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.

 

 

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] 

 

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]

 

 

 

 

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