39:0519(42)CO - - AFGE Local 1457 and Letterman Army Medical Center, San Francisco, CA - - 1991 FLRAdec CO - - v39 p519



[ v39 p519 ]
39:0519(42)CO
The decision of the Authority follows:


39 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1457

(Respondent)

and

U.S. DEPARTMENT OF THE ARMY

LETTERMAN ARMY MEDICAL CENTER

SAN FRANCISCO, CALIFORNIA

(Charging Party)

9-CO-90016

36 FLRA 253 (1990)

DECISION AND ORDER ON REQUEST FOR RECONSIDERATION

February 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on the Respondent's request for reconsideration of the Authority's order in 36 FLRA 253 (1990). That order dismissed the Respondent's exceptions to the attached decision of the Administrative Law Judge as untimely filed. Although the General Counsel filed an opposition to the Respondent's exceptions in 36 FLRA 253, the General Counsel did not file an opposition to the Respondent's request for reconsideration.

For the following reasons, we grant the Respondent's request for reconsideration. On the merits, we adopt the Judge's findings, conclusions, and recommended order, as modified.

II. The Request for Reconsideration is Granted

A. The Order in 36 FLRA 253

As discussed in 36 FLRA 253, to be timely, the Respondent's exceptions had to be filed in the Authority's docket room on or before June 4, 1990. Consistent with section 2429.24(e) of the Authority's Rules and Regulations, the filing could be accomplished by either depositing the exceptions in the U.S. mail or by delivering the exceptions in person to the docket room by that date.

The Respondent mailed its exceptions to the Authority's Office of Administrative Law Judges (OALJ). The OALJ received the exceptions on June 7, 1990, and delivered them to the Authority's docket room on that date. As the exceptions were mailed to the OALJ, however, the exceptions were considered to have been filed in the docket room by personal delivery. Accordingly, the exceptions were considered to have been filed on the date they were received in the docket room, June 7, and were dismissed as untimely filed.

B. The Request for Reconsideration

The Respondent argues that its exceptions were timely filed because (1) the exceptions were deposited in the mail on June 4, 1990; (2) it was instructed by an Authority agent in a regional office to mail the exceptions to the OALJ; and (3) it was informed by an Authority agent in the docket room that mailing the exceptions to the OALJ would not prevent the Authority from accepting the exceptions.

C. Analysis and Conclusions

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. We conclude that the Respondent has established extraordinary circumstances here.

We note, at the outset, that the notice of transmittal accompanying the Judge's decision clearly and unambiguously states that, to be timely, exceptions had to be filed in the Authority's docket room by June 4, 1990. The transmittal notice set forth the correct address for the mailing of exceptions. The Authority's Rules and Regulations also clearly state that all "documents filed or required to be filed with the Authority . . . shall be filed with the . . . Docket Room[.]" 5 C.F.R. º 2429.24. Moreover, "parties dealing with the Federal Government are charged with knowledge of and are bound by statutes and lawfully promulgated regulations despite reliance to their detriment on incorrect information received from Government agents or employees." U.S. Department of the Interior, Bureau of Indian Affairs, Billings Area Office, Billings, Montana and National Federation of Federal Employees, Local 478, 39 FLRA No. 15 (1991), slip op. at 3 (citations omitted) (Interior).

The Authority may, however, extend or waive, for equitable or other reasons, the time limits applicable to the filing of exceptions to Judge's decisions in unfair labor practice cases. See 5 C.F.R. º 2429.23. See also Department of the Treasury, U.S. Customs Service and U.S. Customs Service Region IX, Chicago, Illinois and National Treasury Employees Union, 34 FLRA 76, 77-78 (1989) (Customs). Compare Interior, 39 FLRA No. 15, slip op. at 3. In this case, we find it appropriate to waive the time limit and accept and consider the Respondent's exceptions.

As noted previously, it is uncontroverted that the Respondent was advised by an Authority agent to mail its exceptions to the OALJ. The Respondent complied with the advice of the agent and timely filed its exceptions with the OALJ. Further, the OALJ is a component of the Authority's national office and is located at the same address as the Authority. In essence, therefore, the Respondent's sole deficiency was to address its exceptions to the wrong room at the Authority. As the exceptions were timely filed, albeit at the wrong room at the Authority, there was no delay in the Authority's receipt of the exceptions.

These circumstances are unique and, in our view, establish extraordinary circumstances, within the meaning of section 2429.17 of the Authority's Rules and Regulations. Compare Customs, 34 FLRA at 78. Accordingly, construing the Respondent's request for reconsideration as a motion for waiver of time limits and noting the absence of any opposition to the Respondent's request, we grant reconsideration of the order in 36 FLRA 253 and waive the time limit applicable to the Respondent's exceptions.

III. The Judge's Decision

The Judge concluded that the Respondent violated section 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to participate in the selection of an arbitrator to resolve a pending grievance filed by the Letterman Army Medical Center.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. In addition, we have examined the entire record and, for the reasons stated by the Judge, agree with the Judge that the Respondent violated the Statute. Accordingly, we adopt the Judge's findings, conclusions, and recommended order, as modified below.(*)

IV. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the American Federation of Government Employees, Local 1457 shall:

1. Cease and desist from:

(a) Refusing or failing to proceed to arbitration on a grievance filed by the Letterman Army Medical Center on April 17, 1989.

(b) In any like or related manner, failing and refusing to comply with its obligations under the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request, proceed to arbitration regarding the grievance filed by the Letterman Army Medical Center on April 17, 1989.

(b) Post at its business offices and its normal meeting places, including all places where notices to members and employees of the Letterman Army Medical Center are customarily posted, copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the American Federation of Government Employees, Local 1457, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members and other employees are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material.

(c) Submit appropriate signed copies of such notices to the Letterman Army Medical Center, for posting in conspicuous places where the unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting.