48:0917(98)CU - - EEOC, Washington, DC and National Council of EEOC Locals No. 216, AFGE - - 1993 FLRAdec CU - - v48 p917



[ v48 p917 ]
48:0917(98)CU
The decision of the Authority follows:


48 FLRA No. 98

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

WASHINGTON, D.C.

(Agency)

and

NATIONAL COUNCIL OF EEOC LOCALS NO. 216

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Labor Organization/Petitioner)

WA-CU-20470

WA-CU-20471

ORDER DISMISSING APPLICATION FOR REVIEW

November 19, 1993

The Agency has filed an application for review of the Regional Director's Decision and Order in the above-captioned case. On October 22, 1993, the Authority issued an Order directing the Agency to show cause why its application should not be dismissed as untimely filed. The Agency filed a timely response to the Authority's Order. For the reasons set out below, the Agency's application is untimely and must be dismissed.

The Authority's Regulations provide that "[a] party may file an application for review of the Regional Director's Decision and Order with the Authority within sixty (60) days of the date of such action." 5 C.F.R. 2422.17(a). The time limit for filing an application for review may not be extended or waived. 5 C.F.R. §§ 2422.17(a) and 2429.23(d).

The Regional Director issued his Decision and Order on August 16, 1993. Any application for review had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than October 15, 1993, in order to be considered timely. The Agency's application for review was filed (postmarked) on October 18, 1993.

In its response to the Authority's October 22, l993, Order to Show Cause, the Agency asserts that its application was mailed on October 15, l993, but that contract employees in its mailroom erroneously post-dated the Agency's application. Alternatively, the Agency contends that the meter postmark is not an official U.S. Postal Service postmark and should not be determinative of the date of filing in this case.

The Agency's assertion, supported by an affidavit, that it mailed its application for review on October 15, l993, does not constitute proof of service pursuant to section 2429.27(b) of the Regulations. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877,879 (1990).

In addition, postage meters must be licensed by the U.S. Postal Service See U.S. Postal Service Domestic Mail Manual, §§ 144.14, 144.212. Under U.S. Postal Regulations, the date shown in a meter postmark is presumed to be the actual date of deposit, unless the U.S. Postal Service indicates that the date is incorrect. See U.S. Postal Service Domestic Mail Manual, §§ 144.532, 144.54, (Sept. 1992). See also National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 372 (1993). In this case, there is no evidence to show that the U.S. Postal Service determined that the date on the envelope containing the Agency's application was incorrect. We conclude, therefore, based on the date on the envelope that the Agency's application for review was filed on October 18, l993.

Accordingly, as the Agency's application for review was not timely filed, it is dismissed.

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