American Federation of Government Employees, Council 157 and Department of the Treasury, U.S. Mint (Authority decision, April 30, 1987)

Final FLRA decision. The Authority denies the union’s request to reconsider dismissal of its untimely negotiability petition. 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

AFGE Council 157 sought reconsideration after the Authority dismissed its negotiability petition as one day late. The union argued that a certified letter dated August 14 could not have been mailed that day because it arrived six days later at a nearby address. The Mint supplied records and declarations supporting August 14 as the mailing date. The Authority found no extraordinary circumstances to revisit the dismissal and noted that the statutory petition deadline could not be extended.

Decision snapshot

• Authority: Negotiability petition deadline under 5 U.S.C. § 7117(c)(2); reconsideration under 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; untimely petition dismissal stands.
• Key point: Delivery several days later did not disprove the documented mailing date.

Full text (FLRA public release)

[ v26 p887 ]
26:0887(103)NG

The decision of the Authority follows:

26 FLRA NO. 103

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 157

Union
and

DEPARTMENT OF THE TREASURY
U.S. MINT

Agency

Case No. O-NG-1319
(23 FLRA No. 66)

ORDER DENYING REQUEST FOR RECONSIDERATION

This case is before us on a request filed by the Union seeking reconsideration of the Authority's Order of September 26, 1986, dismissing the Union's petition for review as untimely filed. The Agency filed an opposition to the Union's request.

Section 2429.17 of the Rules and Regulations provides that a party that can establish "extraordinary circumstances" may petition for reconsideration of a final decision or order of the Authority. For the reasons set forth below, we find that the Union has failed to establish extraordinary circumstances for reconsideration of the Order of September 26, 1986.

As set forth in the Order dismissing the Union's petition, the Agency's allegation of nonnegotiability was dated August 14, 1986, and apparently was served on the Union by mail on the same date. In its petition for review, the Union offered no evidence to rebut the presumption that the date of the allegation and the date of service were the same. Therefore, under sections 2424.3, 2429.21, 2429.22 and 2429.27(d) of the Authority's then applicable Rules and Regulations, the Union's petition for review had to be received in the national office of the Authority no later than the close of business on September 3, 1986. However, the Union's petition was not received until September 4 and therefore was dismissed as untimely. The Order dismissing the petition also noted that under section 2429.23(d) of the Rules and Regulations, the time limit established in section 7117(c)(2) of the Federal Service Labor - Management Relations Statute for filing a petition for review of negotiability issues may not be extended or waived by the Authority.

In its request for reconsideration, the Union does not submit anything to rebut the presumption that the date of the Agency's allegation and the date of service of the allegation on the Union by mail were the same. The Union asserts only that the Agency's allegation could not have been served (placed in the U.S. mail) on August 14, 1986. In the Union's view, "it is inconceivable that a certified letter deposited in the U.S. Mail on a given date, would not be delivered to an address merely three blocks away until some six days later." Moreover, the Union acknowledges receiving the Agency's allegation on August 20, 1986, and does not contend that any extraordinary reason prevented it from timely filing its petition for review.

Not only has the Union failed to substantiate its assertion that the Agency's allegation was not served on August 14, 1986; the Agency's submission in opposition to the Union's request supports the Authority's finding. The Agency has submitted: (1) a copy of its return receipt in the case dated August 14, 1986, by the author of the Agency's allegation of nonnegotiability; (2) a signed and dated declaration by the author of the Agency's allegation stating that on August 14, 1986, she observed the Agency's support services specialist fill out "the certified mall certificate and the green return receipt card" and "put the certified letter in the mail bag that was delivered to the post office that day"; and (3) a signed and dated declaration by the Agency's support services specialist stating that on August 14, 1986, she filled out the certified mail certificate and return receipt, that the letter in question was placed that day with other mail to be delivered to the U.S. Postal Service, and that, "(i)t is the regular practice of the mail room of the United States Mint to deliver certified and registered mail to the Postal Service on the same day the mail room receives it."

In view of the foregoing, we conclude that the Union has failed to establish any "extraordinary circumstances" which would warrant reconsideration of the determination that the Union's petition for review was untimely filed. We emphasize again, as noted in the dismissal order, under section 2429.23(d) of the Authority's rules of procedure, that the time limit established in section 7117(c)(2) of the Statute may not be extended or waived by the Authority. Accordingly, the Union's request for reconsideration is denied.

Issued, Washington, D.C., April 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY