29:0051(5)CA - VA, VA Medical Center, Muskogee, OK and AFGE Local 2250 -- 1987 FLRAdec CA
[ v29 p51 ]
The decision of the Authority follows:
29 FLRA No. 5
VETERANS ADMINISTRATION VETERANS ADMINISTRATION MEDICAL CENTER MUSKOGEE, OKLAHOMA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2250 Union Case Nos. 6-CA-50105 6-CA-50106 (25 FLRA No. 71) (27 FLRA No. 33)
I. Statement of the Case
This case is before the Authority on a notion filed by the Respondent Agency requesting that the Authority: (1) vacate the Order in 27 FLRA No. 33 (1987) dismissing its motion for reconsideration; and (2) grant its motion for reconsideration and request for stay of the Authority's Decision in 25 FLRA No. 71 (1987). For the reasons discussed below, we rescind the Order Dismissing Motion for Reconsideration in 27 FLRA No. 33, and deny the Agency's motion for reconsideration and request for stay of our Decision in 25 FLRA No. 71.
II. Procedural Issue
The Agency's notion for reconsideration of 25 FLRA No. 71 was dismissed because it was found to have been untimely filed. The dismissal order stated, in pertinent part:
(T)he Agency's motion for reconsideration in order to be timely filed had to be either sailed to the national office of the Authority in Washington, D.C., and postmarked by the U.S. Postal Service no later than March 9, 1987, or if filed in person, received at the Authority's national office no later than the [PAGE] close of business on the same date. However, if no postmark date is evident on a mailing, the Authority's Rules (section 2429.21(b)) require the presumption that it was mailed five (5) days prior to receipt. Respondent's motion dated March 9, 1987, was received by the Authority on March 16, 1987. As no postmark date is evident on the "Official Business" envelope containing the motion, it is presumed that the motion was mailed on March 11, 1987 -- five (5) days prior to receipt by the Authority. Therefore, as the Respondent's motion was not filed until March 11, 1987, it was untimely and must be dismissed. (Slip Op. at 2)
The Agency now offers evidence to establish the actual mailing date of its notion for reconsideration. The Agency argues that section 2429.21(b) of the Authority's Rules and Regulations simply creates, in cases where there is no postmark, a rebuttable presumption that mailing occurred 5 days before the Authority's receipt. The Agency maintains that if competent evidence establishes that the actual mailing date was earlier, the submission should be considered filed with the Authority on the actual date of mailing.