32:0423(64)AR - NATIONAL TREASURY EMPLOYEES UNION and IRS, SERVICE CENTER, ATLANTA BRANCH -- 1988 FLRAdec AR
[ v32 p423 ]
The decision of the Authority follows:
32 FLRA NO. 64 AKA: 0-AR-1522 32 FLRA 423 Date: 17 JUN 1988 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE, SERVICE CENTER, ATLANTA BRANCH Activity Case No. 0-AR-1522 ORDER DISMISSING EXCEPTIONS On March 17, 1988, the Internal Revenue Service, Southeast Region (the Agency) filed exceptions on behalf of the Activity with the Authority to the award of Arbitrator Anthony J. Sabella, pursuant to 5 U.S.C. 7122(a) and 5 C.F.R. 2425.1. The Agency's exceptions are untimely and, therefore, must be dismissed. The Arbitrator's award is dated February 10, 1988. The Agency's exceptions are dated March 17, 1988, and were filed with the Authority--delivered by hand--on that same date. 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, 1 and 5 C.F.R. 2425.1, as amended, 2 . 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). The Arbitrator's award and its cover letter are dated February 10, 1988, and 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. Therefore, in order to be timely filed, any exceptions to Arbitrator Sabella'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 March 15, 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. 3 However, the Agency's exceptions were hand-delivered on March 17, 1988, or 2 days late. The Agency asserts that its exceptions should be considered timely filed because the arbitrator mailed the Agency's copy of his award with an incorrect zip code, which apparently caused a delay in the Agency's-receipt of the award. It also argues that it was not served with the award within the 5 days for mailing which are added to the filing period for exceptions pursuant to 5 C.F.R. 2429.22. On that basis, it contends that the date of service of the award should be the date it received the award, or February 17, 1988, in order that it have 30 days to file exceptions to the award. In that regard, the Agency notes that Congress changed the language of 5 U.S.C. 7122(b) from "date of arbitrator's award" to "date of service" to ensure that the parties would have the full 30 days in which to file exceptions. The Agency's arguments are not persuasive. It is well established that the date of receipt of the award is not controlling in the determination of the timeliness of exceptions. U.S. Department of Health and Human Services Social Security Administration and National Federation or Federal Employees, Council of Consolidated Social Security Administration Locals, 15 FLRA 1055 (19 4). The date of service of the award, as noted earlier herein, is the date that the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. 2429.27(d). Thus, the time limit for filing exceptions in this case began to run on February lo, 1988--the date that the arbitrator mailed his award to the parties. The Agency's argument constitutes nothing more than disagreement with the Authority's interpretation of the Statute and its Regulations. The Agency's argument that its exceptions should be considered timely because of the delay in its receipt of the award caused by the arbitrator's error is also misplaced. The Authority rejected a similar argument in overseas Federation of Teachers, AFT, AFL - CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA No. 56 (1988), finding that the delay in the party's receipt of an arbitration award 11 days after it was mailed--caused by problems inherent in overseas mailing--did not warrant tolling the time period for filing exceptions. Since the party had an adequate opportunity to file exceptions, the Authority found no basis to apply equitable considerations to toll the time limit. In this case, the Agency received the award on February 17, 1988, 7 days after it was mailed, and it had until March 15, 1988, or 27 days, in which to file timely exceptions. The Agency had sufficient opportunity to file timely exceptions despite the amount of time expended for mailing the award due to the arbitrator's error. Accordingly, the Agency's exceptions are dismissed as untimely. For the Authority. Issued, Washington, D.C. June 17, 1988. Jacqueline R. Bradley Executive Director FOOTNOTES Footnote 1 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. Footnote 2 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. Footnote 3 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.