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55 FLRA No. 110
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-52
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION DEPOT RED RIVER TEXARKANA, TEXAS
MOTION FOR RECONSIDERATION
July 27, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on the Union's request for reconsideration of the Authority's Order Dismissing Exceptions in 0-AR-3106, dated December 16, 1998. The Agency did not file an opposition to the 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 motion.
II. Order in 0-AR-3106
The Arbitrator issued an award and the Union filed exceptions. However, the Union's exceptions did not appear to comply with section 2425.1(b) of the Authority's Regulations which provides that "[t]he time limit for filing an exception to an arbitration award is thirty (30) days beginning on the date the award is served on the filing party." 5 C.F.R. § 2425.1(b).
In order to determine whether the exceptions were timely filed, the Authority issued an Order to Show Cause directing the Union to provide either: (1) proof that the Arbitrator's award was served on the Union by mail on or after August 14, 1998; or (2) proof that the award was served on (received by) the Union on or after August 20, 1998, if service of the award on the Union was by personal or commercial delivery.
On December 16, the Authority dismissed the Union's exceptions because the Union failed to show that its exceptions were timely filed. More specifically, the Authority rejected the affidavit of counsel for the Union wherein it was stated that a handwritten date notation of August 20, 1998, on the cover page of the award, established the date of service. In addition, the Authority found that, even assuming the affidavit were considered, there was no handwritten date on the award's cover page. Finally, the Authority found that the Union had not offered any proof that the award was served on the Union either by personal or commercial delivery. Consequently, the Authority concluded that the Union's exceptions were not timely filed.
III. Union's Motion for Reconsideration
The Union contends that our Order Dismissing Exceptions in 0-AR-3106 is based on nonfact. The Union explains that in the Order we stated that "there is no handwritten date notation of August 20, 1998, on the cover page of the Arbitrator's award as stated in the affidavit." Motion at 1. However, the Union claims that this statement is incorrect, as demonstrated by a copy of the cover page, attached to its motion for reconsideration. The Union points to the lower right corner of the cover page and asserts that a dated receipt of "8-20-98" is clearly shown. As such, the Union argues that its exceptions should be found to have been timely filed.
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. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85-87 (1995) (citing cases finding extraordinary circumstances). We conclude that the Union has not established extraordinary circumstances.
The Authority has held, as relevant here, that a personal affidavit, coupled with additional evidence, can be sufficient to establish the date of service or the mailing of documents. See, for example, National Federation of Federal Employees, Local 405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 607 (1988) (agency date stamp on certified mail receipt, coupled with affidavit, constituted sufficient proof of service). But see [ v55 p649 ] National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 160, 161 (1991) (handwritten date on certified mail receipts, in space labeled as "Postmark or Date," did not constitute proof of mailing).
In this case, the Union submitted the personal affidavit of its counsel, coupled with the cover page of the Arbitrator's award, to establish the date of service. Nevertheless, in our Order Dismissing Exceptions, we specifically found that there was no handwritten date on the cover page of the award, as the Union maintained. We also found that the Union did not offer any proof that the award was served by personal or commercial delivery.
In its motion for reconsideration, the Union submits the cover page of the award and points to the August 20, 1998, handwritten date notation in the lower right hand corner. A review of the document initially submitted includes no such notation. It, therefore, appears that a photocopying error caused the handwritten date notation to have previously been omitted.
Under these circumstances, the Union's exceptions could only have been timely if the award was served by personal or commercial delivery. That is, assuming that the award was received by the Union on August 20, 1998, service must have been made by personal or commercial delivery in order for the exceptions, dated September 18, 1998, to have been filed within 30 days from the date of receipt. However, the evidence offered by the Union fails to provide any such proof. We, therefore, conclude that the Union has not established extraordinary circumstances warranting reconsideration of our Order Dismissing Exceptions in 0-AR-3106.
The Union's motion for reconsideration is denied.