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20 FLRA No. 18

AMERICAN FEDERATION OF STATE, COUNTY 
AND MUNICIPAL EMPLOYEES, LOCAL 2478 
Union 

and 

U.S. COMMISSION ON CIVIL RIGHTS 
Agency

                                      Case No. 0-NG-1140

                  ORDER DISMISSING PETITION FOR REVIEW

   This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute and section
2424.1 of the Authority's Rules and Regulations on a petition for review
of negotiability issues filed by the Union on June 5, 1985.  For the
reasons indicated below, it has been determined that the Union's
petition for review must be dismissed.

   Under section 7117(c)(2) of the Statute and section 2424.3 of the
Authority's rules and regulations, the time limit for filing a petition
for review of negotiability issues is 15 days after the date the
agency's allegation that the duty to bargain does not extend to the
matter proposed to be bargained is served on the exclusive
representative.  In accordance with section 2429.27(b) of the
Authority's regulations, service of any document or paper, including
documents and papers served by one party on another, shall be made by
certified mail or in person;  that section of the rules further provides
that a return post office receipt or other written receipt executed by
the party or person served shall be proof of service.  Additionally,
section 2429.27(d) provides that the date of the service shall be the
day when the matter served is deposited in the U.S. mail or is delivered
in person.

   In this case, the agency's allegation of nonnegotiability is dated
May 14, 1985, and the agency asserts that the allegation was delivered
in person to the Union's president on that date.  Accordingly, the
agency maintains that the Union's petition for review, which was filed
with the Authority on June 5, 1985, was untimely under the Authority's
rules.  The Union contends that the petition was timely filed inasmuch
as the agency's allegation was served by interoffice mail and not
delivered until "on or about May 22, 1985."

   The Authority finds that the agency has failed to satisfy the
Authority's regulatory requirements with respect to service of its
allegation of nonnegotiability.  In this regard, the agency's
representative states that the agency's chief negotiator and its
personnel officer "are prepared to testify" that the allegation was
delivered in person to the Union's president on May 14, 1985.  Such
testimony, however, would not constitute proof of service since section
2429.27 of our rules provides that when personal service is made a
"written receipt executed by the party or person served shall be proof
of service." The agency neither offers such proof nor asserts that such
exists.

   Similarly, the Union offers no substantiation for its claim that the
allegation was served by interoffice mail.  Even if such substantiation
exists, however, it would indicate only that the allegation was not
served as required by section 2429.27(b), that is, it was not delivered
in person or by certified mail.  Therefore, if the allegation was served
by interoffice mail, the Union was not required to timely file a
petition with the Authority in order to preserve its rights to contest
the agency's allegation of nonnegotiability because the allegation was
not properly served on it.  Moreover, unlike the situation wherein a
Union may petition the Authority for review of negotiability issues in
connection with an unrequested allegation of nonnegotiability as long as
the petition is timely filed, /1/ in the instant case there is no proof
of proper service to enable the Authority to make the necessary
timeliness determination.

   Accordingly, since neither party has demonstrated that the agency's
allegation of nonnegotiability was served on the Union in accordance
with our regulations, the Union's petition for review in this case is
hereby dismissed.  /2/

   For the Authority.

   Issued, Washington, D.C., September 13, 1985

                                      (s) HAROLD D. KESSLER
                                      Harold D. Kessler
                                      Managing Director for Case
                                      Processing






--------------- FOOTNOTES$ ---------------


   /1/ See, e.g., American Federation of Government Employees, AFL-CIO
and U.S. Environmental Protection Agency, 15 FLRA No. 96 at n.1 (1984).


   /2/ This dismissal is without prejudice.  That is, if the matter
proposed to be negotiated continues in dispute between the parties, an
allegation may be requested in writing and a petition for review duly
filed by the Union with the Authority in accordance with sections 2424.3
and 2429.27 of the Authority's rules and regulations. 

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