24:0091(11)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR

 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).