American Federation of Government Employees, Local 2113 and U.S. Department of the Navy, Naval Air Warfare Training Systems Division, Orlando, Florida

[ v55 p414 ]

55 FLRA No. 66

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2113
(Union)

and

U.S. DEPARTMENT OF THE NAVY
NAVAL AIR WARFARE TRAINING SYSTEMS
DIVISION, ORLANDO, FLORIDA
(Agency)

0-NG-2469

_____

ORDER DENYING
REQUEST FOR RECONSIDERATION

April 30, 1999

_____

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

I.    Statement of the Case

      This case is before the Authority on the Union's request for reconsideration of an Authority Order dismissing the Union's petition for review. The Agency did not file an opposition to the request.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Union has not established that extraordinary circumstances exist. Accordingly, we deny the Union's request for reconsideration.

II.    Authority's Order Dismissing Petition For Review

      The Union filed a petition seeking the Authority's review of certain negotiability issues. However, the Union's filing did not comply with a procedural requirement in the Authority's Regulations. Consequently, on November 12, 1998, the Authority issued an Order directing the Union to cure the procedural deficiency. The Order stated that "[f]ailure to comply with the Order by November 27, 1998, may result in dismissal of [the] Union's petition for review." Order at 1. The Union failed to respond to this Order.

      On January 21, 1999, the Authority issued an Order directing the Union to show cause why its petition should not be dismissed in light of its failure to respond to the Authority's November 12, 1998 Order. The Union's timely response to the Order to Show Cause stated that it had not received the November 12, 1998 Order. The Union also submitted the requisite material to cure the deficiency. The Union filed a second response to the Order to Show Cause that admitted receipt of the November 12, 1998 Order. However, the Union then claimed that it failed to respond to the November 12 Order because it confused this Order with the Authority's November 9, 1998 Notice, acknowledging receipt of and docketing the Union's petition for review. On the basis of this confusion, the Union requested that the Authority accept as sufficient its compliance in response to the Order to Show Cause.

      On February 12, 1999, the Authority dismissed the Union's petition for review because the Union "failed to provide sufficient justification for its failure to file a timely response to the Authority's November 12, 1998, Order." Order Dismissing Petition for Review at 1. The Authority noted that the Union's failure to comply with an Authority order because of its own inadvertence, accident, or mistake does not excuse a failure to comply.

III.    Union's Request for Reconsideration

      The Union argues that it received the Authority's November 12, 1998 Order on or after November 30, 1998, subsequent to the November 27 deadline specified in the Order for curing the deficiency. The Union alleges that this delay was "caused by mishandling of [mail] delivery by the Agency's mail agent . . . ." Request at 2. Specifically, the Union claims that the "contracted mail agent forwarded the mail through the internal mail delivery system to the addressed [union] official instead of holding for signed delivery." Id.

      The Union reasserts its argument that it confused the November 12 Order with the November 9 Notice docketing the Union's petition for review. The Union argues that no deficiencies were noted in the November 9 Notice and the Union believed the petition was timely and complete. The Union argues that its belief that the petition was proceeding in a timely manner was confirmed by its receipt of the Agency's statement of position in response to the Union's petition for review.

      The Union argues that its failure to cure the deficiency as requested by the November 12 Order and its prompt submission of the requisite material upon receipt of the Order to Show Cause, "neither unduly delayed the process nor prejudiced the Agency." Id. The Union argues that "[t]he Agency has received timely copies of all correspondence" including the petition that was submitted to the Authority. Id. In this regard, the Union [ v55 p415 ] notes that the Agency's statement of position and the Union's response to the statement of position were both filed in a timely fashion in accordance with the Authority's Regulations.

      Finally, the Union asserts that 5 C.F.R. § 2424.4(4)(c) provides that "filing an incomplete petition and non-compliance with a request for providing missing data may result in a dismissal of the appeal." Id. The Union argues that its original petition for review was "not incomplete [as] there was no missing data . . . ." Id.

IV.    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 (1995) (Scott Air Force Base).

      The Authority has found that extraordinary circumstances exist, and as a result has granted reconsideration, in a limited number of situations. These have included 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 had erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances may also be present when the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in rendering its decision. The moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 85-87 (footnotes omitted).

      The Union's first argument -- that as a result of the Agency's mishandling of the mail, the Union did not receive the Authority's November 12 Order until November 30, 1998 -- does not demonstrate extraordinary circumstances and is refuted by the Authority's records. The Authority's Order was sent to the Union by certified mail, return receipt requested. The return receipt reveals that the Union received the November 12 Order on November 19, 1998. The Union representative to whom the Order was addressed signed for receipt of the Order. This representative has also filed all the pertinent documents in this case. Thus, the Union received the November 12 Order with sufficient time to cure the deficiency by the November 27, 1998 deadline.

      Furthermore, the Authority has previously addressed and rejected claims, such as that made by the Union, 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 warranting reconsideration of Authority order dismissing union's exceptions to judge's decision as untimely filed). This is so even when the union uses the agency's internal mail system. National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53 FLRA 967, 970 (1997).

      The Union's second claim, that it confused the November 12 Order with the November 9 Notice, was previously made by the Union and rejected by the Authority. Therefore, this claim does not establish extraordinary circumstances necessary to warrant reconsideration of the Authority's order dismissing the Union's petition. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369, 52 FLRA 989, 991 (1997) (mere disagreement with the conclusion reached by the Authority is insufficient to establish extraordinary circumstances).

      Furthermore, the Union's argument that the deficiency neither unduly delayed the process nor prejudiced the Agency does not demonstrate the existence of extraordinary circumstances under the standard set forth in Scott Air Force Base. Finally, the Union's argument that its petition was not incomplete and there was no missing data is a misstatement. The record in this case was incomplete because of the Union's failure to file requisite material in accordance with the Author