32:0423(64)AR - NATIONAL TREASURY EMPLOYEES UNION and IRS, SERVICE CENTER, ATLANTA BRANCH -- 1988 FLRAdec AR


[ v32 p423 ]
32:0423(64)AR
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 a