43:1353(107)NG - HHS, SSA, OFFICE OF HEARINGS AND APPEALS, REGION II NEW YORK, NEW YORK and AFGE, LOCAL 1760 -- 1992 FLRAdec NG

  43 FLRA NO. 107

         U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
                SOCIAL SECURITY ADMINISTRATION
                OFFICE OF HEARINGS AND APPEALS
                          REGION II
                      NEW YORK, NEW YORK
                           (Agency)

                             and

         AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 1760
                            (Union)

                          0-NG-2007

                 ORDER DISMISSING PETITION FOR REVIEW

                       January 31, 1992

     The Union has filed a petition for review of negotiability
issues in the above-captioned case. On January 8, 1992, 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 Agency filed a statement of
position on the Union's petition. The Union filed a response  */  to
the Authority's January 8 Order. However, for the reasons set out
below, the Union's petition for review is untimely and 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 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 record in this case indicates that the parties executed
a Memorandum of Understanding on October 25, 1991, and submitted
it to the Agency head for review. By memorandum dated November
25, 1991, the Agency disapproved one provision of the Memorandum
of Understanding. In its statement of position, the Agency
furnished a postmarked, certified mail receipt showing that the
Agency's memorandum of disapproval was served on the Union by
certified mail on November 25, 1991. Therefore, in order to be
considered timely, a petition for review of the Agency's
disapproval had to be either postmarked by the U.S. Postal
Service or received in person at the Authority no  later than
December 16, 1991. 5 C.F.R. 2424.3. The Union's petition for
review was filed (postmarked) on December 17, 1991.

     The Union's response to the Authority's January 8, 1992
Order includes an affidavit concerning the date the Union
received the Agency's November 25, 1991 memorandum of
disapproval. However, the date of receipt of an agency's
disapproval is not controlling in the determination of the
timeliness of a petition for review. Instead, the date of service
of the disapproval--the date that the disapproval is deposited in
the U.S. mail or is delivered in person--controls. 5 C.F.R.
2424.3 and 2429.27(d).

     The Union's petition for review was not filed in the
Authority's Docket Room within the prescribed time limit. As the
time limit for filing a petition for review may not be extended
or waived by the Authority, the Union's petition is dismissed.

For the Authority.

                         Alicia N. Columna
                         Director, Case Control Office


FOOTNOTES

     Footnote */ The Union's response to the Authority's January
8, 1992 Order was not timely filed. However, the Union has
requested a waiver of the expired time limit on the basis that it
received the Authority's Order after the time limit to respond
had expired. The Union's request is granted and its response has
been accepted. 5 C.F.R. 2429.23(b).