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38 FLRA NO. 47

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCALS 642, 1911, 1966 AND 2024

(Union)

and

U.S. DEPARTMENT OF INTERIOR

BUREAU OF LAND MANAGEMENT

OREGON STATE OFFICE

(Agency)

0-NG-1808

ORDER DISMISSING PETITION FOR REVIEW

November 28, 1990

The Union has filed a petition for review of negotiability issues in the above-captioned case. The petition for review is untimely and must be dismissed.

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. An agency head's disapproval of a locally negotiated collective bargaining agreement constitutes an allegation of nonnegotiability for the purpose of filing a petition for review. See Philadelphia Metal Trades Council and Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 33 FLRA 849 (1989), petition for reconsideration denied, 35 FLRA 588 (1990). 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).

On September 18, 1989, the Agency and the Union executed a Memorandum of Understanding (MOU) addressing the impact and implementation of the Agency's Drug-Free Workplace Policy. On October 12, 1989, the Agency disapproved seven sections of the MOU. The Agency head's disapproval was served in person on Locals 642, 1911 and 2024 on October 17, 1989, and in person on Local 1966 on October 18, 1989. See Agency Motion to Dismiss Union's Petition for Review as Untimely at 3.

Although the Union acknowledges that the Agency head's disapproval was served on Locals 642, 1911 and 2024, the Union claims that the Agency head's disapproval was never served on Local 1966. The Union also claims that the Agency head's disapproval was not served on its designated representative of record.

As to the Union's first claim, the Agency submitted proof of service on Local 1966 in the form of a copy of the Agency head's disapproval signed as received by an official of Local 1966 on October 18, 1989. See Agency Motion to Dismiss Union's Petition for Review at Exhibit C. As to the Union's second claim, that the Agency head's disapproval was not served on the Union's designated representative of record, the Union has not established that disapproval of the MOU only could be served on a particular named Union official. That is, nothing in wording of the MOU constitutes an explicit restriction on the Union officials who could be served with a disapproval of the MOU. Further, the Union has not submitted any other evidence establishing that the Agency agreed to serve its disapproval of the MOU only on specified Union officials.

Consequently, the Agency's personal service on Locals 642, 1911 and 2024 on October 17, 1989, and on Local 1966 on October 18, 1989, constituted service on the exclusive representative for purposes of: (1) disapproving the MOU within 30 days after it was executed as required by section 7114(c)(2) of the Statute; and (2) starting the 15-day time limit for the Union to file a petition for review of such disapproval with the Authority. See Federal Firefighters Association, Local 58 and Department of the Air Force, Otis Air National Guard, Massachusetts, 33 FLRA 225 (1988), motion for reconsideration denied, 34 FLRA 855 (1990).

Because the Agency head's disapproval of the MOU was personally served on Locals 642, 1911 and 2024 on October 17, 1989, any petition for review of negotiability issues filed on behalf of those locals had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than November 1,1989. Further, because the Agency head's disapproval of the MOU was personally served on Local 1966 on October 18, 1989, any petition for review of negotiability issues filed on behalf of Local 1966 had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than November 2, 1989. Although the Union's petition for review was dated November 2, 1989, it was filed (postmarked) on November 3, 1989. Therefore, the Union's petition for review was untimely filed.

Accordingly, the Union's petition for review is dismissed.

For the Authority.

___________________________
Alicia N. Colunma
Director, Case Control

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

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