42:0160(8)NG - NTEU and IRS -- 1991 FLRAdec NG
[ v42 p160 ]
The decision of the Authority follows:
42 FLRA No. 8
FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C. NATIONAL TREASURY EMPLOYEES UNION (Union) and U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE (Agency) 0-NG-1966 ORDER DISMISSING PETITION FOR REVIEW
September 13, 1991
On August 16, 1991, the Authority issued an Order directing the Union to show cause why its petition for review in the above-captioned case should not be dismissed as untimely filed. The Union filed a timely response to the Authority's Order, the Agency filed a response to the Union's response and the Union filed a supplemental submission. For the reasons set out below, the Union's petition must be dismissed.
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 Agency's allegation is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).
The Agency's written allegation of nonnegotiability is dated July 8, l991. The Union in its response to the Order to Show Cause provided documentation to show that the petition for review was personally delivered to the Union on July 9, l991. Therefore, a petition for review of the Agency's allegation had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than July 24, 1991, in order to be considered timely. 5 C.F.R. § 2424.3. The Union's petition for review was filed (postmarked) with the Authority on July 29, 1991.
The Union asserts that the envelope containing the Union's petition for review was incorrectly postmarked and should have been postmarked July 23, 1991. In support of its assertion, the Union furnished the Authority with: (1) certified mail receipts; and (2) affidavits.
The certified mail receipts furnished by the Union do not contain a postmark by the U.S. Postal Service or any indication that the U.S. Postal service issued the certified mail receipts. The date "7/23/91" was handwritten in the space labeled on the receipt as "Postmark or Date." Without an official U.S. Postal Service postmark on the certified receipts, the Authority cannot accept the receipts as proof of mailing. See United States Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877, 879 (1990). In addition, affidavits, standing alone, are insufficient to establish service of documents. See, for example, American Federation of Government Employees, National Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans Health and Research Administration, Washington, D.C., 39 FLRA 1055, 1058 (1991), request for reconsideration denied, 40 FLRA 195 (1991).
Section 2429.21(b) of the Authority's Rules and Regulations provides that the "date of filing shall be determined by the date of mailing indicated by the postmark date." In this case, the envelope in which the Union's petition for review was mailed contains an illegible postmark. The Union's unsubstantiated assertion that it filed the petition for review on July 23, l991, rather than the postmark date of July 29, l991, is not sufficient to establish date of filing in lieu of a legible postmark.
Accordingly, as the time limit for filing a petition for review of the Agency's allegation of nonnegotiability may not be extended or waived by the Authority, the Union's petition for review in the above-captioned case is dismissed as untimely filed.
For the Authority.
Alicia N. Columna Director, Case Control Office