United States Department of Transportation, Federal Aviation Administration, Flight Standards Service, 220 and 230 Branches, Northwest Mountain Region, Renton, Washington (Agency) and Professional Aviation Safety Specialists (Union/Petitioner) (Authority decision, June 17, 2015)

FLRA representation decision. This order denies reconsideration of the dismissal of an agency application to review a regional director's direction of a representation election. It does not decide how employees will vote or certify an election result, so this banner does not present the 60-day judicial-review period in 5 U.S.C. § 7123(a) as running from this order.

Plain-English summary

A regional director ordered a representation election for employees in two Federal Aviation Administration branches. The agency filed its application for Authority review three days late, then missed a separate deadline requiring its explanation to be received by the Authority. The Authority dismissed the application, and the agency sought reconsideration because its explanation had been postmarked before the second deadline. The Authority held that the show-cause order expressly required receipt by the deadline, which the agency did not meet. It denied reconsideration and left the procedural dismissal in place; this order did not determine the election result.

Decision snapshot

• Authority: 5 U.S.C. § 7123(a); 5 C.F.R. §§ 2422.31(a), 2429.17, and 2429.21(b)(1)(i)
• Outcome: The Authority denied reconsideration of the dismissal of the agency's late application for review.
• Key point: A postmark before the due date did not satisfy a show-cause order that required actual receipt by that date.

Full text (FLRA public release)

68 FLRA No. 111

UNITED STATES

DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FLIGHT STANDARDS SERVICE
220 AND 230 BRANCHES
NORTHWEST MOUNTAIN REGION
RENTON, WASHINGTON
(Agency)

and

PROFESSIONAL AVIATION SAFETY SPECIALISTS
(Union/Petitioner)

DE-RP-14-0020

_____

ORDER DENYING

MOTION FOR RECONSIDERATION

June 17, 2015

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

I. Statement of the Case

Acting Regional Director (RD) Timothy J. Sullivan of the Federal Labor Relations Authority issued a decision and order (decision) directing a representation election.[1] The Agency filed, with the Authority, an untimely application for review (application) of the RD’s decision. The Authority then issued an order directing the Agency to show cause why the Authority should not dismiss its application as untimely (the show‑cause order), and the Agency submitted an untimely response to that order. Because the Agency did not timely respond to the show‑cause order, the Authority dismissed the Agency’s application for failure to comply with that order. The Agency subsequently filed a motion for reconsideration (motion) requesting that the Authority reconsider that procedural dismissal.

The question before us is whether to grant the Agency’s motion. For the reasons stated below, the Agency has failed to establish the extraordinary circumstances necessary to warrant reconsideration. Therefore, the answer is no.

II. Background

On November 28, 2014, the RD issued a decision directing an election. The decision noted that, under § 2422.31(a) of the Authority’s Regulations, a party could file, with the Authority, an application for review within sixty days of the date of the decision.[2] Under § 2422.31(a) of the Authority’s Regulations, the time limit for this filing “may not be extended or waived.”[3] Because the decision was dated November 28, 2014, the Agency had to file its application no later than January 27, 2015, in order for it to be timely.[4] The Agency filed its application by certified mail on January 30, 2015.

On February 3, 2015, the Authority’s Office of Case Intake and Publication (CIP) issued the show‑cause order, directing the Agency to show cause why the Authority should not dismiss the Agency’s application as untimely. The show‑cause order stated that the Authority “must receive the Agency’s response [to the show‑cause order] no later than 5:00 p.m. E.T. on Friday, February 13, 2015,”[5] and that failure to comply with the show­‑cause order “will result in the Authority dismissing this case.”[6]

The Agency submitted a response to the show‑cause order. Although the Agency’s response was postmarked on February 11, 2015, the Authority did not receive it until February 18, 2015.[7] CIP therefore found that the Agency’s response was untimely, and dismissed the Agency’s application for failure to comply with the show‑cause order.[8]

The Agency filed a motion requesting reconsideration of CIP’s procedural dismissal.

