33:0832(99)AR - - SBA and AFGE Local 2532 - - 1988 FLRAdec AR - - v33 p832
[ v33 p832 ]
The decision of the Authority follows:
33 FLRA No. 99
FEDERAL LABOR RELATIONS AUTHORITY
U.S. SMALL BUSINESS ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
On October 21, 1988, the Agency filed a motion for clarification of the award of Arbitrator Leon B. Applewhaite. The motion must be denied.
The Arbitrator's award is dated September 21, 1988, and was served on the Agency by mail that same day as evidenced by the postmarked envelope containing the award.
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 was served on the Agency by mail on September 21, 1988. 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 Applewhaite'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 October 26, 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)
The Agency did not file exceptions to the award within the time limit provided. On October 21, 1988, the Agency filed a motion for clarification of the award. The motion requests a ruling from the Authority whether the award is interlocutory or final and, therefore, whether the Agency's time for filing exceptions to the award had begun. The Authority will not rule on whether exceptions are interlocutory without exceptions having been filed with the Authority.(4) The motion also requests leave to file exceptions to the award if the Authority rules that the award is final and not interlocutory. The Agency's motion did not operate to suspend the time limit for filing exceptions in this case. The filing due date of October 26, 1988, for filing exceptions to Arbitrator Applewhaite's award may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).
Accordingly, the Agency's motion is denied in its entirety.
For the Authority.
Issued, Washington, D.C.,
Clyde B. Blandford, Jr.
Acting Executive Director
(If blank, the decision does not have footnotes.)
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.
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.
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.
4. The Authority "ordinarily will not consider interlocutory appeals." 5 C.F.R. § 2429.11. See e.g. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 33 FLRA No. 88 (1988).