United States Department of Agriculture, Farm Service Agency, Kansas City, Missouri and United States Department of Agriculture, Office of the Inspector General, Kansas City, Missouri and National Treasury Employees Union and National Treasury Employees Union Chapter 264

[ v55 p22 ]

55 FLRA No. 10

UNITED STATES DEPARTMENT OF
AGRICULTURE, FARM SERVICE AGENCY
KANSAS CITY, MISSOURI
AND
UNITED STATES DEPARTMENT OF
AGRICULTURE, OFFICE OF THE INSPECTOR GENERAL, KANSAS CITY, MISSOURI
(Respondents)

and

NATIONAL TREASURY EMPLOYEES UNION
AND
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 264
(Charging Parties)

DE-CA-60399

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

December 24, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

      This matter is before the Authority on a motion for reconsideration filed by the U.S. Department of Agriculture, Office of Inspector General (OIG or Respondent). The Respondent seeks reconsideration of an Authority Order, dated October 23, 1997, dismissing as untimely the Respondent's exceptions to an Administrative Law Judge's decision. The Respondent also seeks reconsideration and remand of the Judge's decision. Neither the General Counsel nor the Charging Party filed a response to the motion.

      For the reasons that follow, we find that the Respondent has failed to establish extraordinary circumstances warranting review of the October 23, 1997 Order. We also reject the Respondent's motion to reconsider and remand the Judge's decision.

II. Judge's Decision

      The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with the requirements of section 7114(a)(2)(B) of the Statute. Specifically, the Judge found that the Respondent prevented a union representative from participating fully in an investigatory examination. The Judge further found that another named respondent, the Farm Service Agency, which requested the investigation of the particular employee, did not violate the Statute. The Judge found, among other things, that the Farm Service Agency took steps to ensure that the employee had union representation. To remedy the unfair labor practice, the Judge ordered the regional inspector general to direct its office to comply with the requirements of section 7114(a)(2)(B) when conducting investigatory examinations.

III. Order to Show Cause and Respondent's Response

      Upon the Respondent's filing of exceptions, the Authority issued an Order to Show Cause directing the Respondent to demonstrate that its exceptions were timely filed, noting that the Judge had established July 14, 1997 as the date by which the exceptions had to be filed. Although the exceptions were dated July 14, they were filed in an envelope postmarked July 15.

      In its response to the show cause order, the Respondent stated that "it took every action to ensure that its Exceptions were placed in the mail stream, postmarked, and filed by July 14, 1997." Response to Order to Show Cause at 3. Affidavits were submitted attesting to delivery of the exceptions to the Respondent's mail room on July 14 and the efforts taken to ensure that the exceptions were postmarked and mailed on that date. The Respondent also claimed that "the date stamped is not necessarily indicative of the date the document is actually mailed where the meter operator fails to use the correct date for certified mail, and incorrectly stamps it with the following day's postmark. . . . Consequently, the July 15 postmark on OIG's Exceptions is not necessarily the date the Exceptions were actually mailed." Id. Finally, the Respondent stated that the presumption that a document is mailed on its postmarked date may be rebutted by the submission of affidavits, sworn to under penalty of perjury, that the exceptions were placed in the mail stream before the due date.

IV. Authority's October 23, 1997 Order

      The Authority initially determined that the evidence submitted by the Respondent was insufficient to establish that its exceptions were timely filed with the Authority on July 14, 1997. The Respondent was advised of the Authority's rulings, in similar situations, that an untimely filing resulting from delays in a party's internal mail system does not establish extraordinary [ v55 p23 ] circumstances warranting reconsideration of the dismissal of the party's exceptions.

      In view of the fact that the exceptions were not timely filed, the decision of the Judge became the decision of the Authority and the Respondent was directed to comply therewith.

V. Respondent's Motion for Reconsideration

      The Respondent now seeks reconsideration of the October 23, 1997 Order and reconsideration and remand of the Judge's decision.

      With respect to the October 23 Order, the Respondent reiterates its claim that it made every effort to file its exceptions by certified mail on July 14. The Respondent also states that because the issue presented in this case relates to the "statutory independence of the OIG's [sic]," "the legal principles . . . are exceptionally important," id., and are "underscored by the clear split among Federal Circuit Courts of Appeals in decisions addressing OIG's [sic] and union representation." Motion for Reconsideration at 2-3. The Respondent claims that "[t]hese issues and the conflict between union representation and an OIG's authority to complete its independent, statutory, investigative and audit missions, are extraordinary enough to demand review on their merits." Id. at 3. Further, the Respondent claims that the order dismissing the exceptions as untimely was issued by the Authority's Case Control Office. According to the Respondent, "[b]ecause of the important issues raised in the OIG Exceptions . . . the [October 23] Order merits reconsideration by the full panel of the Federal Labor Relations Authority." Id. (italics in original).