III. Analysis and Conclusion

Section 2429.17 of the Authority’s Regulations permits a party “who can establish . . . extraordinary circumstances” to request reconsideration of an Authority decision.[9] A party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.[10] When a moving party acknowledges that it received an Authority decision or order containing a deadline, and therefore could have filed its submission in a timely manner, the Authority has not found that extraordinary circumstances exist to excuse an untimely filing.[11]

In its motion for reconsideration, the Agency argues that CIP’s procedural dismissal amounts to a “repeal of [the Authority’s] own [r]ules and [r]egulations.”[12] In this regard, the Agency points to § 2429.21(b)(1)(i) of the Authority’s Regulations, which states that “[i]f [a party’s] mailing contains a legible postmark date, then that date is the date of filing.”[13] The Agency asserts that, as it postmarked its response two days prior to the deadline specified in the show‑cause order, its response to the show‑cause order was timely.[14] The Agency also asserts that the filing date of its response constitutes “the official receipt by the [Authority] of the document so that it may be considered.”[15] Further, the Agency argues that the Authority’s Regulations do not contemplate the “receipt” of the document.[16] For these reasons, the Agency contends that the date of postmark controls for purposes of determining the timeliness of its submission, and that its response is therefore timely.[17]

The Authority previously has imposed “received-by” deadlines for parties’ submissions in appropriate cases.[18] And, where the Authority has ordered that it must receive a document by a certain due date, and it has not received a document by that date, the Authority has declined to consider that document.[19] Moreover, the Authority has stated that, when the Authority issues an order directing a party to show cause why the Authority should consider a document, and the party’s response does not comply with that order, the Authority will not consider the underlying document.[20]

The Agency correctly notes that, based upon the date of postmark, the filing date of its response preceded, by two days, the deadline set forth in the show‑cause order. [21] Here, however, the show‑cause order expressly imposed a “received-by” date, which the Agency concededly did not meet. Although the Authority’s Regulations that the Agency cites speak in terms of “filing,” nothing in these Regulations precludes the Authority from imposing received-by dates in appropriate cases. The Agency also argues that the RD gave the wrong due date for filing an application for review of his decision, and that this constitutes extraordinary circumstances.[22] However, the Agency does not explain how an incorrect date in the RD’s decision establishes extraordinary circumstances regarding the Agency’s failure to comply with CIP’s show-cause order. Accordingly, the Agency’s arguments provide no basis for finding extraordinary circumstances that warrant the Authority’s reconsideration of CIP’s procedural dismissal.[23]

IV. Decision

We deny the Agency’s motion for reconsideration.

[1] RD’s Decision at 10.

[2] Id. (citing 5 C.F.R. § 2422.31(a)).

[3] 5 C.F.R § 2422.31(a).

[4] Id. §§ 2422.31, 2429.21, 2429.22(c), 2429.24.

[5] Show-Cause Order at 2.

[6] Id. (emphasis added).

[7] Dismissal Order at 1.

[8] Id. at 2 (citing U.S. Dep’t of the Navy, Fleet Readiness Ctr. Se., Jacksonville, Fla., 64 FLRA 12, 13-14 (2009); AFGE, Local 1417, 63 FLRA 349, 350 (2009) (Local 1417)).

[9] 5 C.F.R. § 2429.17.

[10] U.S. DHS, U.S. CBP, 68 FLRA 109, 110 (2014).

[11] See, e.g., AFSCME, Local 3870, 50 FLRA 445, 448 (1995); IRS, Indianapolis Dist., 32 FLRA 1235, 1236 (1988).

[12] Recons. Mot. at 3.

[13] 5 C.F.R § 2429.21(b)(1)(i).

[14] Recons. Mot. at 6.

[15] Id.

[16] Id.

[17] Id. at 8-9.

[18]E.g., NASA, Goddard Space Flight Ctr., Wallops Island, Va., 67 FLRA 258, 260-61 (2014) (directing the parties to file certain briefs, and stating that the “Authority will consider briefs . . . that the Authority receives on or before March 31, 2014”(emphasis added)).

[19]NASA, Goddard Space Flight Ctr., Wallops Island, Va., 67 FLRA 670, 672 (2014) (finding a union’s brief untimely and declining to consider it after the Authority stated that the brief “must be received [by the Authority] on or before March 31, 2014,” but it did not receive the brief until several days after the due date (internal quotation marks omitted)).

[20] Local 1417, 63 FLRA at 350 (dismissing exceptions for failure to comply with Authority deficiency order and subsequent order to show cause); cf. U.S. Dep’t of VA, 60 FLRA 479, 479 n.1 (2004) (declining to consider filing where party failed to respond to deficiency order and failed to comply with subsequent order to show cause).

[21] 5 C.F.R § 2429.21(b)(1)(i).

[22] Recons. Mot. at 7.

[23] See, e.g., SSA, Office of Disability Adjudication & Review, Balt. Md., 67 FLRA 297, 298 (2014) (argument unsupported by any statutory or regulatory authority did not establish extraordinary circumstances necessary to warrant reconsideration).