31:0012(3)NG - AFGE, Council of Prison Locals, Local 148 and Justice, Bureau of Prisons, Allenwood Federal Prison Camp -- 1988 FLRAdec NG



[ v31 p12 ]
31:0012(3)NG
The decision of the Authority follows:


  31 FLRA NO. 3
     31 FLRA 12


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
PRISON LOCALS, LOCAL 148

              Union

         and

DEPARTMENT OF JUSTICE,
U.S BUREAU OF PRISONS,
ALLENWOOD FEDERAL PRISON CAMP

              Activity

                                            Case No. 0-NG-1446

             ORDER DISMISSING PETITION FOR REVIEW

     On August 20, 1987, the American Federation of Government
Employees, Local 148 (the Union) filed a petition for review of
negotiability issues. The U.S. Department of Justice (the Agency)
moved that the Authority dismiss the petition as untimely. The
Agency's motion is granted. The Union's petition is dismissed.

     The Agency and Union met concerning several proposals on
shift assignments. On August 3, 1987, the Union, through its
Local Vice President, served on the Agency a request for the
Agency's written allegation that the duty to bargain did not
extend to these proposals. The Agency responded the same day when
it served its response on the Local Chief Steward. The Chief
Steward gave the Vice President the Agency's response on August
5, 1987. The Vice President was on annual leave during the week
of August 2, 1987, except on the two occasions described above.
The Union's petition for review, dated August 18, 1987, was filed
with the Authority -- deposited in the mail as indicated by the
postmark -- on August 20, 1987.

     The time limit for filing a petition for review of
negotiability issues is 15 days after the date the agency's
allegation of nonnegotiability is served on the exclusive
representative. 5 U.S.C. 7117(c)(2) and 5 C.F.R. 2424.3 (1987).
The date of service is the day when the matter served is
deposited in the U.S. mail or is delivered in person. 5 C.F.R.
2429.27(d) (1987). 

     The Agency argues that service on the Chief Steward on
August 3, 1987 constituted service on the exclusive
representative. If so, the Union's petition would be untimely
since it was not filed until 17 days later. The Union counters
that service was not complete until the Vice President received
the Agency's allegation of nonnegotiability on August 5, 1987. It
maintains that the Union's request for the allegation clearly
asked that the Vice President be served. The Union submitted an
affidavit from the Vice President stating that he is the
"designated officer to receive general correspondence for the
Local . . . ." The Agency submitted an affidavit from the
Personnel Officer which stated that the Vice President had posted
a notice on the Union bulletin board stating that the Chief
Steward would be acting in the official capacity of the Vice
President while he was on leave.

     The Union's request to the Agency was signed by the Vice
President and contained the statement, "I request management's
final position . . . ." This statement is not an explicit
designation of the officials to whom the Agency may give a
response. The designation of the Vice President as the officer to
receive general correspondence also does not designate who may be
served when the Vice President is on leave. In National Treasury
Employees Union and Department of the Treasury, 21 FLRA  1051,
1051 (1986) the Authority held that service of the agency's
allegation of nonnegotiability on a receptionist at a Union
office when most union officials were out of town satisfied
service requirements in a negotiability dispute.

     Here, the Personnel Director served the Chief Steward with
the Agency's allegation when the Vice President was on leave. The
Chief Steward was the other member of the Union's negotiating
team on the issues in dispute. Under these circumstances, in the
absence of an explicit restriction on the Union official who
could be served with the allegation, the Agency's August 3, 1987
service on the Chief Steward constituted service on the exclusive
representative. The Union's petition for review had to be
postmarked by August 18, 1987 to be timely.

     Accordingly, the petition for review in