29:0051(5)CA - VA, VA Medical Center, Muskogee, OK and AFGE Local 2250 -- 1987 FLRAdec CA



[ v29 p51 ]
29:0051(5)CA
The decision of the Authority follows:


29 FLRA No. 5

VETERANS ADMINISTRATION
VETERANS ADMINISTRATION
MEDICAL CENTER
MUSKOGEE, OKLAHOMA

                  Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2250

                   Union

Case Nos. 6-CA-50105
          6-CA-50106
    (25 FLRA No. 71)
    (27 FLRA No. 33)

ORDER DENYING MOTION FOR RECONSIDERATION

I. Statement of the Case

This case is before the Authority on a notion filed by the Respondent Agency requesting that the Authority: (1) vacate the Order in 27 FLRA No. 33 (1987) dismissing its motion for reconsideration; and (2) grant its motion for reconsideration and request for stay of the Authority's Decision in 25 FLRA No. 71 (1987). For the reasons discussed below, we rescind the Order Dismissing Motion for Reconsideration in 27 FLRA No. 33, and deny the Agency's motion for reconsideration and request for stay of our Decision in 25 FLRA No. 71.

II. Procedural Issue

The Agency's notion for reconsideration of 25 FLRA No. 71 was dismissed because it was found to have been untimely filed. The dismissal order stated, in pertinent part:

(T)he Agency's motion for reconsideration in order to be timely filed had to be either sailed to the national office of the Authority in Washington, D.C., and postmarked by the U.S. Postal Service no later than March 9, 1987, or if filed in person, received at the Authority's national office no later than the [PAGE] close of business on the same date. However, if no postmark date is evident on a mailing, the Authority's Rules (section 2429.21(b)) require the presumption that it was mailed five (5) days prior to receipt. Respondent's motion dated March 9, 1987, was received by the Authority on March 16, 1987. As no postmark date is evident on the "Official Business" envelope containing the motion, it is presumed that the motion was mailed on March 11, 1987 -- five (5) days prior to receipt by the Authority. Therefore, as the Respondent's motion was not filed until March 11, 1987, it was untimely and must be dismissed. (Slip Op. at 2)

The Agency now offers evidence to establish the actual mailing date of its notion for reconsideration. The Agency argues that section 2429.21(b) of the Authority's Rules and Regulations simply creates, in cases where there is no postmark, a rebuttable presumption that mailing occurred 5 days before the Authority's receipt. The Agency maintains that if competent evidence establishes that the actual mailing date was earlier, the submission should be considered filed with the Authority on the actual date of mailing.

Section 2429.21(b) provides in pertinent part:

2429.21 Computation of time for filing papers.

(b) Except when filing an unfair labor practice charge . . . , a representation petition . . . , and a request for extension of time . . . , when this subchapter requires the filing of any paper with the Authority . . . , the date of filing shall be determined by the date of mailing indicated by the postmark date. If no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt. If the filing is by personal delivery, it shall be considered filed on the date it is received by the Authority . . . .

This rule, adopted December 31, 1986, changes the definition of "filing" from receipt at the Authority's national office to date of mailing. To determine the date of filing, [ v29 p2 ] the new regulation uses the postmark. However, filings are often mailed to the Authority in "Official Business" envelopes, which ordinarily are not postmarked. 1 Accordingly, the rule provides a method for determining the date of filing in the absence of a postmark: the date of receipt minus 5 days.

Contrary to the Agency's contention, section 2429.21(b) does not state a rebuttable presumption. Regarding postmarked mailings, the date of the postmark itself establishes the date of filing and cuts off any dispute over the actual mailing date. The postmark provides fair, uniform, and objective evidence of the date of filing. For mailings without a postmark, the use of the word "presumed" in the Authority's 5-day rule merely describes how the rule is implemented rather than establishing a rebuttable presumption.

As discussed above, section 2429.21(b) was adopted effective December 31, 1986. However, this is the first occasion for us to interpret this section. Accordingly, we find that under the circumstances in this case the purposes of the Statute will be effectuated by waiving the time limit for filing a motion for reconsideration in this case and to rescind the Authority's Order of May 29, 1987, Dismissing Motion for Reconsideration in 27 FLRA No. 33.

III. Agency Motion for Reconsideration

In our Decision in 25 FLRA No. 71, we held that the Respondent Agency's change in the clinical privileges of two physicians resulted in an obligation to bargain, and that its conduct in failing to give notice of and an opportunity to bargain over the change in clinical privileges violated section 7116(a) and (5) of the Statute.

In its motion, the Agency argues that reconsideration is warranted because the Authority's Decision erroneously: (1) equated the clinical privileges of Agency physicians with work assignments; (2) concluded that the working conditions of title 38 medical professionals are bargainable under the Statute; and (3) found that the particular changes in clinical [ v29 p3 ] privileges had a foreseeable impact on the physicians' working conditions.

Section 2429.17 of the Authority's Rules and Regulations provides that a party that can establish "extraordinary circumstances" may petition for reconsideration of a final decision or order of the Authority. We conclude that the Respondent Agency has failed to establish "extraordinary circumstances" within the meaning of section 2429.17. The Agency's motion does not raise any issues not previously considered by the Authority. Instead, the notion constitutes only a disagreement with the merits of the Authority's Decision and an attempt to relitigate the matter.

Accordingly, the Agency's request for reconsideration of the Authority's February 20, 1987 Order in 25 FLRA No. 71 is denied. The request for a stay is likewise denied.

Issued, Washington, D.C., September 25, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p4 ]

FOOTNOTES

Footnote 1 The Postal Opera ions Manual of the U.S. Postal Service provides at section 423.35b that, "(m)ass mailings by Government agencies (i.e.(,) metered or franked)" do not require a postmark "unless the agency requests that a specific mailing be postmarked." (Emphasis added.) Thus, a postmark of "Officia