      With respect to its request for reconsideration and remand of the Judge's decision, the Respondent maintains that subsequent to the Judge's decision, the U.S. Court of Appeals for the Second Circuit issued a decision in FLRA v. U.S. Department of Justice, Washington, D.C., 125 F.3d 106 (2d Cir. 1997), modified on petition for rehearing, 137 F.3d 683 (1998). The Respondent states that the court distinguished between criminal investigations and those involving collective bargaining agreements and, thus, created "a new, and novel distinction" that was not addressed by the Judge and that undermines the Judge's decision. Id. at 4.

      The Respondent also argues that the Judge ruled incorrectly in finding that the OIG violated the Statute. Incorporating the arguments made in its exceptions, the Respondent asserts that "OIG's statutory independence requires a finding that OIG was not acting as an agent of the USDA Farm Service Agency when it conducted the interview at issue." Id. at 6. The Respondent also takes an alternative position that, if it was required to provide union representation at the examination, the evidence shows that active assistance by the union representative was permitted.

VI. Analysis and Conclusions

      Under section 2429.17 of the Authority's 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, 50 FLRA 84, 85-87 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; and (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances have also been found by the Authority where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. Id. at 87 (footnote omitted).

      The Respondent has failed to establish extraordinary circumstances in this case. The Respondent again argues that it placed the exceptions into the "mail stream" on July 14, 1997, as evidenced by the fact that the exceptions were delivered to its mail room on that date. Among other things, the Respondent states, in explaining the operation of its postal meter, that "the date stamped is not necessarily indicative of the date when the document is sent, where the meter operator fails to use the correct date for the certified mail." Motion for Reconsideration, Attachment D, Bryan affidavit at 2.

      The Authority has previously addressed and rejected claims that untimely filings caused by delays or problems with internal mail systems present extraordinary circumstances warranting reconsideration. See, e.g., International Organization of Masters, Mates and Pilots and Panama Canal Commission, 49 FLRA 1370, 1371 (1994) (delay caused by internal mail system does not constitute extraordinary circumstance warranting consideration of exceptions to award that were not timely filed); Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, 34 FLRA 76, 78 (1989) (failure of union's mailing procedures is not extraordinary circumstance war [ v55 p24 ] ranting reconsideration of Authority order dismissing union's exceptions to judge's decision as untimely filed).

      There is no dispute that the Respondent's exceptions had to be filed on July 14, 1997, in order to be considered timely and were postmarked July 15, 1997. The Authority has stated that where a postmark date is used to establish the date of filing with the Authority, or when a document is presumed to have been mailed 5 days prior to receipt in the absence of a postmark, section 2429.21(b) of the Regulations "does not state a rebuttable presumption." Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51, 53 (1987). However, the Authority will consider arguments or evidence, including affidavits, offered by a party seeking to establish extraordinary circumstances warranting reconsideration of a procedural dismissal based on an untimely filing. See, e.g., Department of Veterans Affairs, Los Angeles Regional Office, Los Angeles, California, 44 FLRA 15 (1992); National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 160 (1991). In this case, and consistent with the precedent discussed above, we find that the evidence submitted by the Respondent does not establish extraordinary circumstances.

      We also find that the Respondent's contention that the Authority must review the October 23 Order issued by the Case Control Office does not establish extraordinary circumstances under the standards set forth above. The October 23 Order was an Authority order.

      Finally, we find insufficient to establish extraordinary circumstances the Respondent's assertion of the importance of the "legal principles" relating to the "statutory independence" of OIGs and the "clear split among Federal Circuit Courts of Appeals" in addressing the role of the OIG in investigatory examinations. Motion for Reconsideration at 2, 3. Both the importance of the legal principles and the circuit split were known at the time the case was argued before the Judge. The fact that an additional circuit court issued an opinion subsequent to the Judge's decision in this case does not itself establish extraordinary circumstances.

      Furthermore, the Respondent's contentions relate to the underlying issues presented to the Judge, rather than to the procedural dismissal of the exceptions due to their untimely filing. As part of its responsibilities, the Authority can reject consideration of procedurally deficient documents. Cf. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 890 (D.C. Cir. 1982) (Authority acted properly when it refused to consider an untimely filed party response).

      In sum, we find that the Respondent has failed to establish extraordinary circumstances warranting reconsideration of the October 23, 1997 Order. We affirm the Order dismissing the Respondent's exceptions as untimely filed and directing the Respondent to comply with the Judge's decision. We also reject