburg, Florida.  Thus, the
 Activity's allegation of nonnegotiability in this case apparently was
 served on the Union by mail on December 24, 1985.  Therefore, under
 section 2424.3 of the Authority' s Rules and Regulations as well as
 sections 2429.21 and 2429.22 which also are applicable to computation of
 the time limit here involved, the Union's petition for review had to be
 filed, that is, received in the national office of the Authority, no
 later than the close of business on January 13, 1986.  However, the
 petition for review dated January 16, 1986, was not filed until January
 16, 1986.  The parties were given telephonic notice of the timeliness
 issue and an opportunity to respond in writing.
 
    The Activity has supplied the Authority with a copy of its return
 receipt-- or "green card"-- showing that Mr. Alan Pedigo of St.
 Petersburg, Florida accepted delivery on December 27, 1986.  The Union
 has filed a written response arguing that:  (1) the Activity sent its
 allegation dated December 24, 1985, by "regular U.S. Mail" and,
 therefore, was not in compliance with section 2429.27(b) of the
 Authority's Rules and Regulations;  (2) the Union is willing to accept
 and acknowledge service by regular mail and be bound by the date
 received, which was December 27, 1986;  and (3) the Authority is causing
 unnecessary litigation on procedural questions that have not been raised
 by the parties.
 
    The Activity's return receipt for Mr. Pedigo shows that it was in
 compliance with section 2429.27(b) of the Authority's rules of procedure
 when it served its allegation of nonnegotiability on the Union by
 certified mail.  Moreover, even assuming that the Authority had the
 discretion in this instance to late the timeliness of the Union's
 petition for review from December 27, 1986-- the date of receipt by the
 Union of the Activity's allegation-- sections 2424.3 and 2429.21 of the
 Rules and Regulations dictate that the due date for any petition for
 review of that allegation was January 13, 1986.
 
    With respect to the Union' s assertion that the Authority is
 intervening on the side of dismissing appeals when no procedural
 question has been raised by either party, the timeliness of petitions
 for review filed with the Authority is not a determination that is
 optional at the Authority's discretion.  Section 7117(c) (2) of the
 Statute state;  in pertinent part:  "The exclusive representative may,
 on or before the 15th day after the date on which the agency first makes
 the allegation ... institute an appeal ... by ... filing a petition with
 the Authority.  ..." Clearly, the question whether the Authority has
 jurisdiction over a petition for review is dependent on its own
 determination of whether the petition was filed within the 15 days
 mandated by the Statute for such filings.
 
    In sum, the Activity has demonstrated proper service of its
 allegation on the Union, and it is clear that the Union's petition was
 filed beyond the due date, regardless of whether the due date is
 calculated in terms of date of service by mail, or date received.
 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., March 13, 1986
                                       (s)---
                                       Harold D. Kessler
                                       Director of Case Management