27:0096(16)AR - Ass'n of Civilian Technicians and Pennsylvania NG -- 1987 FLRAdec AR
[ v27 p96 ]
The decision of the Authority follows:
27 FLRA No. 16 ASSOCIATION OF CIVILIAN TECHNICIANS Union and PENNSYLVANIA NATIONAL GUARD Activity Case No. O-AR-1298 ORDER ON MOTIONS FOR RECONSIDERATION This matter is before the Authority on separate motions filed by the Activity and the Union seeking reconsideration of the Authority's Order of February 10, 1987, dismissing the Activity's exceptions to the award of Arbitrator Francis X. Quinn as untimely filed. In its motion for reconsideration, the Activity contends that because the date of service of the Arbitrator's award was December 26, 1986, and not December 23, 1986, which was the date of the award, its exceptions were timely filed. In support of this contention, the Activity has submitted the envelope in which the Arbitrator's award was mailed, postmarked December 26, 1986. In its motion, the Union supports the Authority's Order dismissing the Activity's exceptions as untimely filed. However, the Union argues that since the time period for filing exceptions to an arbitrator's award is set by statute, the Authority erred in calculating the time period for filing the exceptions by adding 5 days for mailing under section 2429.22 of the Authority's Rules and Regulations. The Union argues that the legislative history of section 7122(b) of the Federal Service Labor-Management Relations Statute (the Statute) does not support the Authority's calculation. Alternatively, the Union argues that there has been no competent evidence that would establish that the Arbitrator's award was served later than December 23, 1986. Under section 2429.17 of the Authority's Rules and Regulations, a party that can establish "extraordinary circumstances" may move for reconsideration of a final decision or order of the Authority. For the reasons set forth below, we find that the Activity has established the necessary "extraordinary circumstances" for reconsidering the dismissal order. The Union has not. Section 7122(b) of the Statute provides that "(i)f no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding." Section 2429.22 of the Authority's Rules and Regulations provides in pertinent part that "whenever a party has a right to do some act . . . within a prescribed period of time after service of a notice or paper upon such party, and the notice or paper is served by mail, five (5) days shall be added to the prescribed period." In computing the period for filing exceptions to an arbitrator's award, the Authority will add 5 days to the period if the award was served by mail on the filing party. The Union's argument that the Authority erred by adding 5 days to the period for filing exceptions under section 7122(b) of the Statute in its computation of the period cannot be sustained. When the Federal Service Labor-Management Relations Statute was enacted in 1978, section 7122(b) provided that an arbitrator's award was final and binding if no exception was filed "during the 30-day period beginning on the date of such award." The Authority's Rules and Regulations which implemented section 7122(b) of the Statute provided further that "the time limit for filing an exception to an arbitration award is thirty days beginning on and including the date of the award." 5 C.F.R. Section 2425.1(b) (1981) (emphasis added). Under section 2429.22, 5 days were not added to the period for filing exceptions if the award was served by mail. In 1983, Congress amended section 7122(b) of the Statute by section 4 of the Civil Service Miscellaneous Amendments Act of 1983 to provide that the time period for filing exceptions would start with the date the award was served on the filing party, instead of the date of the award. Pub. L. No. 98-224, Section 4, 98 Stat. 47, 48 (1984), codified in 5 U.S.C. Section 7122(b) (Supp. III 1985). The legislative history of this amendment to section 7122(b) of the Statute reveals Congressional intent to insure that the 30-day period for filing exceptions would not be lessened due to an arbitrator mailing an award after the date the award was issued. /1/ There is no indication in the legislative history of section 7122(b) of the Statute that Congress intended to preclude adding the additional 5 days provided by section 2429.22 of the regulations to the time period for filing exceptions when service is by mail. Section 2429.23(d) of the Authority's rules provides that the time limit established in 5 U.S.C. Section 7122(b) "may not be extended or waived under this section." Contrary to the Union's contention, the Authority has not done so in this instance. The Authority has construed the period so that when an arbitrator's award is served on a party by mail, the time related to mailing the award will not be counted against the time period for filing exceptions. /2/ This interpretation is consistent with the intent expressed by Congress in its amendment of section 7122(b) of the Statute (see n.1, above), that a full 30-day period be available to parties for filing exceptions to an arbitration award. Accordingly, the Union's motion for reconsideration is denied. With regard to the Activity's motion, while the Arbitrator's award was dated December 23, 1986, the envelope containing the award addressed to the Activity is postmarked December 26, clearly showing that it was not served by mail on the Activity until that latter date. Additionally, in calculating time periods, the expiration date of the initial period for filing exceptions provided by section 2425.1 of the rules must first be determined. If an award was served by mail, the additional 5 days authorized under section 2429.22 of the rules must then be added. /3/ The computation for determining the due date for the Activity's exceptions in the present case is as follows: Under section 7122(b) of the Statute, as amended, and section 2425.1 of the Authority's rules, as amended, the 30-day period for filing exceptions to the Arbitrator's award expired on January 24, 1987. Under section 2429.21 of the rules, whenever any time period ends on a Saturday, Sunday or legal holiday, the time limit "shall run until the end" of the next work day. In this case, since January 24, 1987 was a Saturday, the time period ran to the close of business on Monday, January 26, 1987. Since the award was served by mail, 5 additional days must be added to the due date as provided by section 2429.22 of the rules. Therefore, by operation of section 2429.22, the due date was January 31, 1987. Again, as January 31 was a Saturday, section 2429.21 extended the due date for filing exceptions to the end of the next work day, Monday, February 2, 1987. Therefore, any exceptions to the Arbitrator's award had to be postmarked no later than February 2, 1987. Thus, the Activity's exceptions were timely filed on January 28, 1987. Accordingly, the Authority's Order of February 10, 1987, dismissing the Activity's exceptions as untimely filed, is hereby rescinded and the case is reopened for further processing. Consistent with section 2425.1 of the Authority's Rules and Regulations, the Union shall have 30 days from the date of service of this Order to file an opposition to the exceptions with the Authority. The Union's opposition must be served on the Activity and a statement of service must be included with the Union's submission to the Authority. Issued, Washington, D.C., May 22, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Congrresswoman Patricia Schroeder stated regarding this change that "Since arbitrators are not infallible in promptly mailing their orders, the 30-day period may be truncated by the negligent action of an individual who is not even a party to the proceedings." See 129 Cong. Rec. H 10019 (daily ed. Nov. 16, 1983) (remarks of Rep. Schroeder). (2) Under section 2424.1 and 2429.22 of the Authority's rules, the Authority has construed the statutory 15-day time period for filing a negotiability appeal under section 7117(c)(2) of the Statute so that it starts to run 15 days after the date of service of the Agency's allegation of nonnegotiability, with 5 days added to the time period if the allegation of nonnegotiability is served by mail on the union. Further, like the time period for filing exceptions to an arbitrator's award under section 7122(b) of the Statute, the period for filing a negotiability appeal under section 7117(c)(2) of the Statute may not be extended or waived pursuant to sectionn 2429.23(d) of the Authority's rules. (3) United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York and American Federation of Government Employees, AFL-CIO, Local 3148, 25 FLRA No. 7 (1986).