United States Department of Homeland Security, Immigration and Customs Enforcement (Agency) and American Federation of Government Employees, Local 222, National Council 118, Immigration and Customs Enforcement (Union) (Authority decision, June 24, 2010)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority concerning exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This order dismisses a reconsideration motion on filing grounds and does not state that it involves an unfair labor practice.

Plain-English summary

Immigration and Customs Enforcement sought reconsideration after the Authority dismissed its exceptions to an arbitration award. The agency filed its reconsideration motion after the deadline and requested a waiver without stating the union's position, which the Authority's rules require. The Authority found no basis to reverse its denial of that waiver, especially because the agency had received the earlier dismissal order before the deadline. It also held that a rule allowing additional documents could not replace the filing requirements for a recognized reconsideration motion. The motion was dismissed as untimely; the Authority did not decide the underlying arbitration dispute.

Decision snapshot

• Authority: 5 C.F.R. §§ 2429.21(a), 2429.22, 2429.23(b)-(c), and 2429.26(a).
• Outcome: Agency motion for reconsideration dismissed as untimely.
• Key point: A waiver request must state the other party's position, and a general leave-to-file rule does not bypass reconsideration deadlines.

Full text (FLRA public release)

MEMORANDUM

64 FLRA No.
174

FEDERAL LABOR
RELATIONS AUTHORITY

WASHINGTON,
D.C.

_____

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY

IMMIGRATION AND
CUSTOMS ENFORCEMENT

(Agency)

and

AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 222

NATIONAL COUNCIL
118

IMMIGRATION AND
CUSTOMS ENFORCEMENT

(Union)

0-AR-4525

_____

ORDER DISMISSING
MOTION FOR RECONSIDERATION

June 24, 2010

_____

Before the
Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

I. Statement
of the Case

This matter is before the Authority on the Agency’s response to an order directing the Agency to show cause why its motion for reconsideration of an earlier dismissal order should not be dismissed as untimely. For the reasons that follow, we dismiss the motion for reconsideration.

II. Background

The Agency filed exceptions to an arbitration
award, and the Authority issued an order directing the Agency to show cause (July 10 Order) why its exceptions should not be dismissed as interlocutory. Order to Show Cause (July 10, 2009). The July 10 Order stated that the Agency’s response was due by July 24 and that the Agency’s failure to comply with the order “may result in dismissal of the exceptions.” Id. at 3.

The Agency did not file a response until August
4, 2009 (August 4 Response). The Agency acknowledged that its response was untimely but did not request a waiver of the expired time limit, as required by
§? ?2429.23 of the Authority’s Regulations.[1] Accordingly, on September 30, 2009, the Authority dismissed the exceptions. See Order Dismissing Exceptions (Sept. 30, 2009) (Dismissal Order) at 2.

Although any motion for reconsideration of the
Dismissal Order was due by October 19, 2009, and the Agency conceded that it received the Dismissal Order on October 16, the Agency did not file its motion for reconsideration until October 26.[2] Unlike the August 4 Response, the Agency’s motion for reconsideration included a request for waiver of the expired time limit; however, the Agency did not provide the Union’s position on the waiver request, as required by § 2429.23(b).

On March 10, 2010, the Authority denied the
Agency’s request for a waiver of the expired time limit because the Agency had failed to state the Union’s position on the waiver request. Order to Show Cause (March 10 Order) at 2. The March 10 Order also directed the Agency to show cause why its motion for reconsideration should not be dismissed as untimely.

In response to the March 10 Order, the Agency
argues that the Authority failed to serve the Dismissal Order by fax, and that this precluded the Agency from timely requesting reconsideration.[3] See Resp. to March 10 Order at 1. The Agency states that the Union “has confirmed” that it would not have agreed to a time-limit waiver for the motion for reconsideration. See id. at 3 n.3. Moreover, the Agency requests that the Authority consider the motion and the Agency’s previous filings, without regard to any time limits for filing, under §? ?2429.26(a), which provides that the Authority may grant leave to file “other documents” as appropriate.[4] See id. at 1 n.1, 4. Finally, the Agency questions whether, by denying its request to waive the expired deadline for reconsideration of the Dismissal Order, the Authority has “prejudged” the Agency’s response to the March 10 Order. See id. at 3 n.2.

III. Analysis and Conclusions

The Authority does not entertain relitigation of matters that were already decided in earlier proceedings. See NTEU, Chapter 207, 29 FLRA 1465, 1467-68 (1987) (order denying request for reconsideration) (Chairman Calhoun dissenting) (declining agency requests to “reopen[] and reexamin[e]” earlier decisions regarding compelling need and negotiability); cf. U.S. DOD, Def. Logistics Agency, Def. Distrib. Region, W. Stockton, Cal., 48 FLRA 543, 544-45 (1993) (order denying request for reconsideration); N.Y. State Nurses Ass’n, 34 FLRA 805, 808 (1990) (same). The March 10 Order denied the Agency’s request for a time-limit waiver for its reconsideration motion because the request failed to state the Union’s position regarding the request, as §? ?2429.23(b) expressly requires. See March 10 Order at 2; see also 5 C.F.R. § 2429.23(c) (Authority “may not” grant waiver requests that do not meet requirements of § 2429.23); Resp. to March 10 Order at 3 n.3 (conceding that waiver request did not state Union’s position). In addition, even if the Agency had stated the Union’s position on the waiver request, the Agency failed to explain why it did not timely file its reconsideration motion, given its concession that, despite the Authority’s inadvertent failure to serve the Agency’s representative with the Dismissal Order by fax, the Agency received the Dismissal Order prior to the deadline for requesting reconsideration.[5] See Mot. for Recons. at 3 & n.2; see also supra note 2.

