Veterans Administration Medical Center Muskogee and AFGE Local 2250 (Authority decision, May 29, 1987)

Final FLRA decision. The Authority dismisses the VA's motion to reconsider an earlier unfair labor practice order as untimely, leaving that order in place. An aggrieved person may seek judicial review of a final Authority order by petitioning 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 order unless the court orders a stay under § 7123(c).

Plain-English summary

The Muskogee Veterans Administration Medical Center sought reconsideration of a February 20, 1987 Authority order finding that some of its conduct violated the labor statute. Its motion was due by March 9 under the filing rules the Authority applied. The envelope had no visible postmark, so the Authority presumed it had been mailed five days before receipt on March 16, making the filing date March 11. The Authority dismissed the motion as late without revisiting the earlier violation finding.

Decision snapshot

• Authority: Reconsideration and filing rules under 5 C.F.R. §§ 2429.17, 2429.21(b), and 2429.22.
• Outcome: VA reconsideration motion dismissed as untimely.
• Key point: An envelope without a postmark received on March 16 was presumed mailed on March 11, after the March 9 deadline.

Full text (FLRA public release)

[ v27 p200 ]

27:0200(33)CA

The decision of the Authority follows:

27 FLRA No. 33

VETERANS ADMINISTRATION
VETERANS ADMINISTRATION
MEDICAL CENTER
MUSKOGEE, OKLAHOMA
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2250
Union

Case Nos. 6-CA-50105
6-CA-50106
(25 FLRA No. 71)

ORDER DISMISSING MOTION FOR RECONSIDERATION

This case is before the Authority on a motion filed by the Respondent Agency seeking reconsideration of the Authority's Order of February 20, 1987, finding that certain conduct of the Respondent was violative of the Statute. For the reason set forth below, the Respondent's motion for reconsideration must be dismissed.

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 and Order was dated and served on the Respondent by mail on February 20, 1987. Therefore, under section 2429.17 of the Authority's Rules and Regulations as well as sections 2429.21(b) /1/ and 2429.22 which also are applicable to computation of the time limit here involved, the Agency's motion for reconsideration in order to be timely filed 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 March 9, 1987, or if filed in person, received at the Authority's national office no later than the close of business on the same date. However, if no postmark date is evident on a mailing, the Authority's Rules require the presumption that it was mailed five (5) days prior to receipt. Respondent's motion dated March 9, 1987, was received by the Authority on March 16, 1987. As no postmark date is evident on the "Official Business" envelope containing the motion, it is presumed that the motion was mailed on March 11, 1987 -- five (5) days prior to receipt by the Authority. Therefore, as the Respondent's motion was not filed until March 11, 1987, it was untimely and must be dismissed.

Accordingly, for the reason set forth above, and apart from other considerations, the Respondent's motion for reconsideration is hereby dismissed.

For the Authority.

Issued, Washington, D.C., May 29, 1987.

/s/ Harold D. Kessler
Director of Case Management

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

(1) Subsection 2429.21(b) of the Authority's Rules and Regulations, applicable to motions for reconsideration filed with the Authority on or after December 31, 1986, provides in pertinent part:

Section 2429.21 Computation of time forfiling papers.

. . . . . . .

(b) Except when filing an unfair labor practice charge . . . , a representation petition . . . , and a request for extension of time . . . , when this subchapter requires the filing of any paper with the Authority . . . , the date of filing shall be determined by the date of mailing indicated by the postmark date. If no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt. If the filing is by personal delivery, it shall be considered filed on the date it is received by the Authority . . . . 51 Fed. Reg. 45751 (1986).)