28:0771(100)NG - AFGE, LOCAL 1735 VS NAVY, NAVY PUBLIC WORKS DEPART



[ v28 p771 ]
28:0771(100)NG
The decision of the Authority follows:


28 FLRA NO. 100



AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1735

                  Union

         and

DEPARTMENT OF THE NAVY
PUBLIC WORKS DEPARTMENT
NAVAL AIR STATION
KINGSVILLE, TEXAS

                  Activity

Case No. 0-NG-1428

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 deter-mined 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. Further, under section 2429.23(d) of the Authority's rules of procedure, the time limit established in section 7117(c)(2) of the Statute may not extended or waived by the Authority.

The documents the Union submitted with its petition for review indicate that the Activity's written allegation that a certain union proposal is nonnegotiable is dated June 30, 1987. The allegation apparently was served on the Union by mail on the same date. The Activity's allegation of nonnegotiability was not specifically requested by the Union but was in response to the Union's written proposal dated June 15, 1987.

Where, as in the present case, a union is served with an activity's written allegation of nonnegotiability that has not  been specifically solicited by the union in writing, the union may exercise its right to submit a written request to the activity for another allegation, and then file a petition for review of the negotiability dispute with the Authority in accordance with section 2424.3 of the Rules when the activity subsequently responds (or fails to respond); or file a timely petition for review of the unsolicited allegation of nonnegotiability.

In the subject case, the Union elected to file its appeal from the Activity's unsolicited allegation of June 30, 1987. 1 Therefore, under section 2424.3 of the Authority's Rules and Regulations as well as sections 2429.21(b) 2 and  2429.22 3 which also are applicable to computation of the time limit here involved, the petition for review in order to be timely filed had to be either mailed to the national office of the Authority in Washington, D.C., and postmarked by the U.S. Postal Service no later than July 20, 1987, or if filed in person, received at the Authority's national office no later than the close of business on the same date.

However, the Union's petition for review was not filed with the Authority at its national office in Washington, D.C., until July 23, 1987. The record indicates that the Union first mailed its petition for review dated July 13, 1987, to Region VI of the Federal Labor Relations Authority in Dallas, Texas. Region VI received the petition on July 15, 1987. The Regional Director by letter dated July 17, 1987, returned the petition to the Union with copies of the Authority's Rules and Regulations, the Federal service Labor - Management Relations Statute, and a Guide to the Statute. The Regional Director also explained that negotiability appeals must be filed with the national office of the Authority. 4 As the subject petition dated July 22, 1987, was not mailed to the Authority's national office until July 23, 1987--date of postmark--it was untimely filed. 

Accordingly, as the Union's petition for review was untimely filed, it is hereby dismissed.

For the Authority.

Issued, Washington, D.C., August 31, 1987.

Harold D. Kessler
Director of Case Management

FOOTNOTES

Footnote 1 In its petition for review, the Union states that it did not receive the Activity's allegation of nonnegotiability until July 8, 1987. However, the period for filing the instant petition for review began on the date the Activity's allegation was served on the Union; that is, deposited in the mail (see section 2429.27(d) of the Authority's Rules and Regulations), and not on the date the allegation was received. See American Federation of Government Employees, AFL-CIO, Council 157 and Department of the Treasury, U.S. Mint., 23 FLRA No. 66 (1986).

Footnote 2 Subsection 2429.21(b) of the Authority's Rules and Regulations, provides in pertinent part: 2429.21 Computation of time for filing papers. (b) Except when filing an unfair labor practice charge . . . , a representation petition . . . , and a request for extension of time . . . , when this subchapter requires the filing of any paper with the Authority . . . , the date of filing shall be determined by the date of mailing indicated by the postmark date. If no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt. If the filing is by personal delivery, it shall be considered filed on the date it is received by the Authority . . . .

Footnote 3 Section 2429.22 of the Authority's Rules and Regulations, provides in pertinent part: 2429.22 Additional time after service by mail. (W)henever a party has the right or is required to do some act . . . within a prescribed period after service of a notice or other paper upon such party, and the notice or paper is served on such party by mail, five (5) days shall be added to the prescribed period . . . . Application of section 2429.22 by the Authority is explained in United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center