49:0393(33)UC - - DOD, Stateside Dependents Schools and OEA and Antilles Consolidated Education Association - - 1994 FLRAdec RP - - v49 p393



[ v49 p393 ]
49:0393(33)UC
The decision of the Authority follows:


49 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

STATESIDE DEPENDENTS SCHOOLS

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Labor Organization/Petitioner)

and

ANTILLES CONSOLIDATED EDUCATION ASSOCIATION

(Labor Organization/Intervenor)

WA-UC-20875

_____

ORDER DENYING MOTION FOR RECONSIDERATION

March 7, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion of the Overseas Education Association (OEA) seeking reconsideration of the Authority's Order dismissing the OEA's application for review in the above-captioned case. The Agency did not file an opposition to the motion. For the reasons stated below, OEA's motion for reconsideration will be denied.

II. Background

On October 8, 1993, the Regional Director of the Washington Regional Office issued a Decision and Order dismissing OEA's petition to consolidate 10 bargaining units for which it is the exclusive representative. OEA filed an application for review of the Regional Director's Decision and Order. OEA's application was received by the Authority on December 13, 1993, in an envelope which did not contain a postmark. Consequently, under section 2429.17(a) of the Authority's Rules and Regulations, the application was presumed to have been filed on December 8, 1993, 5 days prior to its receipt by the Authority. As the 60-day time limit within which to file applications for review, set forth in section 2429.21(b) of the Authority's Rules and Regulations, expired on December 7, 1993, the Authority issued an Order directing OEA to show cause why its application should not be dismissed as untimely. OEA responded to the Order with personal declarations that it submitted its application to the U.S. Postal Service on December 7, 1993. However, noting that personal declarations do not constitute proof of filing under section 2429.21(b) of the Authority's Rules and Regulations, the Authority dismissed OEA's application for review as untimely filed.

III. Motion for Reconsideration

OEA argues that it provided the Authority with "third party evidence" that its application was timely filed. Motion at 1. In this connection, OEA notes that, in response to the Authority's Order to Show Cause, it provided "proof by a declaration of a mail handler of the United States Postal Service that the [a]pplication for [r]eview was mailed on December 7, 1993[]" and a declaration by an OEA attorney "attesting to the timely filing of the [a]pplication." Id. at 3. OEA argues that the lack of a postmark on the envelope which contained its application resulted from "oversight of the Postal Service personnel" and that to dismiss the application for review "because the Post Office failed to perform its duty when [OEA] has established that the [a]pplication was timely filed, is to place form over substance." Id. at 5.

OEA also claims that the Authority may have "discarded valuable evidence of the timely filing" of its application. Id. at 3. In this regard, OEA asserts that it mailed copies of its application in a box separate from the envelope that contained the original of the application and that the Authority discarded that box. OEA asserts that, as "[i]t is reasonable to believe that the box contained a postmark, . . . if it had not been discarded, [OEA] would have provided the postmark as evidence." Id. at 5-6. OEA argues that because the Authority may have discarded evidence of OEA's timely filing of the application, the Authority "should accept the declaration of the mailhandler in place of the missing postmark." Id. at 6.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that OEA has not established such extraordinary circumstances in this case.

We reject OEA's contention that the personal declarations it submitted in response to the Authority's Order to Show Cause establish that the application for review was timely filed. The Authority consistently has held that personal affidavits, standing alone, are insufficient to establish the date of service or mailing of documents. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 160, 161 (1991) and cases cited therein. Compare National Federation of Federal Employees, Local 405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 607 (1988) (as postmark on agency head disapproval was illegible, agency date stamp on certified mail receipt coupled with affidavit constituted sufficient proof of service).

We also reject OEA's claim that, by discarding the box in which the copies of the application were contained, the Authority may have prevented OEA "from producing a postmark showing the actual date of filing . . . ." Motion at 1. In this regard, as noted by OEA, a box containing copies of the application for review was mailed on the same day as the envelope containing the original application. The Authority's records indicate that the box also was received by the Authority on December 13, 1993. As the Authority was in receipt of the original of the application for review there was no reason to retain the box in which copies of the application were contained. Moreover, although the box containing the copies of the application was discarded, there is no indication in the Authority's records that this box was postmarked. Finally, we note that although OEA claims that the envelope containing the original application and the box containing the copies were mailed on December 7, 1993, they both were received by the Authority on December 13, 1993, the same day the Authority received OEA's supplemental submission in this case, which was dated and mailed on December 8, 1993.

We conclude that OEA has not established extraordinary circumstances warranting rec