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44 FLRA No. 6

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

PHOENIX DISTRICT

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 33

(Union)

0-AR-2134

(43 FLRA 686 (1991))

ORDER DISMISSING MOTION FOR RECONSIDERATION

February 25, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion for reconsideration of 43 FLRA 686 (1991) filed by the Agency under section 2429.17 of the Authority's Regulations. The Union did not file an opposition to the motion for reconsideration. For the following reasons, we conclude that the motion was untimely filed and must be dismissed.

II. The Decision in 43 FLRA 686

In 43 FLRA 686, we addressed, as relevant here, Agency exceptions to a portion of an arbitration award directing the Agency to reimburse the Union for certain witness expenses incurred in connection with a previous grievance over a conduct-based reduction in rank and grade of an employee. We concluded that, as the disputed portion of the award related to a matter described in section 7121(f) of the Statute, we were without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions. Accordingly, we dismissed the exceptions.

III. The Agency's Motion for Reconsideration

The Agency argues that the Authority should reconsider its decision that it did not have jurisdiction to review the Agency's exceptions because, in the Agency's view, the award did not relate to a matter described in section 7121(f) of the Statute. The Agency also argues that it was "unduly prejudiced" by the Authority's decision because "the deadline for filing an appeal . . . with the Federal Circuit passed during the pendency of this case." Motion for Reconsideration at 7.

IV. Analysis and Conclusions

Section 2429.17 of our Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. Section 2429.17 of the Regulations provides that any such request for reconsideration must be filed within 10 days after service of the Authority's decision.

The decision in 43 FLRA 686 was issued on December 20, 1991, and was deposited by certified mail in the U.S. mail on that date. Accordingly, a motion for reconsideration of the decision had to be postmarked by the U.S. Postal Service or received in person by the Authority no later than January 6, 1992, in order to be considered timely filed. See 5 C.F.R. §§ 2429.17, 2429.21(b), 2429.22.

As the Agency's motion for reconsideration was filed after expiration of the 10-day period set forth in 5 C.F.R. § 2429.17, the Authority issued an Order directing the Agency to show cause why its motion should not be dismissed as untimely filed. The Agency filed a timely response to the Authority's Order. In the response, the Agency acknowledges that its motion for reconsideration was not timely filed.^(*) The Agency argues, however, that the motion

should be found to have been timely filed, or the expired time limit should be waived.

First, the Agency asserts that the time limit for filing its motion for reconsideration should be calculated from January 3, 1992, the date its representative of record received the decision in 43 FLRA 686. Our Rules and Regulations require that any motion for reconsideration of a final Authority decision or order be filed within 10 days of the date of service of the Authority's final decision or order. U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 38 FLRA 1527, 1530 (1991). As such, the date on which the Agency's representative received the decision is irrelevant.

Second, the Agency asserts that the time limit for filing its motion for reconsideration should be calculated on the basis of 10 workdays rather than 10 calendar days. We reject this argument. Due dates are calculated based on workdays (excluding Saturdays, Sundays and Federal legal holidays) only when the period of time prescribed or allowed is 7 days or less. 5 C.F.R. § 2429.21(a).

Finally, we reject the Agency's argument that the "new jurisdictional rule" applied in 43 FLRA 686 justifies a waiver of the expired time limit for filing a request for reconsideration. Response to Order to Show Cause at 4. Section 2429.23(b) of our Rules and Regulations permits a waiver of an expired time limit in "extraordinary circumstances." Although the Agency expresses disagreement with our decision in 43 FLRA 686, the Agency has not shown that the nature of that decision constitutes an extraordinary circumstance warranting waiver of the expired time limit.

In sum, the Agency's motion for reconsideration of our decision in 43 FLRA 686 was untimely filed and the Agency has not established extraordinary circumstances warranting waiver of the expired time limit. Accordingly, the Agency's motion must be dismissed as untimely filed.

V. Order

The Agency's motion for reconsideration is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Agency states that its motion for reconsideration was filed by certified mail on January 13, 1992. The Agency acknowledges, however, that its certified mail receipt was not postmarked. The Authority received the Agency's motion on January 21, 1992. As no postmark is evident on the envelope in which the motion was mailed, it is presumed to have been mailed 5 days prior to receipt. 5 C.F.R. § 2429.21(b). Accordingly, the motion is considered filed on January 16, 1992.

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