73 FLRA No. 57

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES
LOCAL 1858
(Union)

 

and

UNITED STATES

DEPARTMENT OF THE ARMY
REDSTONE ARSENAL, ALABAMA

(Agency)

 

0‑AR‑5793

 

_____

 

ORDER DISMISSING EXCEPTIONS

 

October 6, 2022

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and Susan Tsui Grundmann, Members

 

1. Statement of the Case

    

The Authority’s Office of Case Intake and Publication (CIP) issued an order directing the Union to provide documentary evidence related to the Union’s exceptions to Arbitrator Roger I. Abrams’s award.  After the deadline to respond to the order expired, the Union filed an extension-of-time request.  CIP then issued an order directing the Union to show cause why the Authority should not dismiss its exceptions based on the Union’s failure to timely respond to the first order.  Because the Union has not established extraordinary circumstances justifying waiving the expired time limit, we dismiss the Union’s exceptions.  

 

1. Background

    

The Union filed a grievance that proceeded to arbitration.  After the Arbitrator denied the Union’s grievance, the Union filed exceptions to the award on January 10, 2022.[1]  On February 9, the Agency filed an opposition.

 

On May 10, CIP issued an order (May order) directing the Union to provide, among other things, an earlier-filed unfair-labor-practice (ULP) charge that appeared to relate to the Union’s grievance.[2]  The May order stated that “[t]he Union’s failure to comply . . . by May 24[] may result in dismissal of the Union’s exceptions.”[3]  Additionally, the May order noted that “[r]equests for extensions of time must be . . . received by the Authority not later than five days before the established time limit for filing” and “must state the position of the other party.”[4]

 

CIP sent the May order to the Union via certified mail.  The tracking information shows that the May order was delivered to the Agency’s internal mail room on May 23.[5] 

 

The Union filed a request for an extension of time to respond to the May order.  In that request, which was postmarked June 18, the Union stated that it “did not receive [the May order] until June 1,” when a Union official picked up the mail from the Agency’s mail room.[6]  The Union acknowledged that the Agency’s mail room received the Authority order on May 23, but asserted that the mail room “no longer delivers mail or notifies when there is mail at their facility.”[7]   

 

On July 21, CIP issued an order (July order) directing the Union to show cause why the Authority should not dismiss the exceptions based on the Union’s failure to comply with the May order.  The July order stated that “the Union filed an untimely request for an extension of time” to respond to the May order, and the Union failed to state the Agency’s position regarding the extension-of-time request.[8]

 

In a timely response to the July order, the Union acknowledged that the Agency’s mail room received the order on May 23, but argued circumstances warranted waiving the expired time limit because the Union “did not receive the [May order] until June 1.”[9]  The Union stated that it does not pick up mail on a daily basis because employees are currently teleworking due to the COVID‑19 pandemic.  Additionally, the Union stated that it filed the extension request the same day that it received the May order – June 1. 

 

1. Analysis and Conclusion:  The Union fails to establish extraordinary circumstances to justify waiving an expired time limit.

    

The Union argues in its response to the July order that the Authority should not dismiss the Union’s exceptions, because the Union (1) did not receive the May order until after the deadline for responding expired, (2) requested an extension, and (3) “sen[t] the requested information to the Authority.”[10]  

 

Under § 2429.23(b) of the Authority’s Regulations, a party’s request to waive an expired time limit “shall state” the other parties’ positions, and requests to waive expired time limits may be granted only in “extraordinary circumstances.”[11]  Further, § 2429.23(c) provides that “time limits . . . may not be . . . waived in any manner other than that described” in the Authority’s Regulations.[12]  As such, the Authority has denied waiver requests that did not state the positions of other parties, as well as requests that did not establish extraordinary circumstances.[13]  

 

First, the Union argues that, because employees were teleworking, it did not receive the May order until June 1, when a Union official picked up the mail from the Agency’s internal mail room.[14]  However, the Union concedes,[15] and the tracking information confirms,[16] that the Agency’s mail room received the May order before the May 24 response deadline.[17]  Further, to the extent that the Agency’s internal mail-room procedures changed,[18] the Union fails to explain why it did not make alternative arrangements for monitoring the mail.[19]  In any event, the Authority has held that untimely filings caused by delays or problems with an internal mail system do not present extraordinary circumstances.[20]  

 

Next, the Union alleges that the July order incorrectly stated that the Union did not request an extension.[21]  Contrary to the Union’s allegation, the July order stated that “the Union’s extension . . . request does not comply with the Authority’s [R]egulations.”[22]  Under § 2429.23(a) of the Authority’s Regulations, extension-of-time requests must be received no later than five days before the established time frame for the filing and must state the other parties’ positions.[23]  Although the May order was delivered to the Agency’s internal mail room on May 23, making it impossible for the Union to file an extension‑of‑time request five days before the May 24 deadline, the Union did not exercise due diligence in retrieving, or responding to, the May order.[24]  The Authority has repeatedly affirmed that the postmark date determines the filing date,[25] and the envelope in which the Union mailed its extension request was postmarked June 18.  Thus, the May order was delivered on May 23,[26] the Union picked up the order from the mail room on June 1,[27] and yet the Union did not file its extension request until June 18.  Moreover, it is undisputed that neither the Union’s extension request nor the Union’s response to the July order states the Agency’s position regarding the request.[28]  Consequently, the Union’s argument does not present extraordinary circumstances justifying a waiver.[29] 

 

                Lastly, the Union claims that it “sen[t] the requested information to the Authority.”[30]  However, the Union did not provide any documentary evidence that the May order directed it to provide.[31]  Therefore, the Union did not comply with the Authority order, and extraordinary circumstances do not exist to justify a waiver of the expired deadline.[32] 

 

Based on the above, we dismiss the Union’s exceptions.           

 

1. Order

 

We dismiss the exceptions.