49:1145(109)AR - - AFGE, Local 3438 & HHS, SSA, Decatur, AL - - 1994 FLRAdec AR - - v49 p1145



[ v49 p1145 ]
49:1145(109)AR
The decision of the Authority follows:


49 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3438

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

DECATUR, ALABAMA

(Agency)

0-AR-2588

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

May 31, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a request for reconsideration filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Union is seeking reconsideration of an Authority Order dated March 18, 1994, dismissing the Union's exceptions to an arbitration award because the exceptions were deficient in several respects. The Agency did not file an opposition to the request.

For the following reasons, we conclude that the Union has not established that extraordinary circumstances exist warranting reconsideration of the Authority's Order. Accordingly, we will deny the request for reconsideration.

II. Background

In accordance with the Authority's Rules and Regulations, any document filed with the Authority must be served on "all counsel of record or other designated representative(s) of parties[.]" 5 C.F.R. § 2429.27(a). Service must be made by certified mail or in person. 5 C.F.R. § 2429.27(b). A signed and dated statement of service which shows that proper service has been made must be submitted with all documents that are filed with the Authority. 5 C.F.R. § 2429.27(c). In addition, with certain exceptions not relevant here, four legible copies must accompany the original of any document filed with the Authority. 5 C.F.R. § 2429.25. Finally, an exception seeking review of an arbitration award must be a self-contained document that sets forth, among other things, the name and address of the arbitrator. 5 C.F.R. § 2425.2(e).

By Order dated February 15, 1994, the Authority notified the Union that its exceptions were deficient based on noncompliance with the Rules and Regulations in the following respects: (1) the statement of service did not show that the Agency's representative of record at the arbitration hearing had been served with a copy of the Union's exceptions; (2) the exceptions did not include the Arbitrator's address; and (3) the Union did not provide the Authority with four copies of the exceptions. The Union was advised that a failure to comply with the Authority's Order showing service of the exceptions on the Agency's representative of record, providing the Authority with the Arbitrator's address, and filing four complete copies of its exceptions with the Authority would result in dismissal of the exceptions. The Union was granted until March 2, 1994, to comply with the Authority's Order.

Noting that the Union had not responded to the Order, the Authority dismissed the Union's exceptions by Order dated March 18, 1994.

III. Request for Reconsideration

The Union advances five arguments in support of its request for reconsideration. First, the Union claims that it never received the Authority's Order dated February 15, 1994. Second, the Union states that the Authority "should have received all copies of the Union's brief and the [A]rbitrator's award[,]" and that it is "puzzled that [the Authority] did not receive at least four (4) copies of these documents."(*) Request for Reconsideration at 1. Third, the Union maintains that the Authority was served with the addresses of the Arbitrator and the Agency's representative because that information was noted on the award, which was submitted to the Authority along with the Union's brief. Fourth, the Union asserts that the Agency's representative received the Union's brief and that "she will not say she has not." Id. Fifth, the Union states that the Authority was aware of the addresses of the Arbitrator and the Agency's representative "because they were both contained in my submissions to your office." Id.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a final decision or order of the Authority. We conclude that the Union has failed to establish the existence of extraordinary circumstances.

Initially, the Union claims that it never received the Authority's deficiency Order dated February 15, 1994. A review of the Authority's records reveals that service of the Authority's Order on the Union's representative was attempted by certified mail, as required by 5 C.F.R. § 2429.12(a), at the address contained on the Union's exceptions. The U.S. Postal Service served two notices on the representative that a certified letter from the Authority was being held for the addressee. Those notices were dated February 17 and February 22, 1994. Finally, when the representative did not take delivery by March 4, 1994, the Order was returned to the Authority as unclaimed. In a subsequent telephonic conversation between the Union's representative and an Authority agent, the representative confirmed that the address to which the Order had been sent was correct and stated that he was out of town during the time that delivery was attempted.

In our view, the non-receipt of the Authority's deficiency Order does not establish extraordinary circumstances in this case. Thus, the Authority properly served the Union's representative who filed the exceptions and at the correct address provided on those exceptions. See American Federation of Government Employees, Local 1770 and U.S. Department of the Navy, XVIII, Airborne Corps, Fort Bragg, North Carolina, 43 FLRA 303 (1991) (in response to agency's argument that it did not receive Authority's deficiency order because it was sent to wrong address, Authority noted that order was mailed to address provided by agency and that agency was responsible for providing correct mailing address). The sole reason advanced by the representative for not receiving the Order is that he was out of town during the time that service was attempted. The representative offered no further explanation as to the nature of his absence. We find that the mere absence of the Union representative is not sufficient to establish extraordinary circumstances, particularly where the representative could have made arrangements for the receipt of certified mail. Compare Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 1235 (1988) (Authority found no extraordinary circumstances to waive expired time limit for filing request for reconsideration simply because attorney responsible for case was in training out of state) with U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, AFL-CIO, 32 FLRA 1261 (1988) (Authority waived expired time limit for filing motion for reconsideration where union representative on whom Authority decision was served was out of town attending to a family medical matter and the motion was filed within a reasonable amount of time after the representative became aware of the Authority's decision).

We further find that the Union's additional contentions do not establish extraordinary circumstances warranting reconsideration. In dismissing the Union's exceptions, the Authority found, among other things, that the Union failed to submit to the Authority by March 2, 1994, documentation that it had properly served its exceptions on the Agency. The Union still has failed to do so. The Union claims, without support, that the Agency's representative received the Union's exceptions. Such an unsubstantiated assertion does not establish that, in fact, the exceptions were served as required by 5 C.F.R. § 2429.27(a) and (c). See National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 40 FLRA 849, 850-52 (1991) (Authority found that agency's declaration that it had served certain documents on opposing party did not meet the Authority's requirements for proof of service); American Federation of Government Employees, Local 119 and U.S. Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 38 FLRA 183, 184-85 (1990) (Authority denied request for reconsideration of dismissal of union's exceptions where there was no showing that the exceptions had been properly served on the agency). Compare U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269, 272 (1991) (Authority considered union's exceptions even though union failed to serve agency properly where there was evidence that the agency received the exceptions and no evidence that the agency had been harmed by the method of service).

In addition, the fact that the Agency representative's name appeared on the award and was known to the Authority does not establish that that representative was properly served with the exceptions in accordance with the Authority's Rules and Regulations. In this regard, parties dealing with the Federal Government are charged with knowledge of and are bound by statutes and lawfully promulgated regulations. See U.S. Department of the Air Force, Headquarters 92nd Bomb Wing, Fairchild Air Force Base, Washington and National Federation of Federal Employees, Local 11, 48 FLRA 783, 785 (1993). Specifically, parties are charged with knowledge of the filing requirements for exceptions. See 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 238, 240 (1991). Thus, the Union is charged with adhering to the Authority's regulatory requirements that required service of its exceptions on the Agency.

Finally, we find no evidence that the Union attempted to serve the Authority with the requisite number of copies of the exceptions or properly provided the name and address of the Arbitrator, as required under the Authority's Rules and Regulations. See U.S. Department of Health and Human Services, Social Security Administration, Area II, Philadelphia Region and American Federation of Government Employees, Local 1923, 42 FLRA 1105 (1991) (Authority denied motion for reconsideration of dismissal of agency's exceptions that were deficient as not showing name and address of arbitrator and service on union's representative).

In sum, we find that the Union has not established that extraordinary circumstances exist which would warrant reconsideration of the Authority's order dismissing the Union's exceptions.

V. Order

The Union's request for reconsideration is denied.




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