27:0852(92)AR AFGE, LOCAL 476 VS HUD -- 1987 FLRAdec AR


[ v27 p852 ]
27:0852(92)AR
The decision of the Authority follows:


27 FLRA NO. 92

U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT

                   Agency

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 476

                   Union

Case No. O-AR-1259
(24 FLRA No. 44)

ORDER DENYING REQUEST FOR RECONSIDERATION

This case is before us on a request filed by the Union seeking reconsideration of the Authority's Order of December 11, 1986, dismissing the Union's exceptions to the award of Arbitrator Jerome H. Ross as untimely filed. 1 The Agency filed an opposition to the Union's request, and the Union filed a supplemental submission.

The Arbitrator's award was dated September 24, 1986, and, in the absence of evidence to the contrary, appeared to have been served on the Union by mail on the same date. Therefore, under section 7122(b) of the Federal Service Labor - Management Relations Statute (the Statute) and under sections 2425.1(b), 2429.21, 2429.22 of the Authority's then applicable Rules and Regulations, the Union's exceptions had to be received in the national office of the Authority no later than the close of business on October 28, 1986. However, the Union's exceptions were not received until October 29. 2 Therefore, the Union's exceptions were dismissed as untimely. 

In its request for reconsideration and supplemental submission, the Union asserts that the exceptions which were filed on October 29 should be considered timely because: (1) its representative was informed by an Authority official that the due date for the exceptions was October 29; (2) there is a "probability" that the Arbitrator's award was served after the date of the award; and (3) the exceptions received by the Authority from the National Labor Relations Board (NLRB) were mailed by the NLRB on October 28.

The Union contends that on October 28, it was advised by the NLRB that that the exceptions had been mailed incorrectly to that agency rather than to the Authority. The Union asserts that on that date, its representative telephoned the Authority's Director of Case Management, who informed the Union that the due date for the exceptions was October 29. Relying on that information, the Union filed its exceptions with the Authority on October 29.

Even assuming that the Authority's official miscalculated the due date for any timely exceptions to be filed in this case, and that the Union relied on such incorrect representation of the due date, the Authority is not empowered to take into account "equitable considerations" to waive or toll the time limit for filing exceptions to arbitration awards. The structure of the Statute and its legislative history disclose that Congress' intent regarding the arbitration process is to promote its primacy and finality by limited, expeditious review by the Authority. The Authority's adoption of reasonable procedural requirements for filing exceptions to arbitration awards, and in strictly and uniformly applying those time requirements so as to dismiss untimely exceptions effectuates the Congress' purposes concerning the arbitration process. 3 In this regard, we find that the 30-day filing  requirement for exceptions 4 is jurisdictional, and not in the nature of a "statute of limitations" or merely a "condition precedent" to Authority action. 5 Indeed, section 2429.23(d) of the Authority's Rules and Regulations requires that the time limit for filing exceptions to arbitration awards contained in section 7122(b) of the Statute may not be extended or waived. Further, even assuming that "equitable consideration" could be applied to the present case (see n.5), the facts and circumstances herein do not warrant such application. We note in this regard, for example, that all of the information necessary for the Union to satisfy timely filing requirements was readily available to the Union. Accordingly, without passing on the exact content of the telephone conversation alluded to by the Union, this contention does not provide a basis for granting reconsideration. 

The union asserts also that there is a "probability" that the award was served after it was dated. 6 In support of its assertion, the Union notes the Arbitrator's statement that he cannot "with certainty" state that the award was served on the date of the award and that it is not uncommon for him to retain an award for proofreading for "a day or two" after it is dated. Neither party supplied a copy of the postmarked envelopes used by the Arbitrator to mail the award. The Union notes, however, that the Agency acknowledges receiving the award on or about September 30. In the Union's view, this receipt date increases the probability that the award was served after it was dated.

In the absence of evidence to the contrary, the Authority presumes that an arbitration award is served on the date of the award. See, for example, Pine Bluff Arsenal, Pine Bluff, Arkansas and American Federation of Government Employees, Local 953, 24 FLRA No. 24 (1986). In this case, the Union argues only that there is a "probability" that the award was served after it was dated. The Union offers no evidence to support its assertions, however. The amount of time which elapsed between the date of the award and the date it was received by the Agency does not establish that the date of service is different from the date of the award. In our view, this Union argument does not provide a basis for reconsideration.

Finally, the Union asserts that the exceptions which were mailed by the NLRB to the Authority on October 28 were timely filed. This argument is without merit. Under the Authority's then applicable regulations, the date the exceptions were received in the national office of the Authority--not the date they were mailed--is dispositive. Effective December 31, 1986, section 2429.21 of our Regulations was amended to provide that the date of filing with the Authority is determined by the date of mailing. 51 Fed. Reg. 45,751 (1986). The amendment applies only to documents filed with the Authority on or after December 31, 1986. Therefore, this Union argument provides no basis for reconsideration.

In view of the foregoing, we conclude that the Union has failed to establish "extraordinary circumstances" within the meaning of section 2429.17 of our regulations. Accordingly, the Union's request for reconsideration of the Authority's December 11, 1986 Order is denied.

Issued, Washington, D.C., June 26, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 Section 2429.17 of the Authority's Rules and Regulations provides that a party that can establish "extraordinary circumstances" may petition for reconsideration of a final decision or order of the Authority.

Footnote 2 The Union mailed other copies of its exceptions to the National Office of the National Labor Relations Board, which forwarded them to the Authority where they were received on October 30. The Authority's Order of December 11, 1986, erroneously referred to October 30 as the filing date of the exceptions.

Footnote 3 In determining that the explicit congressional design was review of exceptions to the arbitration award by the Authority itself, without judicial review unless an unfair labor practice is necessarily implicated, the 9th Circuit in U.S. Marshals Service v. Federal Labor Relations Authority, 708 F.2d 1417, 1420 (1983) found that a contrary holding "would be to give too little scope and effect to the arbitration process and to the final review function of the Authority, procedures deemed important to the expeditious' review that Congress made a central part of the (Statute)."

Footnote 4 During the period relevant to this case, section 7122(b) of the Statute required that exceptions to arbitration awards be filed with the Authority within the 30-day period beginning on the date of service of the award. At that time, section 2425.1(b) in conjunction with section 2429.21 of the Authority's Rules and Regulations--as reasonable implementations of the Statutory provisions--required that in order to be timely filed, exceptions must be received by the Authority on or before the 30th day beginning on the date the award is served on the filing party.

Footnote 5 Whether a time limit contained in any act of Congress is jurisdictional and therefore not subject to "equitable considerations" to waive or toll the time limit is primarily a determination of the congressional policy underlying that portion of the act to which the time limit attaches. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 1132 (1982) (timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in Federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling); Dartt v. Shell Oil Co., 539 F.2d 1256, 1259-62 (10th Cir. 1976) aff'd per curiam by an equally divided court, 434 U.S. 99, 98 S.Ct. 600 (1977) (time limit of 180 days under 29 U.S.C. 626(d)(1) to file notice of intent to sue to avoid bar to bring a private action under the Age Discrimination in Employment Act of 1967 is not jurisdictional in the traditional sense that failure to comply is an absolute bar to bringing an action, but rather is more analogous to statutes of limitation and subject to equitable modifications). For example, the Authority in Department of the Air Force, He