29:0230(21) AFT VS DOD, DODDS, MEDITERRANEAN REGION
[ v29 p230 ]
The decision of the Authority follows:
29 FLRA NO. 21 OVERSEAS FEDERATION OF TEACHERS, AFT, AFL-CIO Union and DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, MEDITERRANEAN REGION Activity Case No. 0-AR-1429
This case is before the Authority on exceptions to the award of Arbitrator Jerome H. Ross filed by the Union 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.
The Arbitrator's award is dated July 30, 1987, and, in the absence of evidence to the contrary, appears to have been served on the parties by mail on the same day.
Under section 7122(b) of the Statute, as amended, 1 and section 2425.1 of the Authority's Rules and Regulations, as amended, 2 section 2429.21 of the rules, as amended, 3 and section 2429.22 Of the rules, any exceptions to the Arbitrator's award had to be either mailed to the national office of the Authority in Washington, D.C. and postmarked by the U.S. Postal Service no later than close of business on September 2, 1987 or, if filed in person, received at the Authority's national office no later than that same date if the exceptions are to be timely filed. The instant exceptions were postmarked September 9, 1987 and, therefore, filed at the Authority's national office on that same date.
In this case, the Union representative has submitted an affidavit along with the exceptions attesting that the Arbitrator's award was received in the Union's office on August 10, 1987, which reflects a misapprehension of the significance of the date of receipt of an award in timeliness determinations. It is well established that the date of receipt of an award is not controlling in the determination of the timeliness of exceptions. See, for example, U.S. Department of Health and Human Services, Social Security Administration and National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals, reconsideration denied, 15 FLRA 1055 (1984). Further, it should be noted that section 2429.27(d) of the Authority's Rules and Regulations expressly provides that "(t)he date of service or date served shall be the day when the matter served is deposited in the U.S. mail or is delivered in person." Thus, the time limit for filing exceptions to the Arbitrator's award in this case began on the date the arbitrator mailed his award to the parties.
Accordingly, as the Union's exceptions were untimely filed, they are hereby dismissed.
For the Authority.
Issued, Washington, D.C.,September 29, 1987.
Harold D. Kessler Director of Case Management
Footnote 1 Section 7122(b) of the Statute was amended by the Civil Service Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, 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.
Footnote 2 49 Fed. Reg. 22623 (1984). The amendments to section 2425.1 of the Authority's Rules and Regulations are applicable to exceptions pending or filed with the Authority on or after March 2, 1984.
Footnote 3 51 Fed. Reg. 45751 (1986). The amendments to section 2429.21 of the Authority's Rules and Regulations are applicable to exceptions pending or filed with the Authority on or after December 31, 1986.