34:0076(18)CA - - Treasury, Customs Service and Customs Service Region IX, Chicago, IL and NTEU - - 1989 FLRAdec CA - - v34 p76



[ v34 p76 ]
34:0076(18)CA
The decision of the Authority follows:


34 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

AND

U.S. CUSTOMS SERVICE REGION IX

CHICAGO, ILLINOIS

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

5-CA-30046

(17 FLRA 221)

(25 FLRA 161)

ORDER DENYING MOTIONS FOR RECONSIDERATION AND

WAIVER OF EXPIRED TIME LIMITS

December 29, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on motions filed by the National Treasury Employees Union (the Union) seeking reconsideration of the Authority's Order of July 18, 1989 and a waiver of the time limits for filing exceptions to the Administrative Law Judge's decision.

The July 18, 1989 Order concluded that the Union's exceptions to the decision and recommended Order of the Administrative Law Judge were not filed within the time limit established in the Authority's Regulations. The Order stated that the exceptions had to have been filed by June 19, 1989. The Union's exceptions were filed (postmarked) on June 20, 1989. Therefore, pursuant to section 2423.29(a) of the Authority's Rules and Regulations, the Authority adopted, without precedential significance, the findings, conclusions, and recommendations in the decision and order of the Administrative Law Judge.

For the following reasons, we conclude that the Union has not established "extraordinary circumstances" warranting either reconsideration of the Authority's Order or waiver of the expired time limits. Therefore, we deny the Union's motions.

II. The Union's Motions

In its motions for reconsideration and waiver of expired time limits, the Union notes that it "has no grounds to challenge the FLRA's assertion that the exceptions bore a July 20 postmark" and that it "does not . . . know the reason" why the document was postmarked June 20 rather than June 19. Motion for Reconsideration at 2, 5. Nevertheless, the Union contends that because its "standard practices were followed in filing these exceptions, their failure to produce a properly postmarked document was an extraordinary event" within the meaning of sections 2429.17 and 2429.23(b) of the Authority's Rules and Regulations. Id. at 3. The Union cites U.S. Department of Labor, Mine Safety and Health Administration and National Council of Field Labor Locals, American Federation of Government Employees, 32 FLRA 302 (1988), in which the Authority accepted the late submission of the union's exceptions because the original submission had been lost in the mail. The Union argues that it is in "a similar position here." Motion for Reconsideration at 6.

The Union also contends that there are "equitable considerations" which the Authority should take into account in determining whether to grant the Union's motions. Id. Specifically, the Union argues that: (1) it was "diligent" in preparing and filing its exceptions; (2) granting its request "will in no way harm" the Respondent; and (3) "there are no statutory or policy reasons which counsel in favor of a strict construction" of the Authority's rule because the time limits for filing exceptions to an Administrative Law Judge's decision "are a matter purely internal" to the Authority. Id. at 6, 7.

The Union notes that the Respondent opposes the Union's motions. The Respondent did not file an opposition to the Union's motions for reconsideration and waiver of expired time limits.

III. Discussion

We conclude that the Union's motions provide no basis on which to grant reconsideration or a waiver of the expired time limits. Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. Section 2429.23(b) permits the Authority to waive an expired time limit in "extraordinary circumstances." Here, however, the Union has not established "extraordinary circumstances" within the meaning of sections 2429.17 or 2429.23(b).

The Union does not challenge the finding that the Union's exceptions were postmarked June 20 rather than June 19. Instead, the Union argues that the failure of its internal mail room procedures is an extraordinary circumstance warranting reconsideration. The Union also argues that there are "equitable considerations" which the Authority should consider in determining whether to grant the Union's motions. Motion for Reconsideration at 6.

We find that the failure of the Union's mailing procedures is not an extraordinary circumstance warranting either reconsideration of the Authority's Order or a waiver of the time limits to file exceptions to the Administrative Law Judge's decision. See Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 366, 367-68 (1988) ("extraordinary circumstances" not found where the union's failure to file timely exceptions was due to its own internal actions).

Moreover, as to the Union's contention that "equitable considerations" warrant the granting of its motions, we do not find the Union's arguments persuasive. We do not dispute the Union's claim that it acted diligently in this case. We note, however, that the Union previously had requested and been granted a 14-day extension of time beyond the date on which exceptions would otherwise have been due. In these circumstances, we conclude that equitable considerations do not counsel in favor of excusing the Union's failure to file exceptions to the Administrative Law Judge's decision within the extended time limits.

For the foregoing reasons, we conclude that the Union's assertions do not establish "extraordinary circumstances" within the meaning of the Authority's Rules and Regulations.

Accordingly, we deny the Union's motions.

IV. Order

The Union's motions for reconsideration and waiver of expired time limits are denied.