The Agency asserts that the March 10 Order’s
denial of its waiver request was an inappropriate “prejudg[ment]” of the issue because, according to the Agency, the “essence of the Show Cause Order” was a request for the Agency’s arguments on whether a waiver should be granted. Resp. to March 10 Order at 3 n.2. However, the Agency could have responded to the March 10 Order by, for example, demonstrating that the Agency had, in fact, timely filed its reconsideration motion. See, e.g., Haw. Fed. Employees Metal Trades Council, 57 FLRA 450, 452 (2001) (responding to show-cause order, agency produced certified mail receipts and affidavit, establishing timely date of service that differed from apparently untimely metered postmark on envelope in which filing was served). Thus, although the March 10 Order disposed of the request for a time-limit waiver under §? ?2429.23, it did not “prejudge” the issue of whether the Agency could demonstrate the timely filing of its motion for reconsideration in some other manner.

For the foregoing reasons, the Agency provides
no basis to reverse the decision in the March 10 Order not to grant a time-limit waiver for the motion for reconsideration.[6]

With regard to the Agency’s reliance on §? ?2429.26(a) of the Authority’s Regulations,[7] as stated previously, that regulation provides that the Authority may, in its discretion, grant leave to file “other documents” as deemed appropriate. E.g., Cong. Research Employees Ass’n, IFPTE, Local 75, 59 FLRA 994, 999 (2004). Under that regulation, the filing party must demonstrate why its submission should be considered. NTEU, Chapter 98, 60 FLRA 448, 448 n.2 (2004). However, both the wording of §? ?2429.26(a) and the aforementioned decisions indicate that this provision permits parties to file other documents, and not any documents. Put simply, §? ?2429.26 applies only to documents other than recognized filings; it does not apply in lieu of the requirements for those recognized filings. In this regard, if the Agency were correct, then a party that failed to comply with an applicable time limit in the Authority’s Regulations could simply request a “document review” of the untimely filing under §? ?2429.26(a). This approach would render meaningless the Authority’s filing deadlines.

For the foregoing reasons, the
Agency’s response to the March 10 Order does not provide a basis for considering its untimely motion for reconsideration, and we dismiss that motion.

IV. Order

The motion for reconsideration is dismissed.

[1] In pertinent part, §? ?2429.23
provides, subject to certain exceptions not relevant here:

(b) . . . [T]he Authority . . . may
waive any expired time limit . . . in extraordinary circumstances. Request for a waiver of time limits shall state the position of the other parties and shall be served on the other parties.

(c) The time limits . . . may
not be extended or waived in any manner other than that described in this
[section].

5 C.F.R. §? ?2429.23 (emphases added).

[2] Although the Agency
conceded that it received the Dismissal Order on October 16, it asserted that its representative did not receive the Order until October 23. Mot. for Recons. at 3 & n.2. However, the Agency offered no explanation for the delay between the Agency’s receipt and the representative’s receipt. Moreover, delays resulting from internal mail procedures or errors do not establish extraordinary circumstances for waiving time limits. Cf. NTEU, 64 FLRA 833, 835 (2010). Finally, we note that, pursuant to a standing request from the Agency, the Authority faxed all Authority orders and other case-related documents, including the Dismissal Order, to the Agency’s Chief Human Capital Officer on the same day that the Authority mailed them to the Agency’s representative. See, e.g., Statement of Service for Dismissal Order (Sept. 30, 2009) at 2.

[3] The Agency also argues
that the Authority miscalculated the reconsideration deadline; according to the Agency, the correct deadline was October 15 (fifteen days after September 30 Dismissal Order). See Resp. to March 10 Order at 2. The Agency is incorrect because the ten-day reconsideration deadline and the five-day mail-service extension, which applies because the Authority served the Dismissal Order by mail, see 5 C.F.R. § 2429.22, are computed separately, and, if either period would expire on a Saturday, Sunday, or a federal legal holiday, then the period is deemed not to expire until the end of the next workday. 5 C.F.R. § 2429.21(a); see U.S. Dep’t of Justice, Bureau of Prisons, Metro. Corr. Ctr., N.Y, N.Y., 25 FLRA 102, 103 (1986). As applied here, the due date for reconsideration was October 19, 2009.

[4] We note that the Agency
also relied on § 2429.26(a) in its August 4 Response and its motion for reconsideration.

[5] As noted previously, supra
note 2, although the Authority did not fax the Dismissal Order to the Agency’s representative, the Authority did fax it to the Agency’s Chief Human Capital Officer on the same day that the Authority mailed it to the Agency’s representative. See Statement of Service for Dismissal Order (Sept. 30, 2009) at 2.

[6] As set forth above, we
note that even if the Agency had properly requested and received a time-limit waiver for its motion for reconsideration, and the Authority re-examined the Agency’s August 4 Response to the July 10 Order, the fact remains that the August 4 Response was itself untimely and did not include a request for time-limit waiver, as required by §? ?2429.23.

[7] As the Agency has raised
§ 2429.26(a) in several of its filings, and the Authority previously has not addressed the Agency’s reliance on that regulation, we find it appropriate to do so here.