50:0445(64)NG - - American Federation of State, County, and Municipal Employees ( AFSCME ), Local 3870 and Agriculture, Farmers Home Administration, Washington, DC - - 1995 FLRAdec NG - - v50 p445
[ v50 p445 ]
The decision of the Authority follows:
50 FLRA No. 64
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES
U.S. DEPARTMENT OF AGRICULTURE
FARMERS HOME ADMINISTRATION
ORDER DENYING MOTIONS FOR RECONSIDERATION AND
ENLARGEMENT OF TIME
May 31, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on a motion 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 dismissing the Union's petition for review of a negotiability issue because of the Union's failure to comply with the service requirements of 5 C.F.R. § 2424.4(b). The Union also filed a motion for an enlargement of time nunc pro tunc to cure the service deficiency. The Agency did not file an opposition to the Union's motions.
For the following reasons, we conclude that the Union has not established that extraordinary circumstances exist warranting reconsideration of the Authority's order or the grant of an enlargement of time. Accordingly, we deny the motions.
The Union filed a petition for review of a negotiability issue. The Authority acknowledged receipt of the petition and, in a separately mailed document, issued an order notifying the Union that its petition did not comply with 5 C.F.R. § 2424.4(b) because it was not served on the Agency's principal bargaining representative at negotiations. The Union was given a specified date by which to comply with the order and was advised, pursuant to 5 C.F.R. § 2424.4(c)(1), that a failure to comply with the order by that date may result in dismissal of the petition for review. The Union failed to respond to the order and the Authority subsequently dismissed the petition.
III. Motions for Reconsideration and Enlargement of Time
The Union contends that the factual circumstances presented warrant reconsideration of the dismissal and the reopening of this case. The Union argues that it served the petition for review on the Agency's labor relations specialist, who was a member of management's bargaining team for most of the negotiations, and that such service can be viewed as compliance with 5 C.F.R. § 2424.4(b). The Union also contends that its service on that individual, along with the head of the Agency, constitutes actual notice of the filing of the petition at both the local and agency head levels and demonstrates that the Agency was not prejudiced by the Union's error, citing American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367 (1990) (Social Security Administration, New York).
Further, the Union claims that its counsel suffered an "unusual illness," documented by medical certification, at the time of receipt of the Authority's deficiency order, which impaired the counsel's ability to work effectively. Reconsideration at 5. In the Union's view, that illness, coupled with the receipt of the Authority's acknowledgement notice and the deficiency order on the same day, deprived it of actual notice of the alleged deficiency in service, which constitutes extraordinary circumstances warranting reconsideration.
The Union maintains that, with the filing of its request for reconsideration, it has cured the alleged deficiency in service and requests the Authority to grant its motion for an enlargement of time nunc pro tunc.
IV. Analysis and Conclusions
Under section 2429.17 of the Authority's Rules and Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the "heavy burden" of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, AFL-CIO, SEIU, 50 FLRA 84, 85 (1995). We find no extraordinary circumstances in this case.
5 C.F.R. § 2424.4(b) requires that a copy of a petition for review including all attachments must be served on the agency head and on the principal agency bargaining representative at the negotiations. Thus, as parties are charged with knowledge of the Authority's Rules and Regulations, American Federation of Government Employees, Local 3438 and U.S. Department of Health and Human Services, Social Security Administration, Decatur, Alabama, 49 FLRA 1145, 1148-49 (1994), the Union should have known that service on the principal bargaining representative was required. We also find misplaced the Union's reliance on Social Security Administration, New York, where the Authority concluded that the union's failure to serve its petition on the agency head did not constitute a basis on which to dismiss the petition because the agency had filed a statement of position, demonstrating that it had not been prejudiced by the union's noncompliance with the Authority's Rules and Regulations. Here, no statement of position was filed by the Agency and the Union has not demonstrated that its improper service resulted in no prejudice to the Agency.
We also find unpersuasive the Union's contention that counsel's illness, coupled with receipt of the Authority's acknowledgement notice and deficiency order on the same day, constitutes extraordinary circumstances because the Union did not have actual notice of the deficiency in service. In American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 38 FLRA 177 (1990), cited by the Union to support this position, the Authority granted an agency's motion for reconsideration of a negotiability decision that had been issued in the absence of an agency statement of position because it was established that the union had failed to serve a copy of its corrected petition on the principal bargaining representative, who was organizationally responsible for filing the statement of position. In this case, the Union acknowledges that it received the deficiency notice and makes no claim that, apart from an asserted misfiling of the notice, someone else in counsel's office could not have reviewed the Authority's order and responded to the deficiency notice.
Finally, we find no basis on which to grant the Union's request for an enlargement of time nunc pro tunc. Absent extraordinary circumstances, the Authority does not grant a waiver of expired time limits. 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 467, AFL-CIO, 32 FLRA 1261 (1988) (HUD) (Authority waived expired time limit for filing motion for reconsideration where union representative was out of town attending to a family medical matter before Authority's decision was served and did not return until after deadline for filing motion had expired). Here, unlike HUD, the Union's counsel acknowledges receipt of the Authority's order and, in fact, was in the office during the period in which a response could have been timely made and a cure effected. To the extent the Union's conduct may be characterized as a mistake, the Authority has held that a simple mistake in filing does not constitute a basis for a waiver of a time limit. American Federation of Government Employees, Local 2004 and U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 33 FLRA 862 (1989).
In sum, we find that the Union has not established extraordinary circumstances either warranting reconsideration of the Authority's order or waiving an expired time limit to cure a deficiency