23:0157(19)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR

[ v23 p157 ]
The decision of the Authority follows:

 23 FLRA No. 19
                                            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,
    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
                                       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
    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 rece