23:0157(19)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR
[ v23 p157 ]
The decision of the Authority follows:
23 FLRA No. 19 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. 0-AR-1113 ORDER DISMISSING EXCEPTIONS This matter is before the Authority on exceptions to the award of Arbitrator Justin C. Smith field by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons that follow, it has been determined that the Agency's exceptions must be dismissed as untimely. This case involves a dispute submitted by the parties to the Arbitrator concerning official time for representational activities. By agreement of the parties, a two-phase arbitration process was established to resolve the basic dispute and the resulting numerous individual grievances. The first phase involved the interpretation of the official time provisions of the Statute and the parties' collective bargaining agreement. In the second phase, the Arbitrator held hearings to resolve, by bench decisions when practicable, specific grievances pending in the various regions of the Agency. The exceptions in this case have been filed to bench decisions of the Arbitrator rendered on May 16, 1985, in which he awarded travel time and preparation time for representatives in the Agency's Boston field office. In December 1985, the Agency requested that the Arbitrator clarify whether his bench decisions were to be considered final awards. The Arbitrator responded to the Agency's request by letter of January 22, 1986, essentially reiterating his position as originally announced in January 1984, that bench awards were to be considered final on the day they were rendered. The Agency then filed its exceptions with the Authority on March 4, 1986. Under section 7122(b) of the Statute, as amended, /1/ section 2425.1 of the Authority's Rules and Regulations, as amended, /2/ which amendments are applicable to these exceptions, and under sections 2429.21 and 2429.22 of the Rules and Regulations, which are also applicable to computation of the time limit involved in this case, any exceptions to the Arbitrator's award of May 16, 1985, had to be filed with the Authority by the close of business on June 14, 1985. The Authority has repeatedly indicated that a party's request for clarification of an award does not operate to extend the time limit for filing exceptions. Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984). Only when an arbitrator in response to a clarification request modifies an award and the modification gives rise to the deficiencies alleged in the exceptions has the Authority held that the filing period for exceptions began with the arbitrator's response to the request for clarification. See U.S. Department of the Interior, Bureau of Land Management, Eugene District Office and National Federation of Federal Employees, Local 1911, 6 FLRA 401, 403 n. 2 (1981). In this case, however, it is clear that in his response of January 22, 1986, the Arbitrator did not modify his bench decisions of May 16, 1985, so as to give rise to the deficiencies alleged by the Agency. To the contrary, the Arbitrator essentially confirmed his January 1984 announcement that bench decisions were to be final when rendered and nothing in his January 22 letter constitutes a clarification of any decision regarding the individual grievances. Thus, the Agency is in effect seeking Authority review of the May 16, 1985, awards and the exceptions filed on March 4, 1986, are clearly untimely. Moreover, from the record before the Authority it is apparent that the Agency considered other related bench awards of this Arbitrator in the parties' official time dispute to be final when rendered and ripe for filing exceptions with the Authority. See American Federation of Government Employees and Social Security Administration, 21 FLRA No. 14 (1986); U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 22 FLRA No. 16 (1986). Accordingly, and apart from other considerations, the Agency's exceptions are dismissed. For the Authority. Issued, Washington, D.C., August 15, 1986. /s/ Harold D. Kessler Harold D. Kessler Director, Office of Case Management FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7122(b) of the Statute was amended by the Civil Service Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98 Stat. 47, 48 (1984) to provide that the 30-day period for filing exceptions to an arbitrator's award begins on the date the award is served on the filing party. (2) 49 Fed. Reg. 22623 (1984). The case is before the Authority on a motion for reconsideration filed by the Union on July 8, 1986, seeking reconsideration of the Authority's Order of June 30, 1986, dismissing the Union's exceptions (22 FLRA No. 33 (1986)). For the reasons set forth below, the Union's motion must be denied. The Union's exceptions to the arbitrator's award were dismissed on the basis that the exceptions were untimely. It was found that the arbitrator's award was served on the parties by mail on or about April 23, 1986. Therefore, under Section 7122(b) of the Statute, as amended, /1/ and section 2425.1 of the Authority's Rules and Regulations, as amended, /2/ and sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, which are also applicable to computation of time limit here involved, the exceptions had to be filed in the National Office of the Authority not later than the close of business on May 27, 1986. However, the exceptions were not filed at the National Office until June 6, 1986. In this regard, the record established that the Union mailed the exceptions to the Authority's Atlanta Regional Office at its former address on May 22, 1986. The Atlanta Regional Office received them on June 2, 1986, and exercised due diligence in forwarding the exceptions that same day. However, they were not received by the Authority's national office until June 6, 1986. Therefore, the exceptions were untimely filed. In its motion for reconsideration, the Union argues that the Arbitrator received a copy of the Union's exceptions prior to May 29, 1986, and that the Atlanta Regional Office should have also received the exceptions prior to May 29, 1986. The Union also enclosed a copy of a letter dated May 29, 1986, from the Arbitrator. In addition, the Union contends that it was unaware that an unfair labor practice and an exception to an arbitrator's award had to be filed at different addresses. Section 2429.17 of the Authority's Rules and Regulations, effective September 10, 1981, 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 10 days after service of the Authority's decision or order . . . The Union's arguments do not demonstrate the existence of extraordinary circumstances within the meaning of section 2429.17 of the Authority's Rules and Regulations. Under sections 2429.21 and 2429.24 of the Rules and Regulations, when a document is required to be filed with the Authority, the document must be received in the National Office of the Authority before the close of business on the last day of the prescribed time limit. See Bremerton Metal Trades Council, United Association, Local 631 and Puget Sound Naval Shipyard, 9 FLRA 1094 (1982); request for reconsideration denied June 24, 1982. While the Union did mail the exceptions on May 22, 1986, presumably in sufficient time to be timely received if properly addressed, exceptions to an arbitrator's award cannot be filed at a Regional Office. Since the inception of the Authority in 1979, applicable regulations have required that exceptions to arbitration awards filed with the Authority be filed at the National Office. See The Panama Canal Commission and Maritime Metal Trades Council, AFL-CIO, 21 FLRA No. 38, n.5 (1986); request for reconsideration denied April 16, 1986. Accordingly, since the Union has failed to establish the existence of extraordinary circumstances warranting reconsideration of the Authority's decision, the Union's motion is hereby denied. Issued, Washington, D.C., August 12, 1986. /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7122(b) of the Statute was amended by the Civil Service Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98 Stat. 47, 48 (1984)) to provide that the 30-day period for filing exceptions to an arbitrator's award begins on the date the award is served on the filing party. (2) 49 Fed. Reg. 22623 (1984).