49:0869(83)AR - - USIA and AFGE, Local 1812 - - 1994 FLRAdec AR - - v49 p869



[ v49 p869 ]
49:0869(83)AR
The decision of the Authority follows:


49 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES INFORMATION AGENCY

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1812

(Union)

0-AR-2557

(48 FLRA 1149 (1993))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

April 29, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion filed by the Union under section 2429.17 of the Authority's Rules and Regulations seeking reconsideration of the Authority's order in 48 FLRA 1149 (1993). The Agency did not file an opposition to the motion for reconsideration.

For the following reasons, we conclude that the Union has not established that extraordinary circumstances exist warranting reconsideration of the Authority's order. Accordingly, we will deny the motion for reconsideration.

II. Authority's Order

By an order dated December 23, 1993, the Authority determined that the Union's exceptions to the Arbitrator's award involved in this case were untimely filed. The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The Authority stated that the Arbitrator served the award on the Union by mail on October 26, 1993, and that any exception to the award had to be either postmarked by the U.S. Postal Service or received at the Authority no later than the close of business on November 29, 1993. 5 C.F.R. 2429.22.(1) Because the Union's exceptions were filed on November 30, 1993, the Authority dismissed the exceptions as untimely filed. The Authority stated, in this connection, that the time limit for filing exceptions to an arbitration award may not be extended or waived.

III. Motion for Reconsideration

The Union argues that extraordinary circumstances exist for the Authority to reconsider its order dismissing the Union's exceptions for untimeliness and to waive the time limit for the Union to file exceptions. Specifically, the Union contends that reconsideration of the Authority's order is warranted because: (1) the Union's counsel was unavailable to work on the exceptions prior to November 12, 1993; (2) the Union lacked funds to hire outside counsel for filing the exceptions; (3) the Union's counsel works only part-time and had other commitments; (4) the Union counsel's office computer broke down; and (5) "the Union was induced to refrain from requesting in a timely manner an extension or waiver of the 5[-]day period for service by mail" because an agent of the Authority stated to the Union's counsel that the due date of the exceptions was November 30, 1993, "the date that the Union relied upon and adhered to in filing its exceptions." Motion for Reconsideration at 9, 10.

The Union argues that, but for the misinformation provided by an agent of the Authority, it would have timely filed a request under section 2429.23(a) of the Authority's Rules and Regulations for an extension of the 5-day period that, under section 2429.22, is added to the period for filing exceptions to an arbitrator's award if the award is served on a party by mail. The Union contends that extraordinary circumstances within the meaning of section 2429.23(b) of the Authority's Rules and Regulations are present in this case which warrant waiving or extending the 5-day period set forth in section 2429.22. In this regard, the Union claims that it is not requesting a waiver or an extension of the jurisdictional time limit for filing exceptions to an arbitrator's award provided in section 7122(b) of the Statute, but rather is requesting an extension of the 5-day period for service by mail, which is not jurisdictional. The Union notes that the Authority has waived filing requirements where those requirements were not jurisdictional.

Alternatively, the Union argues that, because of the misinformation it received from the agent of the Authority, the Authority should waive the requirement under section 2429.23(a) that requests for extensions of time limits be made at least 5 days in advance of the established time limit for filing exceptions and should apply the "good cause" standard under that section, rather than the "extraordinary circumstances" standard under section 2429.23(b), and find that there is good cause for extending the date for filing exceptions in this case to November 30, 1993.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision or order of the Authority. We conclude that the Union has not established that extraordinary circumstances exist warranting reconsideration of the Authority's order in 49 FLRA 1149 dismissing the Union's exceptions as untimely filed.

The Union contends that, as a result of factors beyond its control which limited the availability of its counsel, it was delayed in filing its exceptions with the Authority. The Authority has consistently held that equitable considerations do not constitute extraordinary circumstances warranting reconsideration of an order dismissing exceptions to an arbitrator's award as untimely filed. See, for example, U.S. Department of the Interior, Bureau of Indian Affairs, Billings Area Office, Billings, Montana and National Federation of Federal Employees, Local 478, 39 FLRA 238, 240 (1991) (Billings Area Office); U.S. Department of Housing and Urban Development and American Federation of Government Employees, AFL-CIO, Local 476, 27 FLRA 852, 853-54 (1987) (HUD). Consequently, we find that the Union's contentions as to the availability of its counsel do not provide a basis for reconsideration. See Billings Area Office; U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 40 FLRA 233, 235 (1991).

We also find that the Union's contention that an agent of the Authority stated the due date of the Union's exceptions as November 30, 1993, rather than November 29, 1993, does not establish extraordinary circumstances warranting reconsideration of our order. It is undisputed in this case that the Arbitrator's award was served on the Union by mail o