32:0302(45)AR - - Labor, Mine Safety and Health Administration and AFGE, National Council of Field Labor Locals - - 1988 FLRAdec AR - - v32 p302
[ v32 p302 ]
The decision of the Authority follows:
32 FLRA No. 45
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
U.S DEPARTMENT OF LABOR, MINE
SAFETY AND HEALTH ADMINISTRATION
NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF
Case No. 0-AR-1502
On April 1, 1988, the Authority issued an Order to Show Cause why the Union's exceptions to the award of Arbitrator Michael E. Zobrak should not be dismissed as untimely filed. The Union timely filed its submission on April 19, 1988.
The Order to Show Cause noted that the Agency's opposition to the Union's exceptions was the Authority's first notice of the Union's exceptions, and that at the Authority's request, the Union had furnished to the Authority a copy of its exceptions dated January 7, 1988. The Union was ordered to show cause why its exceptions should not be dismissed as untimely on the basis of 5 C.F.R. § 2429.21(b) as construed by Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987).
Upon further consideration, I have determined that application of the rule in 5 C.F.R. § 2429.21(b) as construed by Veterans Administration is not appropriate where, as here, the Authority does not receive the submission, but there is sufficient circumstantial evidence consistent with a timely filing.
Under 5 C.F.R. § 2429.21(b), an item is filed with the Authority when it is placed in the mail, not when it is received. When submissions are received by the Authority, there are only two ways to determine the date of mailing:
(1) by the postmark on the mailing; and (2) in the absence of a postmark, by the date of receipt minus 5 days.(1)
In this case, the Authority has never received the Union's original filing of its exceptions. Therefore, it is appropriate to examine the record for evidence to establish when the exceptions were mailed: (1) the exceptions are dated January 7, 1988, and are addressed to the national office of the Authority in Washington, D.C.;(2) (2) the Agency in its opposition to exceptions states that it received the exceptions on January 11, 1988; and (3) the filing date of the Agency's opposition, February 8, 1988, is within the period of a timely opposition filed in response to timely filed exceptions. Accordingly, I find that the Union's exceptions were mailed to the Authority not earlier than January 7, 1988, and not later than January 11, 1988.
The time limit for filing an exception to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 U.S.C. § 7122(b), as amended,(3) and 5 C.F.R. § 2425.1, as amended.(4) The date of service is the day when the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d) (1987). The Arbitrator's award is dated December 16, 1987, and, in the absence of evidence to the contrary, it is concluded that the award was served on the parties by mail that same day. Whenever a party is served by mail, 5 days are added to the prescribed period for filing the exception. 5 C.F.R. § 2429.22 (1987). Therefore, in order to be timely filed, any exceptions to Arbitrator Zobrak'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 January 19, 1988, or if filed in person, received at the Authority's national office no later than the close of business that same date. 5 C.F.R. § 2429.21(b), as amended.(5)
Having found that the Union's exceptions were mailed to the Authority not earlier than January 7, 1988, and not later than January 11, 1988, and having determined that the due date for any timely exceptions was January 19, 1988, I conclude there is sufficient circumstantial evidence consistent with the Union's exceptions having been timely filed with the Authority.
Accordingly, the Authority's April 1, 1988 Order to Show Cause having been satisfied, this case will proceed to a decision on its merits.
For the Authority.
Issued, Washington, D.C.,
Jacqueline R. Bradley
(If blank, the decision does not have footnotes.)
1. Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987). See also United States Marine Corps, Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan, 29 FLRA 1068 (1987) at n.1: "The Respondent submitted a postmarked certified mail receipt which showed that its exceptions were filed timely in accordance with section 2429.21(b) of the Authority's Rules and Regulations." (Respondent had transmitted its exceptions using an "Official Business" envelope with no postmark. The exceptions were mailed on the due date. Because it took more than 5 days for the Authority to receive the exceptions, the postmarked, certified mail receipt was necessary to overcome the presumed mailing date, which would have made the exceptions untimely.)
2. While it is noted that the Authority as addressee on the Union's exceptions dated January 7, 1987, has the zip code missing from its address, the nature of the deficiency is not determinative because experience has shown that it is possible for mail addressed to the Authority without a zip code to be successfully delivered to the Authority. (Under 5 C.F.R. § 2429.24(a), "Place and method of filing . . . ," the Authority's complete address with zip code is shown.)
3. Section 7122(b) of 5 U.S.C. 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.
4. 49 Fed. Reg. 22623 (1984). The amendments to section 2425.1 of 5 C.F.R. are applicable to exceptions pending or filed with the Authority on or after March 2, 1984.
5. 51 Fed. Reg. 45751 (1986). The amendments to section 2429.21 of 5 C.F.R. are applicable to exceptions pending or filed with the Authority on or after December 31, 1986.