Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York and American Federation of Government Employees, Local 3148 (Authority decision, December 4, 1986)

FLRA interlocutory decision. The Authority reopens an unfair labor practice case for further processing. It does not decide the underlying complaint, so this order does not start a judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

The Authority had adopted a judge's unfair labor practice decision after treating the union's exceptions as late. On reconsideration, it recalculated the filing deadline by accounting for weekends and five extra days for mail service. That made the union's June 23 filing timely. The Authority rescinded its earlier order, reopened the case, and set a deadline for responses to the exceptions. It did not decide the underlying complaint in this order. The Authority later resolved the complaint after this reopening order; that later merits decision did not undo the reopening.

Decision snapshot

• Authority: Reconsideration and filing deadlines under 5 C.F.R. §§ 2429.17, 2429.21, and 2429.22.
• Outcome: Prior adoption order rescinded; case reopened.
• Key point: The mailing extension was added after adjusting the initial deadline for a weekend.

Full text (FLRA public release)

[ v25 p102 ]

25:0102(7)CA

The decision of the Authority follows:

25 FLRA No. 7

UNITED STATES DEPARTMENT OF
JUSTICE, BUREAU OF PRISONS,
METROPOLITAN CORRECTIONAL
CENTER, NEW YORK, NEW YORK
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3148
Charging Party

Case No. 2-CA-60082

ORDER GRANTING REQUEST FOR RECONSIDERATION

This matter is before the Authority pursuant to the Charging Party's request for reconsideration of the Authority's Order of June 30, 1986. The Order adopted, without precedential significance, pursuant to section 2423.29(a) of the Authority's Rules and Regulations, as amended (5 CFR Section 2423.29(a) (1986)), the findings, conclusions, and recommendations in the Decision and Order of the Administrative Law Judge. The Authority's Order was based on its finding that no exceptions to the Decision and Order of the Administrative Law Judge in the subject case were filed with the Authority within the time limit established by the Administrative Law Judge for such filings. As stated in the Judge's May 20, 1986 "Notice of Transmittal of Decision," exceptions to the Judge's Decision were due on or before June 19, 1986. However, the Charging Party's exceptions were not filed until June 23, 1986. The Agency filed a response to the Charging Party's request for reconsideration asking that the Authority uphold its Order of June 30, 1986.

Section 2429.17 of the Rules and Regulations provides that in "extraordinary circumstances" the Authority may grant a request for reconsideration. For the reasons which follow, we have determined that the Charging Party's exceptions were timely filed and that the request for reconsideration should be granted.

In arriving at the stated due date for any exceptions to his Decision to be filed with the Authority, it is apparent that the Judge interpreted sections 2423.26(c), 2429.21, and 2429.22 of the Authority's regulations as providing a total of 30 days from the date of service of the Decision and Order for the filing to be accomplished. It appears further that the Judge computed this 30-day period by adding the 25 days allowed under section 2423.26(c) for filing exceptions and the 5 days permitted under section 2429.22 because the Decision and Order was served by mail. This method of calculation yields the due date used by the Judge in his "Notice of Transmittal of Decision": June 19, 1986.

However, the Authority uses a different method of computing time periods when the 5 days permitted under section 2429.22 of its regulations is to be added. We first determine the expiration date of the period prescribed for filing under applicable regulations, with due allowance for weekends and holidays as required by section 2429.21. Once this due date is determined, the 5 additional days authorized under section 2429.22 because of service by mail is added. /1/

Applying the Authority's procedure to the subject case, we calculate the due date for exceptions as follows: Under section 2423.26(c) of our regulations and excluding other calculations, any exceptions to the Decision and Order had to be filed with the Authority by June 14, 1986. However, section 2429.21 provides that if a due date falls on a Saturday, Sunday, or Federal legal holiday, the time limit "shall run until the end" of the next work day. Because June 14 was a Saturday, the time limit for filing exceptions was extended to the close of business on Monday, June 16, 1986. In addition, because the Decision and Order was served by mail, section 2429.22 authorizes the addition of 5 days to the due date. Therefore, as extended by the operation of section 2429.22, the due date was June 21, 1986. As June 21 was a Saturday, section 2429.21 again extended the time limit for filing exceptions to the end of the next work day -- Monday, June 23, 1986.

Thus, under the Authority's calculation procedure, /2/ the Charging Party's exceptions were timely filed with the Authority on June 23, 1986. Therefore, our Order of June 30, 1986, is hereby rescinded and the case is reopened for futher processing.

Any party may file an opposition to the Charging Party's exceptions and/or cross-exceptions, and a supporting brief with the Authority. Such submissions must be filed with the Authority no later than December 24, 1986. Copies of any opposition and/or cross-exceptions and of any supporting briefs must be served on all other parties, and a statement of such service must be included with any submission to the Authority.

Issued, Washington, D.C., December 4, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) Compare Kessler Institute for Rehabilitation v. NLRB, 669 F.2d 138, 141 (3rd Cir. 1982) (interpreting analogous regulations of the NLRB in a similar manner).

(2) On September 23, 1986, the Authority published in the Federal Register (51 Fed. Reg. 33,838 (1986)) for comment a rule which would date filing from deposit in the U.S. mail. The closing date for comments was October 23, 1986.