33:0853(111)NG - - NFFE Local 422 and DOI, Bureau of Indian Affairs, Colorado River Agency - - 1989 FLRAdec NG - - v33 p853
[ v33 p853 ]
The decision of the Authority follows:
33 FLRA No. 111
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
COLORADO RIVER AGENCY
March 17, 1989
The National Federation of Federal Employees (Union) has filed a petition for review of negotiability issues in the above-referenced case. For the reasons indicated below, the Union's petition for review is untimely and must be dismissed.
In response to a request from the Federal Service Impasses Panel (Panel) for a written statement of position regarding the disputed proposals, the U.S. Department of the Interior, Bureau of Indian Affairs (Agency) notified the Panel that it considered the proposals to be nonnegotiable. The Agency served a copy of its statement on the Union.
The Union did not request the allegation of nonnegotiability. Therefore, the Agency's allegation constitutes an unrequested allegation of nonnegotiability.
A Union may file a petition for review on an unrequested allegation of nonnegotiability. 5 C.F.R. § 2424.3. The petition, however, must be filed within 15 days after service of the allegation. 5 C.F.R. § 2424.3. The date of service is the date the allegation is deposited in the U.S. Mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).
The statement of service attached to the Agency's allegation of nonnegotiability indicates that the unrequested allegation was served on the Union by regular mail on October 3, 1988. Consequently, the Union's petition for review had to be filed with the Authority by close of business on October 24, 1988, to be timely filed. The Union's petition was filed with the Authority on December 29, 1988. Therefore, the Union's petition was untimely filed and must be dismissed.
The Union states that it did not receive a copy of the Agency's allegation of nonnegotiability until November 7, 1988. As noted previously, the time limit for filing a petition for review is measured from the date of service of an allegation of nonnegotiability--not the date of receipt. However, even if November 7, 1988, were used as the date of service, the Union's petition for review had to be filed with the Authority by November 28, 1988, to be timely filed. Accordingly, the Union's December 29 petition for review is untimely, even if the Union's date of receipt is used as the date of service.
For these reasons, the Union's petition for review is dismissed.
For the Authority.
Clyde B. Blandford, Jr.
Acting Executive Di