24:0006(2)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR
[ v24 p6 ]
The decision of the Authority follows:
24 FLRA No. 2 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. 0-AR-1253 ORDER DISMISSING EXCEPTIONS This case is before the Authority on exceptions to the bench ruling(s) of Arbitrator Justin Smith filed by the Agency pursuant to section 7122(a) of the Federal Service Labor Management Relations Statute and section 2425.1 of the Authority's Rules and Regulations. For the reason stated below, it has been determined that the exceptions must be dismissed as untimely filed. This case involves a dispute submitted 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 various regions of the Agency. The exceptions in this case have been filed to bench decisions of the Arbitrator rendered at ex parte hearings held on August 6 and 7, 1986 at which the Agency declined to participate. The official transcript of the hearings was apparently served on the parties by mail on September 24, 1986. Under section 7122(b) of the Statute, as amended, /1/ and section 2425.1 of the Authority's Rules and Regulations, as amended, /2/ which amendments are applicable to exceptions pending or filed with the Authority on or after March 2, 1984, and under sections 2429.21 and 2429.22 of the Rules and Regulations, which are also applicable to computation of the time limit here involved, any exceptions to the Arbitrator's rulings in this case had to be filed, that is, received in the national office of the Authority not later than the close of business on September 4 and 5, 1986, respectively. However, the Agency's exceptions awere not filed with the Authority until October 23, 1986. The Agency asserts essentially that because the instant arbitration hearings were conducted ex parte, no representative of the Agency was present at the hearing to be served with notice of the Arbitrator's bench decisions in question. The Agency contends, therefore, that since its exceptions were filed within thirty days after it was served with the official transcript of the hearing, which is the date that it received notice of the Arbitrator's bench decisions, the exceptions were timely filed. It is well settled, particularly in cases involving other related bench rulings between these same parties, that the Arbitrator's bench rulings are final when rendered and ripe for filing exceptions with the Authority at that time. 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); U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 23 FLRA No. 19 (1986). Further, with respect to the due process considerations raised by the Agency, the Authority concludes that such argument must be rejected. The record clearly indicates that while the Agency did not participate at the instant hearings at which the Arbitrator's bench awards were made, it voluntarily chose not to do so and, thus, acted at its own peril. Consequently, in these circumstances, the fact that the Agency was not served with the Arbitrator's bench decisions when they were rendered at the hearings did not toll the related time periods for filing exceptions which began on August 6 and 7, 1986, and expired on September 4 and 5, 1986, respectively. Accordingly, as the Agency's exceptions were untimely filed, they are hereby dismissed. For the Authority. Issued, Washington, D.C., November 10, 1986. Harold D. Kessler Director of Case Management --------------- 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).