24:0091(11)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR
[ v24 p91 ]
The decision of the Authority follows:
24 FLRA No. 11 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. 0-AR-1262 ORDER DISMISSING EXCEPTIONS This case is before the Authority on exceptions to the bench rulings 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 September 11 and 12, 1986 at which the Agency declined to participate. The official transcript of the hearings was apparently served on the parties by mail on or about October 14, 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 October 10 and 14, 1986, respectively. However, the Agency's exceptions were not filed with the Authority until October 30, 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). Turning to the due process considerations raised by the Agency, such argument can not be sustained. The record clearly indicates that the Agency voluntarily chose not to participate at the hearings at which the Arbitrator's bench decisions were rendered. Thus, by choosing not to do so, the Agency acted at its own peril and, in these circumstances, the fact that the Agency was not served with the Arbitrator's bench decisions when they were rendered at ex parte hearings did not toll the time period for filing exceptions. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 24 FLRA No. 2 (1986). Accordingly, the Agency's exceptions filed on October 30, 1986, more than thirty days after the Arbitrator's bench decisions were rendered, were untimely filed and, therefore, they must be dismissed. For the Authority. Issued, Washington, D.C., November 19, 1986. /s/ 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).