National Association of Government Employees, Local R14-89 and U.S. Department of the Army, Army Air Defense Artillery Center and Fort Bliss (Authority decision, January 31, 1992)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying reconsideration of a negotiability petition dismissal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The National Association of Government Employees sought review of a negotiability dispute with the Army's Fort Bliss installation. The Authority dismissed the union's petition after it failed to correct a filing deficiency, then the union asked for reconsideration, saying it had not received either of two deficiency orders. A signed certified-mail receipt showed that the union received the first order, which warned that failure to comply could lead to dismissal. The Authority acknowledged that it lacked proof the union received the second order and should not have relied on that order in dismissing the petition. Because the first uncorrected deficiency independently supported dismissal, the Authority found no extraordinary circumstances and denied reconsideration.

Decision snapshot

• Authority: Reconsideration for extraordinary circumstances under 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; dismissal of the union's negotiability petition remained in place.
• Key point: The first, received deficiency order independently supported dismissal despite the absence of proof that the second order arrived.

Full text (FLRA public release)

[ v43 p1276 ]
43:1276(104)NG

The decision of the Authority follows:

43 FLRA No. 104

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES

LOCAL R14-89

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, ARMY AIR DEFENSE ARTILLERY
CENTER

AND FORT BLISS

FORT BLISS, TEXAS

(Agency)

0-NG-1936

(43 FLRA 267 (1991))

ORDER DENYING MOTION FOR RECONSIDERATION

January 31, 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 filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Union requests reconsideration of the Authority's Order of November 22, 1991, which dismissed the Union's petition for review because the Union had failed to comply with prior deficiency Orders of the Authority. The Agency did not file an opposition to the Union's request.

For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist warranting reconsideration of the Order dismissing the petition. Accordingly, we will deny the motion for reconsideration.

II. Background

On April 29, 1991, the Union filed its petition for review with the Authority. On May 14, 1991, the Authority issued an Order directing the Union to correct a deficiency in its petition. The Authority directed the Union to file an original and four copies of a statement addressing whether a concurrent unfair labor practice charge had been filed and, if so, to indicate under which procedure it chose to proceed. The Union was informed that failure to comply with the Order could result in dismissal of its petition. On June 19, 1991, the Authority received a signed certified mail return receipt card acknowledging receipt by the Union of the May 14 Order. To date, the Union has not filed a response to the May 14 Order and has not cured the deficiency.

On June 4, 1991, the Agency filed its Statement of Position (Statement). On June 26, 1991, the Union filed its response to the Agency's Statement with the Authority but failed to serve its response on the Agency's representative of record. On July 12, 1991, the Authority issued a second deficiency Order. The Authority again directed the Union to comply with the May 14 Order and further directed the Union to serve its response to the Agency's Statement on the Agency's representative of record. To date, the Union has not filed a response to the July 12 Order. The Authority has not received a signed return receipt indicating that the Union received the July 12 Order.

By Order of November 22, 1991, the Authority dismissed the Union's petition for the Union's failure to respond to the May 14 and July 12 Orders. On December 11, 1991, the Authority received a signed return receipt indicating that the Union had received the November 22 Order. All of the Authority's orders were mailed to the Union at the same address.

III. The Union's Motion for Reconsideration

The Union requests the Authority to reconsider its decision dismissing the Union's petition. The Union asserts that it "did not receive a copy of the May 14, 1991 or the July 12, 1991 Order." Motion at 2 (emphasis in original). The Union argues that as it "never received the Orders upon which the Authority's decision is based, it is impermissible for the Authority to dismiss the Union's Petition on the ground that the Union failed to respond to its Orders." Id.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to request reconsideration of a decision of the Authority. We find that the Union has not established the existence of extraordinary circumstances within the meaning of section 2429.17 that warrant reconsideration of the Authority's Order dismissing the petition.

As stated above, the Authority received a signed certified mail return receipt card acknowledging receipt by the Union of the Authority's May 14 Order. There is no assertion that the individual who signed the certified return receipt card was unauthorized to do so. Under these circumstances, we reject the Union's assertion that it did not receive the May 14 Order.

The Union was informed in the May 14 Order that failure to comply with that Order may result in the dismissal of its petition. To date, the Union has failed to cure the May 14 deficiency.

As stated above, the Authority has not received a signed return receipt indicating that the Union received the July 12 Order. Accordingly, the previous Order dismissing the petition should not have relied on the Union's failure to comply with that Order. However, the Union's failure to receive the July 12 Order does not require us to grant the request for reconsideration because the Union's failure to comply with the May 14 Order was a proper basis on which to dismiss the Union's petition. Accordingly, we conclude that the Union has not established extraordinary circumstances which warrant reconsideration of the dismissal of the petition.

V. Order

The Union's motion for reconsideration of the Authority's Order in 43 FLRA 267 is denied.

FOOTNOTES:
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have footnotes.)