41:0265(28)NG - - AFGE Local 3407 and Defense Mapping Agency, Hydrographic-Topographic Center, Washington, DC - - 1991 FLRAdec NG - - v41 p265



[ v41 p265 ]
41:0265(28)NG
The decision of the Authority follows:


41 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3407

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC-TOPOGRAPHIC CENTER

WASHINGTON, D.C.

(Agency)

0-NG-1707

DECISION AND ORDER DISMISSING PETITION FOR REVIEW

June 19, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Union sought review of three proposals relating to the implementation of the Agency's drug testing program. The three proposals were referenced by the parties as sections 9, 10 and 19.

The Agency argues that the petition for review with regard to the proposals designated as sections 9 and 10 was untimely filed under the Authority's Rules and Regulations. We agree for the reasons explained below. Additionally, in responding to the Agency's statement of position, the Union withdrew the proposal concerning section 19. In view of the untimeliness of the petition with regard to two proposals and the withdrawal of the third proposal, there are no proposals before the Authority for review. Consequently, we will dismiss the petition for review.

II. Timeliness of the Petition for Review

The record indicates that on October 20, 1988, the Union requested a written allegation from the Agency with regard to a number of drug testing proposals, including sections 9, 10, and 19. The Union also submitted a request for an allegation of nonnegotiability on March 27, 1989, although the record does not indicate the contents of that request. On April 20, 1989, the Union again requested an allegation, but only with regard to sections 9, 10 and 19. By letter dated April 27, 1989, the Agency provided the Union with an allegation of nonnegotiability with regard to several drug testing proposals, including sections 9 and 10, but not section 19. The Agency's letter indicated that it was in response to the Union's requests of October 20, 1988, and March 27, 1989, but the letter did not reference the Union's request of April 20, 1989. The Union's petition for review was hand-delivered to the Authority on May 25, 1989.

The Agency argues that the petition for review as to the proposals referenced as sections 9 and 10 is untimely based on the dates of the Union's requests for allegations of nonnegotiability and the Agency's response thereto. The Agency notes that the Union requested an allegation of nonnegotiability from the Agency concerning sections 9 and 10 on October 20, 1988, and again on April 20, 1989, and that the Agency responded, in writing, on April 27, 1989. According to the Agency, the Union's petition was filed more than 15 days after the date of the Agency's written allegation and more than 15 days from the date the Union states that it received the written allegation on May 4, 1989.

The Union argues that the petition was timely filed for a number of reasons. The Union states that in a letter to the Authority dated May 8, 1989, relating to a prior case before the Authority, involving the same parties and other drug testing proposals, the Union questioned the effect of the April 27, 1989, response because it included allegations of nonnegotiability regarding proposals not requested by the Union on March 27, 1989.(1) Those proposals included sections 9 and 10. In that letter, the Union also requested an extension of time for filing a petition for review if the Authority determined the April 27 response to be a valid allegation of nonnegotiability. The Union now argues that, as no extension was granted, the Authority apparently did not view the Agency's response as being a valid declaration of nonnegotiability with regard to sections 9 and 10. The Union also argues that it "diligently pursued its case and relies on the equitable principle of estoppel to dismiss the [A]gency's contentions." Union Response at 4. Finally, the Union raises various other arguments to support its view that the petition is timely. The arguments relate to: the date on which the Union claims the petition for review was initiated; the date on which the Union states it requested an allegation from the Agency in this case; the timeliness of the Agency's response to the Union's October 20, 1988, and March 27, 1989, requests for written allegations of nonnegotiability; and the applicability of the Authority's Rules and Regulations in providing additional days for the mailing of documents when computing filing dates.

For the following reasons, we find that the petition for review with regard to the proposals referenced as sections 9 and 10 was untimely filed, and must be dismissed on that basis. Inasmuch as the petition for review of the proposal concerning section 19 was withdrawn by the Union, we need not make any further references or findings with regard to that proposal.

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 of nonnegotiability. 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. In the absence of a postmarked envelope or other evidence bearing the actual service date, the date on an allegation is presumed to be the date on which it is served. American Federation of Government Employees, AFL-CIO, Local 2608 and Department of Health and Human Services, Social Security Administration, Santurce Branch Office, Puerto Rico, 33 FLRA 873, 874 (1989). The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).(2) See also International Association of Fire Fighters, Local F-33 and U.S. Department of the Navy, Naval Air Station, San Diego, California, 37 FLRA 460, 461 (1990). Any document filed with the Authority, including a petition for review of negotiability issues, must be filed with the Authority's Docket Room in Washington, D.C. 5 C.F.R. § 2429.24(a).

