U.S. Department of the Treasury, Internal Revenue Service, Chicago District and National Treasury Employees Union, Chapter 10 (Authority decision, December 27, 1991)

Final FLRA representation decision. The Authority dismisses the agency's application for review of a regional director's unit clarification order as untimely. The underlying unit order remains in place. Section 7123(a)(2) excludes orders involving appropriate-unit determinations from the ordinary 60-day judicial-review provision.

Plain-English summary

The IRS asked the Authority to review a regional director's unit clarification order. Its application had to be filed by November 25, 1991. The agency's envelope had no postmark, and the Authority received it on December 2. Under the filing rule, the Authority presumed a mailing date of November 27, two days after the deadline. The agency's own dated certified-mail receipt and affidavits did not satisfy the rule for proving timely service. Because the deadline could not be extended or waived, the Authority dismissed the application without reaching the unit question.

Decision snapshot

• Authority: Review deadline under 5 C.F.R. § 2422.17(a); no-postmark mailing presumption under § 2429.21(b).
• Outcome: Agency application for review dismissed as untimely.
• Key point: An envelope without a postmark can trigger a presumed mailing date that makes a filing late, even when the sender has its own dated receipt.

Full text (FLRA public release)

[ v43 p827 ]
43:0827(67)CUA

The decision of the Authority follows:

43 FLRA NO. 67

U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
AND
INTERNAL REVENUE SERVICE
CHICAGO DISTRICT
CHICAGO, ILLINOIS
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 10
(Labor Organization/Petitioner)

5-CU-00016

ORDER

December 27, 1991

The Agency has filed an application for review of the Regional Director's Decision and Order in the above-captioned case. On December 5, 1991, the Authority issued an order directing the Agency to show cause why its application should not be dismissed as untimely filed. The Agency filed a timely response to the Authority's Order. For the reasons set out below, the Agency's application is untimely and must be dismissed.

The Authority's Regulations provide that "(a) party may file an application for review of the Regional Director's Decision and Order with the Authority within sixty (60) days of the date of such action." 5 C.F.R. 2422.17(a). The time limit for filing an application for review may not be extended or waived. 5 C.F.R. 2422.17(a) and 2429.23(d).

The Regional Director's Decision and Order in this case is dated September 25, 1991. Any application for review of the Decision and Order had to be filed with the Authority no later than November 25, 1991, to be timely filed.

The Agency's application for review, dated November 25, 1991, was mailed in an envelope without a postmark (postage was paid by the Department of the Treasury as shown by a "penalty mail" label). The Authority received the Agency's application for review on December 2, 1991. Under Section 2429.21(b) of the Authority's Rules and Regulations, if no postmark is evident, a filing is presumed to have been mailed 5 days prior to receipt. The filing date for the Agency's application is therefore, presumed to be November 27, 1991. See Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987).

The Authority's Regulations provide that a return post office receipt or other written receipt executed by the party or person served shall constitute proof of service. 5 C.F.R. 2429.27(b). The Agency's assertion, supported by affidavits and a certified mail receipt dated by the Agency, that it submitted its application for review to the Post Office on November 25, 1991, does not constitute proof of service pursuant to section 2429.27(b) of the Regulations. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877, 879 (1990).

In its response to the Authority's December 5, 1991 Order to Show Cause, the Agency states that it did not question the need for a postmark on the certified mail receipt in its files because: (1) the receipt form indicates that "Postmark or Date" may be entered, and "11/25/91" was entered on the form; (2) the Agency anticipated no mailing problems which would require the application of the presumed mailing date rule in section 2429.21(b); 1/ (3) "the actual piece of certified mail was delivered to a local Chicago, IL post office on November 25, 1991"; and (4) the Agency did not realize that certified mail, when received, would not indicate the date it was "logged in" at the post office.

Parties filing documents with the Authority are responsible for being knowledgeable of the statutory and regulatory filing requirements. See U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 34 FLRA 307, 309 (1990); and U.S. Department of the Navy, Naval Computer and Telecommunications Command, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 1, 42 FLRA 1265 (1991). In addition, as stated above, the time limit for filing an application for review may not be extended or waived by the Authority. 5 C.F.R. 2422.17(a) and 2429.23(d).

Accordingly, as the Agency's application for review was not timely filed, it is dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office

FOOTNOTES

Footnote */ However, the Agency later states that some degree of "Judicial notice" might be taken that, because Thanksgiving was November 28th, the normal flow of mail between Chicago and Washington, D.C., was disrupted.