29:0680(58)AR - AFGE, LOCAL 1960 VS NAVY, NAVY DEVELOPMENT CENTER



[ v29 p680 ]
29:0680(58)AR
The decision of the Authority follows:


29 FLRA NO. 58


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1960

                   Union

            and

DEPARTMENT OF THE NAVY
DEVELOPMENT CENTER

                   Activity

Case No. 0-AR-1221
 (26 FLRA No. 31)

ORDER

I. Statement of the Case

This matter is before the Authority on a petition filed by attorneys for Mr. Hubert H. McDaniel, the grievant in Case No. 0-AR-1221, in effect seeking reconsideration of the Authority's decision in that case (American Federation of Government Employees, Local 1960 and Department of the Navy Development Center, 26 FLRA No. 31 (1987)). The petition requests that our decision be withdrawn because the Agency's exceptions were allegedly untimely filed and we therefore lacked jurisdiction over the exceptions. For the reasons that follow, we deny the petition.

II. Background

In our decision in 26 FLRA No. 31, we ruled on exceptions filed by the Department of the Navy (Agency) to an award of Arbitrator C. Bette Wimbish. We found that the award was deficient as alleged by the Agency and modified the award accordingly. Id.

By letters dated July 16 and August 4, 1987, attorneys for the grievant requested that the Authority withdraw its decision in 26 FLRA No. 31 on the grounds that the Agency's exceptions were not timely filed with the Authority and the Authority therefore did not have jurisdiction in the matter. This request was supplemented by letter with an attached memorandum of position dated September 18, 1987. 

The petition acknowledges that in this case the Authority applied its Regulations concerning the timeliness of exceptions to arbitration awards in a manner consistent with its established practice. However, the petition contends that section 2429.22 of our Regulations, which allows extension of the 30-day time limit for filing exceptions to an arbitration award by 5 days when the award is served on the parties by mail, is invalid because it is contrary to the legislative intent of the Statute and to the rules for construction of statutes. Further, the petition argues that even if section 2429.22 could properly be applied to the filing of exceptions to arbitration awards under section 7122 (b) of the Statute, the method used by the Authority to calculate the due date under that section is incorrect and that the regulation allows only the addition of 5 calendar days. Finally, the petition questions whether the award was placed in the mail on the date it was signed or on the following day.

The Agency filed an opposition to the grievant's request that the award be withdrawn and maintains that the Authority's decision in Association of Civilian Technicians and Pennsylvania National Guard, 27 FLRA No. 16 (1987) is dispositive of this matter.

III. Grievant's Standing to File a Petition

Section 2425.1(a) of the Authority's Rules and Regulations provides:

      Either party to an arbitration under the provisions of
      chapter 71 of title 5 of the United States Code may
      file an exception to an arbitrator's award rendered
      pursuant to the arbitration.

Section 2421.11 of the Regulations provides in pertinent part:

      "Party" means (a) any person . . . (4) who
      participated as a party . . . (ii) in a matter where
      the award of an arbitrator was issued. . . .

      Section 2429.17 of the Regulations provides:

      After a final decision or order of the Authority has
      been issued, a party to the

 

      proceeding before the Authority who can establish in
      its moving papers extraordinary circumstances for so
      doing, may move for reconsideration of such final
      decision or order. The motion shall be filed within
      ten (10) days after service of the Authority's
      decision or order. . . .

In this case the American Federation of Government Employees, Local 1960 and the Department of the Navy Development Center participated "as parties" in the proceeding before the Arbitrator and before the Authority. The grievant did not participate as a party in either proceeding. Therefore, the grievant was not entitled either to file exceptions to the Arbitrator's award under section 2425.1(a) or to file a request for reconsideration of the Authority's decision under section 2429.17 of the Regulations.

Further, the Authority's decision in 26 FLRA No. 31 was dated March 17, 1987. Under section 2429.17 of the Rules and Regulations any request for reconsideration was due within 10 days after service of the decision. Thus the petition filed on July 16, 1987 was untimely filed even assuming that the grievant had standing as a party to file a request for reconsideration.

Accordingly, the petition must be denied on the above grounds.

IV. There Was No Error In the Calculation of Timeliness of the Agency's Exceptions

Even though we find that the grievant has no standing to file a request for reconsideration of our decision in 26 FLRA No. 31 and that even if he had standing, his petition was untimely filed, we take this opportunity to address the assertion concerning the validity of our procedures for calculating timeliness of exceptions to arbitration awards under part 2425 and and sections 2429.21 and 2429.22 of our Regulations.

We agree with the Agency that our decision in Pennsylvania National Guard, 27 FLRA No. 16, is dispositive of the questions raised by the petition. In Pennsylvania National Guard, the Union argued that the Authority erred in adding 5 days for mailing to the 30-day time period allowed for filing exceptions to arbitration awards and that the addition of 5 days is contrary to the Statute and the underlying legislative intent. However, as we fully explained in that decision, 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. Accordingly, we find no basis for changing our position regarding section 2429.22 as set forth in Pennsylvania National Guard and we find that section 2429.22 was properly applied in the present case.

In the present case, the record indicates that the Arbitrator's award was dated July 31, 1986 and mailed to the parties on August 1, 1986, as evidenced by postmark of that date. Under section 7122(b) of the Statute, as amended, the 30-day period for filing exception