38:1527(122)AR - - Army, HQ, XVIII Airborne Corps, Fort Bragg, NC and AFGE Local 1770 - - 1991 FLRAdec AR - - v38 p1527



[ v38 p1527 ]
38:1527(122)AR
The decision of the Authority follows:


38 FLRA No. 122

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, XVIII AIRBORNE CORPS

FORT BRAGG, NORTH CAROLINA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1770

(Union)

0-AR-1969

(37 FLRA 877)

ORDER DENYING MOTION FOR RECONSIDERATION

January 16, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Union's request for reconsideration of the Authority's Order Dismissing Exceptions in 37 FLRA 877 (1990). The Agency did not file an opposition to the Union's request.

For the following reasons, we will dismiss the Union's request as untimely filed.

II. Background and the Authority's Order in 37 FLRA 877

The Union filed exceptions to a supplemental award of the Arbitrator denying its motion for attorney fees in connection with an arbitration proceeding. In United States Army Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 35 FLRA 390 (1990), the Authority found that the Arbitrator's denial of the Union's motion was deficient and remanded the matter to the parties to request the Arbitrator to consider the Union's motion under applicable provisions of law and regulation. On reconsideration of the Union's motion, the Arbitrator subsequently issued another supplemental award, again denying the Union's motion. The Union's exceptions to the Arbitrator's subsequent supplemental award were dismissed as untimely filed in 37 FLRA 877 (1990).

In 37 FLRA 877, the Authority determined that the Union's exceptions to the Arbitrator's second supplemental award were not filed within the time limit established by the Authority's Rules and Regulations. Noting that the second supplemental award was dated June 26, 1990, and presuming that the award was served on that date, the Authority found that under sections 2425.1(b), 2429.21(b) and 2429.22 of the Authority's Rules and Regulations, any exceptions to the Arbitrator's supplemental award had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than July 30, 1990, in order to be timely filed. The Authority further determined that, even assuming that the award was served (postmarked) on June 27, 1990, as argued by the Union, any exceptions to the supplemental award would had to have been either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than July 31, 1990, in order to be timely filed.

In reaching its determination, the Authority rejected contentions raised by the Union in its response to an Authority Order to Show Cause why the Union's exceptions to the Arbitrator's second supplemental award should not be dismissed as untimely. In its response, the Union contended that the Arbitrator's second supplemental award was served on June 27, 1990, and that its exceptions to the Arbitrator's second supplemental award were mailed on July 31, 1990. The Authority stated that it received the Union's exceptions on August 7, 1990, and under section 2429.21(b) of the Authority's Rules and Regulations, it presumed that the Union's exceptions were mailed on August 2, 1990, because there was no postmark on the envelope containing the Union's exception.

The Authority stated also that the Union failed to provide evidence to support its assertions that the Arbitrator's award was served on June 27, 1990, and its exceptions were filed on July 31, 1990. The Authority pointed out that section 2429.27(b) of the Authority's Rules and Regulations requires that a return post office receipt or other written receipt executed by the party or person served shall be proof of service. The Authority found that the Union's assertion that it submitted its exceptions to the post office on July 31, 1990, did not constitute proof of service pursuant to section 2429.27(b). Further, noting that the time limit for filing an exception to an arbitrator's award may not be extended or waived by the Authority, the Authority rejected the Union's assertion that the exceptions should be considered timely filed because the Agency's representative "has no objection to the dates that [the Union] supplied [to the Authority]."

Accordingly, the Authority dismissed the exceptions as untimely filed.

III. Request for Reconsideration

The Union requests the Authority to incorporate the Union's response and supporting affidavits to the Authority's Order to Show Cause with its request for reconsideration. Further, the Union contends that its "appeal was perfected on time in accordance with law" and that "[t]he implementation of blind presumptions . . . where reasonable rebuttal has been submitted is unfair and not consistent with justice." Request at 2.

In support of its contention, the Union asserts that "where there is proof that . . . the Arbitrator's Supplemental Award[ ] took six days to be received . . . it is ludicrous to infer that the five-day presumption of mailing has not been rebutted. . . . because the envelope was not furnished which would indicate that the Arbitrator postmarked his Supplemental Award on June 27, 1990, rather than June 26, 1990!" Id. at 1. The Union asserts that "neither the Arbitrator nor the Agency Representative disagreed with the undersigned when he submitted that the Arbitra[t]or's Supplementary Award was actually postmarked on the 27th of June, rather than the 26th." Id. In addition, the Union disputes the Authority's finding that the Union offered no evidence to support its contention that its exceptions were mailed on July 31, 1990. The Union asserts that "[i]t just does not make sense to disregard uncontested averments in favor of presumptions which have clearly been rebutted." Id. at 2.

IV. Analysis and Conclusions

A. The Request for Reconsideration Is Untimely

The Authority issued its Order Dismissing Exceptions in 37 FLRA 877 on October 4, 1990. The Authority's Order was served on the parties by mail on that same date.

The time limit for filing a motion for reconsideration is 10 days after service of the Authority's final decision or order. 5 C.F.R. § 2429.17. The date of service is the day when the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). The Authority's Order was served on the Union by mail on October 4, 1990. Whenever a party is served by mail, 5 days are added to the period for filing a motion for reconsideration. 5 C.F.R. § 2429.22. Further, the last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is neither a Saturday, Sunday, or Federal legal holiday. 5 C.F.R. § 2429.21. Therefore, in order to be timely filed, any motion for reconsideration of the Authority's Order in 37 FLRA 877 had to be either postmarked or hand-delivered to the Authority's Docket Room no later than October 22, 1990. 5 C.F.R. § 2429.21(b), 2429.24(a). The Union's request for reconsideration was postmarked on November 5, 1990. Accordingly, the Union's request for reconsideration is untimely filed.

The Union claims that it received the Authority's Order in 37 FLRA 877 on October 25, 1990, and contends that its request was "timely" submitted within the 10 days provided by the Authority's Rules and Regulations to request the Authority to reconsider the Order in 37 FLRA 877. Request at 1. However, as noted above, the Authority's Rules and Regulations require that any motion for reconsideration of a final Authority decision or order be filed within 10 days of the date of service of the Authority's final decision or order, not within 10 days of the date of receipt of the final decision or order. Further, it is noted that the Union did not request a waiver of the expired time limit to file its request for reconsideration as provided under section 2429.23(b) of the Authority's Rules and Regulations. Therefore, the Union's request for reconsideration is not properly befor