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25:0102(7)CA - Justice, Bureau of Prisons, Metropolitan Correctional Center, NY, NY and AFGE Local 3148 -- 1987 FLRAdec CA

[ v25 p102 ]
The decision of the Authority follows:

 25 FLRA No. 7
 Charging Party
                                            Case No. 2-CA-60082
    This matter is before the Authority pursuant to the Charging Party's
 request for reconsideration of the Authority's Order of June 30, 1986.
 The Order adopted, without precedential significance, pursuant to
 section 2423.29(a) of the Authority's Rules and Regulations, as amended
 (5 CFR Section 2423.29(a) (1986)), the findings, conclusions, and
 recommendations in the Decision and Order of the Administrative Law
 Judge.  The Authority's Order was based on its finding that no
 exceptions to the Decision and Order of the Administrative Law Judge in
 the subject case were filed with the Authority within the time limit
 established by the Administrative Law Judge for such filings.  As stated
 in the Judge's May 20, 1986 "Notice of Transmittal of Decision,"
 exceptions to the Judge's Decision were due on or before June 19, 1986.
 However, the Charging Party's exceptions were not filed until June 23,
 1986.  The Agency filed a response to the Charging Party's request for
 reconsideration asking that the Authority uphold its Order of June 30,
    Section 2429.17 of the Rules and Regulations provides that in
 "extraordinary circumstances" the Authority may grant a request for
 reconsideration.  For the reasons which follow, we have determined that
 the Charging Party's exceptions were timely filed and that the request
 for reconsideration should be granted.
    In arriving at the stated due date for any exceptions to his Decision
 to be filed with the Authority, it is apparent that the Judge
 interpreted sections 2423.26(c), 2429.21, and 2429.22 of the Authority's
 regulations as providing a total of 30 days from the date of service of
 the Decision and Order for the filing to be accomplished.  It appears
 further that the Judge computed this 30-day period by adding the 25 days
 allowed under section 2423.26(c) for filing exceptions and the 5 days
 permitted under section 2429.22 because the Decision and Order was
 served by mail.  This method of calculation yields the due date used by
 the Judge in his "Notice of Transmittal of Decision":  June 19, 1986.
    However, the Authority uses a different method of computing time
 periods when the 5 days permitted under section 2429.22 of its
 regulations is to be added.  We first determine the expiration date of
 the period prescribed for filing under applicable regulations, with due
 allowance for weekends and holidays as required by section 2429.21.
 Once this due date is determined, the 5 additional days authorized under
 section 2429.22 because of service by mail is added.  /1/
    Applying the Authority's procedure to the subject case, we calculate
 the due date for exceptions as follows:  Under section 2423.26(c) of our
 regulations and excluding other calculations, any exceptions to the
 Decision and Order had to be filed with the Authority by June 14, 1986.
 However, section 2429.21 provides that if a due date falls on a
 Saturday, Sunday, or Federal legal holiday, the time limit "shall run
 until the end" of the next work day.  Because June 14 was a Saturday,
 the time limit for filing exceptions was extended to the close of
 business on Monday, June 16, 1986.  In addition, because the Decision
 and Order was served by mail, section 2429.22 authorizes the addition of
 5 days to the due date.  Therefore, as extended by the operation of
 section 2429.22, the due date was June 21, 1986.  As June 21 was a
 Saturday, section 2429.21 again extended the time limit for filing
 exceptions to the end of the next work day -- Monday, June 23, 1986.
    Thus, under the Authority's calculation procedure, /2/ the Charging
 Party's exceptions were timely filed with the Authority on June 23,
 1986.  Therefore, our Order of June 30, 1986, is hereby rescinded and
 the case is reopened for futher processing.
    Any party may file an opposition to the Charging Party's exceptions
 and/or cross-exceptions, and a supporting brief with the Authority.
 Such submissions must be filed with the Authority no later than December
 24, 1986.  Copies of any opposition and/or cross-exceptions and of any
 supporting briefs must be served on all other parties, and a statement
 of such service must be included with any submission to the Authority.
    Issued, Washington, D.C., December 4, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) Compare Kessler Institute for Rehabilitation v. NLRB, 669 F.2d
 138, 141 (3rd Cir. 1982) (interpreting analogous regulations of the NLRB
 in a similar manner).
    (2) On September 23, 1986, the Authority published in the Federal
 Register (51 Fed. Reg. 33,838 (1986)) for comment a rule which would
 date filing from deposit in the U.S. mail.  The closing date for
 comments was October 23, 1986.