40:0233(24)AR - - Army Finance and Accounting Center, Indianapolis, IN and AFGE Local 1411 - - 1991 FLRAdec AR - - v40 p233
[ v40 p233 ]
The decision of the Authority follows:
40 FLRA No. 24
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in 38 FLRA 1345 (1991) (Member Talkin dissenting). That decision set aside an arbitrator's award because section 7116(d) of the Federal Service Labor-Management Relations Statute (the Statute) barred consideration of the grievance in that case. The Agency filed an opposition to the Union's motion for reconsideration, contending that the Union's motion should be dismissed as untimely filed.
For the following reasons, we will dismiss the Union's motion as untimely filed.(*)
II. Analysis and Conclusions
The Union filed a motion for reconsideration of the Authority's decision in 38 FLRA 1345 (1991) (Member Talkin dissenting). That decision set aside an arbitrator's award because section 7116(d) of the Federal Service Labor-Management Relations Statute barred consideration of the grievance in that case.
Section 2429.17 of the Authority's Rules and Regulations provides that a motion for reconsideration must be filed "within ten (10) days after service of the Authority's decision or order." Section 2429.27 provides that the "date of service or date served shall be the day when the matter served is deposited in the U.S. mail or is delivered in person."
The Authority's decision in 38 FLRA 1345 was issued on January 8, 1991 and was deposited in the U.S. mail on that date. Whenever a party is served by mail, 5 days are added to the prescribed period for filing. 5 C.F.R. § 2429.22. Therefore, to be timely, a motion for reconsideration had to have been postmarked by the U.S. Postal Service or received in person at the Authority no later than January 23, 1991. See 5 C.F.R. § 2429.22. However, the Union's motion for reconsideration was filed (postmarked) on February 6, 1991 and, thus, is untimely.
The Authority may waive the time limits applicable to motions for reconsideration in extraordinary circumstances. See 5 C.F.R. § 2429.23(b). The Union argues that its motion for reconsideration "was received by the Representative of [the] 'Union' on or about Tuesday 22 January 1991 . . . . [because the] Representative was out of the State of Indiana about 7 to 19 January 1991." Motion to Reconsider at 1. Because the Union's representative did not receive the Authority's decision until January 22, 1991, the Union contends that its motion for reconsideration was not due until February 6 and, therefore, is timely. Id.
The Union's argument that its attorney was out of town at the time that he was served with the Authority's decision does not establish extraordinary circumstances which would warrant waiving the expired time limit for filing a request for reconsideration. In this regard, we note that the Union President was also served with the Authority's decision. Therefore, the Union may not claim that it was unaware of the Authority's decision. Moreover, the Union has not shown that the fact that its attorney was out of town prevented him from receiving a copy of the decision or from timely filing a motion for reconsideration. See Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 1235 (1988).
Accordingly, the Union's motion for reconsideration is not properly before us.
The Union's motion for reconsideration is dismissed.
(If blank, the decision does not have footnotes.)
*/ The Union filed a request for an extension of time to file a legal memorandum in support of its motion for reconsideration. As the Union's motion for reconsideration is untimely, we deny the Union's request for an extension of time to file additional material. The Union also filed a motion f