American Federation of Government Employees, Local 4052 (Union) and United States Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, Puerto Rico (Agency)
*Decision updated by errata issued April 20, 2011
65 FLRA No. 150
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
METROPOLITAN DETENTION CENTER
GUAYNABO, PUERTO RICO
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
April 13, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute). The appeal involves the negotiability of one proposal concerning the entrances that staff members may use to access a correctional institution. The Agency filed a statement of position (SOP), to which the Union filed a response (response). The Agency filed a reply to the response (reply).
For the reasons that follow, we find that the proposal is outside the duty to bargain. Accordingly, we dismiss the petition for review (petition).
II. Preliminary Issue
Section 2429.24(a) of the Authority’s Regulations provides that documents must be filed with the Authority “between 9 a.m. and 5 p.m., Monday through Friday (except Federal holidays).” 5 C.F.R. § 2429.24(a). Therefore, consistent with this regulation, to be accepted for filing on a particular day, documents must be received by the Authority before 5 p.m. The Authority’s Regulations also require that a response to an agency’s statement of position be filed “in person, by commercial delivery, by first-class mail, or by certified mail.” 5 C.F.R. § 2429.24(e).
The Union’s response had to be filed with the Authority by January 18, 2011. Order to Show Cause at 2. The Union transmitted its response by facsimile (fax) dated January 18. Id. The Authority issued an order stating that the response was not received until January 19. Id. The order also stated that fax transmission is not an authorized method of filing a response to an SOP. Id. Accordingly, the Authority directed the Union to show cause why it should consider the response. Id.
In its response to the order, the Union concedes that the response was required to be filed by January 18, but argues that extraordinary circumstances exist to warrant consideration of the response because: (1) the Union representative “did not have sufficient monetary funds” to submit the response by certified mail to the Authority and each Agency representative; and (2) the response was faxed to the Authority and was served by fax or certified mail on the Agency representatives on January 18. Response to Order to Show Cause at 2.
Requests for waivers of time limits may be granted only in “extraordinary circumstances.” 5 C.F.R. § 2429.23. In addition, it is well established that parties filing documents with the Authority are “responsible for being knowledgeable” of the statutory and regulatory filing requirements. AFGE, Local 2065, 50 FLRA 538, 539-40 (1995).
With regard to the Union’s claim that it filed the response on January 18, the transmission report that accompanied the response indicates that it was transmitted after 5 p.m. on that date. The Union does not address the regulatory requirement that documents be filed before 5 p.m., or claim extraordinary circumstances for failure to satisfy that requirement. Accordingly, the Union does not establish extraordinary circumstances for its failure to timely file the response.
With regard to the Union’s claim concerning the cost of filing by certified mail, as stated above, § 2429.24(e) of the Authority’s Regulations allows a union to file a response in several different ways; it does not require a union to file by certified mail. As such, the Union’s argument concerning the costs of certified mail does not demonstrate extraordinary circumstances for its failure to comply with the Authority’s filing requirements. Moreover, the Union’s remaining claims do not provide a basis for excusing the Union’s failure to comply with these filing requirements.
For the foregoing reasons, we do not consider the response.
With regard to the reply, § 2424.26(a) of the Authority’s Regulations provides that the “purpose of the agency’s reply is to [respond to] any facts or arguments made for the first time in the [union’s] response.” As we do not consider the response, we also find that there is no reason for the Authority to consider the reply. See IFPTE, Local 29, Goddard Eng’rs, Scientists & Technicians Ass’n, 61 FLRA 382, 383 (2005).
Responsibilities: All staff assigned to Institution Entrances shall refer to the Institutional Post Orders for the proper equipment related to their duties in these assigned areas.