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32:1235(166)AR - IRS INDIANAPOLIS DISTRICT and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 49 -- 1988 FLRAdec AR


[ v32 p1235 ]
32:1235(166)AR
The decision of the Authority follows:


  32 FLRA NO. 166
  32 FLRA 1235 (1988)

      22 SEP 1988
INTERNAL REVENUE SERVICE
INDIANAPOLIS DISTRICT

              Agency

      and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 49

              Union

Case No. 0-AR-1469
  (32 FLRA 335)

ORDER DENYING MOTION FOR WAIVER OF TIME LIMITATIONS TO FILE
MOTION FOR RECONSIDERATION

     I. Statement of the Case

     The Agency has filed motions requesting the Authority to
waive the expired time limit for filing a motion for
reconsideration and to grant its motion for reconsideration of
our decision in 32 FLRA  335 (June 9, 1988). The Union filed an
opposition to the Agency's motions. For the reasons set forth
below, we deny the Agency's motion for waiver of the expired time
limit and, accordingly, do not consider the motion for
reconsideration.

     II. Discussion

     Section 2429.17 of the Authority's Rules and Regulations
provides in pertinent part:

     2429.17 Reconsideration.

     After a final decision or order of the Authority has been
issued, a party to the proceeding before the Authority who can
establish in its moving papers extraordinary circumstances for so
doing, may move for reconsideration of such final decision
or order. The motion shall be filed within ten (10) days after
service of the Authority's decision or order.

     The Authority's decision in 32 FLRA  335 was dated and
served on the Agency by mail on June 9, 1988. Whenever a party is
served by mail, 5 days are added to the prescribed period for
filing a motion for reconsideration. 5 C.F.R. 2429.22. Therefore,
in order to be timely filed, the Agency's motion for
reconsideration had to be either mailed to the national office of
the Authority in Washington, D.C., and postmarked by the U.S.
Postal Service no later than June 27, 1988, or, if filed in
person, received at the Authority's national office no later than
the close of business that same date. 5 C.F.R. 2429.21(b).
Computation of that date gives due allowance for weekends and
holidays as required by section 2429.21. See United States
Department of Justice, Bureau of Prisons, Metropolitan
Correctional Center, New York, New York, 25 FLRA  102 (1986)
(explaining the procedure for computing time periods).

     In the instant case, the Agency's motion for reconsideration
was mailed to the Authority on or after June 28, 1988. As
acknowledged by the Agency, the Agency's motion for
reconsideration was untimely filed. The Agency requests a waiver
of the time limit on the basis that the attorney responsible for
the case was out of state in training, and, although he was
telephonically informed on or about June 14, 1988, of the result
of the case, he was "unable to review the Decision until
returning" to his office. Motion for Waiver of Time Limitations
at 1.

     Section 2429.23(b) of the Authority's Regulations permits
the Authority to waive an expired time limit in "extraordinary
circumstances." We find that the Agency has not shown the
existence of "extraordinary circumstances" warranting the waiving
of the expired time limit to file a request for reconsideration.
As the Union notes in its opposition, Agency counsel has not
shown that the fact that he was away from his office prevented
him from receiving a copy of the decision or from timely filing a
motion for reconsideration. While the Agency could have timely
filed a motion for reconsideration, it did not do so.

     The Agency's motion for a waiver of the expired time limit
for filing a motion for reconsideration does not present
"extraordinary circumstances" warranting waiver of the time
limit. Therefore, the Agency's motion must be denied. 

     III. Order

     The Agency's motion for waiver of expired time limit to file
a request for reconsideration is denied.

     Issued, Washington, D.C., September 22, 1988

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY