52:0282(25)AR - - VA Medical Center, Kansa City, MO and AFGE, Local 2663 - - 1996 FLRAdec AR - - v52 p282
[ v52 p282 ]
The decision of the Authority follows:
52 FLRA No. 25
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
KANSAS CITY, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(51 FLRA 762 (1996))
ORDER DENYING REQUEST FOR WAIVER OF TIME LIMITATIONS
TO FILE MOTION FOR RECONSIDERATION
September 30, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in 51 FLRA 762 (1996).(*) The Union acknowledges that its motion is untimely and requests a waiver of the expired time limit. The Agency did not file oppositions to the Union's request and motion.
For the following reasons, we deny the Union's request for a waiver of the expired time limit.
II. The Decision in 51 FLRA 762
In 51 FLRA 762, the Authority found that the award involved in this case did not meet the requirements of the Back Pay Act and set aside the award. The Authority found that the record did not support a conclusion that the Agency's violation of the agreement resulted in a loss of the grievants' pay, allowances or differentials, as required by the Back Pay Act. Consequently, the Authority set aside the award.
III. Union's Request for Waiver of the Time Limitation
The Union asserts that the Authority should waive the time limitation applicable to the filing of motions for reconsideration because the Union's representative of record in this case was out of town participating in contract negotiations at the time the decision in 51 FLRA 762 was delivered to his office. The Union adds that, upon his return on February 16, 1996, the Union representative sent a copy of the decision to another Union representative who is responsible for filing the motion for reconsideration. According to the Union, that Union representative, who is located in another city, received the decision on February 20, 1996.
IV. Analysis and Conclusions
Section 2429.17 of the Authority's Regulations provides that a request for reconsideration of a final order of the Authority must be filed within 10 days after service of the decision. The date of service is the date the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the decision is served by mail, 5 days are added to the period for filing a motion for reconsideration. 5 C.F.R. § 2429.22. Further, the last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or a Federal legal holiday. 5 C.F.R. § 2429.21(a); see United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 25 FLRA 102 (1986) (Metropolitan Correctional Center) (explaining the procedure for computing time periods).
The decision in 51 FLRA 762 was served on the parties by mail on January 31, 1996. Therefore, applying the rules for calculating the timeliness of documents filed with the Authority, and taking into account the intervening Federal holiday, the Union's motion for reconsideration had to be either postmarked by the U.S. Postal Service or received by the Authority no later than February 20, 1996. 5 C.F.R. § § 2429.17, 2429.21 and 2429.22. See Metropolitan Correctional Center, 25 FLRA at 102-03. The Union's motion was filed (postmarked) on March 1, 1996, and, therefore, as acknowledged by the Union, is untimely.
Section 2429.23(b) provides that the Authority may waive expired time limits in "extraordinary circumstances." We find that the Union has not shown the existence of "extraordinary circumstances" warranting the waiving of the expired time limit to file a request for reconsideration. Although the Union representative was out of town when the decision in 51 FLRA 762 was delivered, the Union acknowledges that he returned to his office on February 16, 1996. Thus, he was in receipt of the decision prior to the expiration of the time period for filing a motion for reconsideration. While the Union could have timely filed a motion for reconsideration, it did not do so. Compare Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 1235 (1988) (request for waiver of expired time limit denied where agency counsel was aware of decision prior to expiration of time limit and there was no showing that he was not able to timely file a motion for reconsideration) 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 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). Cf. American Federation of State, County and Municipal Employees, Local 3870 and U.S. Department of Agriculture, Farmers Home Administration, Washington, D.C., 50 FLRA 445 (1995) (request for waiver of expired time limit to cure a deficiency in the filing of a petition for review of a negotiability issue denied where union's counsel acknowledged receipt of the Authority's order and was in the offic