In order to address the timeliness of the petition for review, we need to ascertain when the Union requested an allegation of nonnegotiability and whether the Agency's April 27 response constituted a written allegation within the meaning of 5 C.F.R. § 2424.3.

The Union claims that "the instant petition was initiated on April 24, 1989," and, further, "the record clearly indicates, the [U]nion's request for allegations from the [A]gency in this case is dated May 8, 1989." Union Response at 6, 7. The record does not support these contentions. Rather, the record indicates that the Union initially requested a written allegation from the Agency on October 20, 1988. Included in this request were sections 9 and 10. No written allegation was provided by the Agency and no petition for review was filed by the Union. The Union again requested a written allegation on March 27, 1989, apparently as to other proposals. There was no response provided by the Agency or petition for review filed by the Union. Finally, the Union again requested a written allegation concerning sections 9 and 10 on April 20, 1989. On April 27, 1989, the Agency responded and declared the proposals referenced as sections 9 and 10 to be nonnegotiable.

We find that the Agency's April 27, 1989, response constituted a written allegation of nonnegotiability within the meaning of 5 C.F.R. § 2424.3, with regard to sections 9 and 10. We view as irrelevant the Agency's failure to reference the Union's April 20 request in the April 27 response. It is clear from the Agency's response that the declaration of nonnegotiability was provided in response to the proposals referenced as sections 9 and 10. It is also clear that the language of those proposals was unchanged from the October 20, 1988, request to the April 20, 1989, request. Therefore, whether the Agency was responding to the October 20, 1988, request or the April 20 request, the April 27 allegation responds to the actual language of the proposals designated as sections 9 and 10.

We reject the Union's assertion that the Agency's response was untimely filed. The Agency was not obligated to provide a written allegation within any time limits established under the Authority's Rules and Regulations. Instead, where a union requests an allegation and does not receive one in writing within 10 days after receipt of the request, the union may file a petition for review at any time after the expiration of the 10-day period. Here, for example, the Union could have filed a petition for review as early as 10 days following receipt by the Agency of the Union's October 20, 1988, request, in the absence of a written declaration provided by the Agency. In cases where a union files a petition for review in the absence of an agency response, the Authority views the agency's failure to respond as constituting a constructive declaration of nonnegotiability that gives rise to a right of appeal to the Authority under 5 C.F.R. § 2424.3. See American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 372 (1990). However, as stated above, if the agency does provide a written allegation, the union then has 15 days after service of that allegation in which to submit a petition for review. 5 C.F.R. § 2424.3.

Having determined that the April 27 response constituted a valid declaration of nonnegotiability under the Authority's Rules and Regulations with regard to the proposals referenced as sections 9 and 10, we next address the timeliness of the Union's petition for review.

Presuming that the Agency's written allegation was deposited in the U.S. mail on April 27, the petition for review had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than May 17, 1989, in order to be considered timely filed. 5 C.F.R. §§ 2424.3, 2429.21(b) and 2429.22. The Union's petition for review was hand-delivered to the Authority's Docket Room on May 25, 1989. Thus, the petition was not timely filed. Even if there were evidence that the written allegation was delivered in person to the Union on May 4, 1989, the date on which the Union states it received the allegation, the petition would still be untimely. To have been timely filed in that instance, the petition would have been due in the Authority's Docket Room on May 19, 1989. 5 C.F.R. §§ 2424.3 and 2429.21(b). Clearly, under either calculation, the Union's petition for review, filed on May 25, 1989, was untimely filed. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 890 (D.C. Cir. 1982) ("[T]he statutory time limits for filing union appeals, agency statements, and union responses must be strictly observed."). Contrary to the Union's assertion that the petition is timely because the Authority's Rules and Regulations provide additional days for filing purposes, the appropriate regulatory provisions have been considered in computing the filing dates set forth above.

Finally, the Union's reliance on the equitable principle of estoppel as a basis on which to dismiss the Agency's contentions concerning the timeliness of the petition is misplaced. Although it is not clear whether the Union's argument relates to conduct by the Agency or to conduct of the Authority, the argument lacks merit in either case. If the argument is based on the failure of the Agency to respond to the Union's October 1988 and March 1989 requests in a timely manner, as we stated above, the Agency was not obligated to provide a response under the Authority's Rules and Regulations. Also, we have found that the Agency's April 27 response constituted a valid written allegation of nonnegotiability. Consequently, there is no basis on which to support the Union's assertion with regard to the Agency's conduct.

Similarly, there is no basis on which to sustain the Union's argument if it pertains to the absence of a response by the Autho