American Federation of Government Employees, Local 3529 (Union) and United States Department of Defense Defense Contract Audit Agency, Central Region, Irving, Texas (Agency)

[ v58 p151 ]

58 FLRA No. 30

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION, IRVING, TEXAS
(Agency)

0-NG-2675

_____

ORDER DENYING REQUEST FOR
RECONSIDERATION

October 11, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, 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 as untimely. The Agency did not file an opposition to the Union's 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. On May 24, 2002, the Authority issued a Notice and Order directing the Union to show cause why its petition should not be dismissed because the Union's petition appeared to be untimely filed. The Authority's Order stated that the record in the case indicated that the Agency served the Union with an allegation of nonnegotiability on April 8, 2002. The Order further stated that in order to be considered timely, the Union's petition had to be either postmarked by the U.S. Postal Service or received by the Authority no later than April 29, 2002 (citing [ v58 p152 ] 5 C.F.R. §§ 2424.21 and 2429.22). Noting that the Union's petition was postmarked May 1, 2002, the Order stated that the petition appeared to be untimely filed.

      The Union filed a timely response to the Authority's Notice and Order. In its response, the Union challenged, among other things, the Agency's assertion that the Agency served the allegation of nonnegotiability on April 8, 2002.

      On August 19, 2002, the Authority issued an Order Dismissing Petition for Review. The Authority first granted the Union's request to withdraw its petition with respect to all but one proposal. With respect to the remaining proposal, the Authority held that the petition was untimely filed. The Authority found that the envelope in which the allegation was served on the Union bore a legible postmark confirming the Agency's claim that its allegation of nonnegotiability was deposited in the U.S. mail on April 8, 2002. Accordingly, the Authority dismissed the petition as untimely filed.

III.     Union's Request for Reconsideration

      The Union has filed a document captioned, "Union Response to FLRA Order Dismissing Petition for Review in Case No. 0-NG-2675." Because the Response argues that the Authority's Order relies on a mistaken finding of fact, we will treat the response as a request for reconsideration under § 2429.17 of the Authority's Regulations.

      The Union alleges that the envelope does not show a postmark, but rather a date affixed by a postage meter. The Union asserts that such a postage meter date "does not mean [the matter] was deposited in the U.S. mail on that date." Union Response at 2. Therefore, according to the Union, there is no evidence that the Agency's allegation was served on the Union on April 8, 2002.

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. United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84 (1995).

      The Authority has found that extraordinary circumstances exist, and as a result has granted requests for 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.

      We find that there is no error of fact in the Authority's order. Although the Union correctly notes that the postmark date was placed on the envelope by a postage meter, such date establishes the date of service. Under Authority precedent, the date shown in a meter postmark is presumed to be the actual date of deposit in the U.S. mail, unless the U.S. Postal Service indicates that the date is incorrect. Nat'l Treasury Employees Union, 47 FLRA 370, 372 (1993); see also Hunt v. United States Postal Svc., 41 MSPR 381, 383 (1989). In the instant case, there is no evidence the U.S. Postal Service determined that the April 8 date on the envelope was incorrect. Therefore, the document is considered to have been deposited in the U.S. mail, and thus served, on that date. 5 C.F.R. § 2429.27(d). Accordingly, the Union's petition filed on May 1, 2002 was untimely.