33:0873(121)NG - - AFGE Local 2608 and HHS, SSA, Santurce Branch Office, PR - - 1989 FLRAdec NG - - v33 p873
[ v33 p873 ]
The decision of the Authority follows:
33 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2608
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
SANTURCE BRANCH OFFICE, PUERTO RICO
July 20, 1989
On September 7, 1988, the American Federation of Government Employees, AFL-CIO, Local 2608 (the Union) filed a petition for review of a negotiability issue pursuant to 5 U.S.C. § 7117(c) and 5 C.F.R. § 2424.1. The Department of Health and Human Services, Social Security Administration (the Agency) did not file a Statement of Position. The Union's petition was untimely filed and must be dismissed.
Under 5 U.S.C. § 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations (5 C.F.R. § 2424.3), the time limit for filing a petition for review of a negotiability issue is 15 days after service on the Union of the Agency's allegation of nonnegotiability. Further, the time limit established in section § 7117(c)(2) of the Statute may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).
This case concerns the negotiability of one proposal which provides that management will not adversely affect employees by assigning work which is clearly not within an employee's job description. During proceedings before the Federal Service Impasses Panel, the Agency alleged that this proposal, among others not involved in this appeal, was outside the duty to bargain because it conflicted with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Union, as it is permitted to do, ignored this unsolicited allegation and on July 25, 1988, requested a written allegation of nonnegotiability from the Agency. The Agency responded to this request on August 11, 1988, stating as to this proposal, that "[a]ssignment of work is a management right." Letter from the Agency to the Union dated August 11, 1988, attached to the petition for review. Subsequently, in its September 7, 1988, petition for review the Union attached the Agency's August 11, 1988, letter and claimed that "[m]anagement up to this date has refused to declare the specific proposal a non-negotiable issue, but did indicate that this issue involved a management right." Petition for review at l.
Section 2429.27(d) of the Authority's Rules and Regulations, (5 C.F.R. § 2429.27(d)), provides that the date of service is the day a matter served is deposited in the U.S. mail or is delivered in person. In the absence of a postmarked envelope or other evidence bearing the actual service date, the date on an allegation of nonnegotiability is presumed to be the date on which it is served. Further, whenever a party is served by mail, 5 days are added to the 15-day period for filing the petition. 5 C.F.R. § 2429.22.
Since the Union did not submit a postmarked envelope with the Agency's August 11, 1988, allegation, it is presumed that the Agency's allegation was served on the Union by mail on August 11, 1988. Therefore, in order to be timely filed, the Union's petition for review 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 August 31, 1988, or if filed in person, received at the Authority's National Office no later than the close of business on that same date. 5 C.F.R. § 2429.21(b), as amended. The Union's petition, however, was not filed with the Authority until September 7, 1988. Accordingly, the Union was ordered to show cause why its petition for review should not be dismissed as untimely filed.
In response to the Authority's Show Cause Order, the Union made no claim that the Agency's August 11 allegation of nonnegotiability was served on the Union on a later date. Rather, the Union asserts that its representative was out of the office from August 6, 1988 through August 20, 1988, and was also away from his regular duty station for periods after August 20, 1988. Consequently, since the Union did not es