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35:1089(118)NG - - AFGE Local 2047 and DOD, Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia - - 1990 FLRAdec NG - - v35 p1089

[ v35 p1089 ]
The decision of the Authority follows:

35 FLRA No. 118




Local 2047










May 11, 1990

The Union has filed a petition for review of negotiability issues in the above-referenced case. The Agency filed a motion to dismiss the petition. For the following reasons, the petition for review is dismissed as untimely filed.

A petition for review of negotiability issues must be filed with the Authority within 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. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d). See also Hawaii Federal Employees Metal Trades Council, AFL-CIO and Pearl Harbor Naval Shipyard, 23 FLRA 534 (1986).

The two methods for filing documents with the Authority are by mail (U.S. Postal Service) or in person (party, agent or delivery service). 5 C.F.R. § 2429.24(e). If "the filing is by personal delivery, it shall be considered filed on the date it is received by the Authority[.]" 5 C.F.R. § 2429.21(b). Any document filed with the Authority, including a petition for review of negotiability issues, must be filed in the Authority's Docket Room in Washington, D.C. 5 C.F.R. § 2429.24(a).

In a letter to the Agency dated August 8, l989, the Union requested a written allegation of nonnegotiability with respect to the contract language it proposed. Petition for Review, Attachment 5. The Agency responded by letter dated August 16, l989.(*) A notation at the bottom of the letter signifies that the letter was received by the Union on the same day. Petition for Review, Attachment 6. Accordingly, a 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 August 31, 1989. See 5 U.S.C § 7117(c)(2); 5 C.F.R. § 2424.3.

The Union sent its petition for review to the Authority by Federal Express on August 31, 1989. The petition was received by the Authority on September 1, 1989. As the petition for review was neither postmarked by the U.S. Postal Service nor received in person at the Authority's Docket Room prior to the close of business on August 31, 1989, the petition for review is untimely filed.

As noted previously, the time limit for filing a petition for review of negotiability issues may not be extended or waived. Accordingly, as the petition for review was not timely filed, the petition for review is dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office

(If blank, the decision does not have footnotes.)

*/ The Union asserts that the Agency's August 16, 1989, letter is not an allegation of nonnegotiability. However, the letter was sent in response to the Union's request for an allegation of nonnegotiability, and the Union treated it as such by filing a petition for review. Further, an allegation of nonnegotiability, or a failure to respond to a request for such an allegation, is a prerequisite to filing a petition for review. See 5 U.S.C. § 7117(c)(1); 5 C.F.R. § 2424.1. See also American Federation of State, County, and Municipal Employee, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983).