Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49 (Authority decision, September 22, 1988)

Final FLRA decision. The Authority denies the IRS's request to waive the deadline for reconsideration of an earlier decision. The earlier decision remains in force. Judicial review of an order concerning an arbitral award is generally excluded by 5 U.S.C. § 7123(a)(1) unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

The IRS asked the Authority to reconsider an earlier arbitration decision after the filing deadline expired. Its attorney had been away at training and said he could not review the decision until he returned. The Authority calculated that the request was due June 27, 1988, but the IRS mailed it on or after June 28. The attorney's absence did not show the extraordinary circumstances needed to waive the deadline. The Authority denied the waiver request and did not reach the reconsideration motion.

Decision snapshot

• Authority: Reconsideration deadline and waiver under 5 C.F.R. §§ 2429.17 and 2429.23(b).
• Outcome: IRS waiver motion denied; reconsideration motion not considered.
• Key point: An attorney’s absence for training did not justify waiving an expired filing deadline.

Full text (FLRA public release)

[ 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