33:0885(127)AR - - INS and AFGE Local 1917 - - 1989 FLRAdec AR - - v33 p885
[ v33 p885 ]
The decision of the Authority follows:
33 FLRA No. 127
FEDERAL LABOR RELATIONS AUTHORITY
U.S. IMMIGRATION AND NATURALIZATION SERVICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(33 FLRA 843)
ORDER GRANTING MOTION FOR RECONSIDERATION
August 3, 1989
I. Statement of the Case
The American Federation of Government Employees, Local 1917 (the Union) has filed a motion for reconsideration of an order dismissing the Union's exceptions to the award of Arbitrator John P. Finan as untimely filed. U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 33 FLRA 843 (1988) (AFGE, Local 1917). The U.S. Immigration and Naturalization Service (the Agency) filed an opposition to the Union's motion.
For the reasons stated below, the Union's motion for reconsideration is granted.
The Arbitrator's award was dated October 25, 1988, and deposited in the United Kingdom (UK) mail system. The Union received the award on or about November 8, 1988. The Union filed exceptions to the Arbitrator's award. The exceptions were postmarked December 3, 1988.
By an order dated December 16, 1988, the Union's exceptions were dismissed as untimely filed. AFGE, Local 1917, 33 FLRA 843. The Order stated:
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, and 5 C.F.R. § 2425.1, as amended. The date of service is the day 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 is dated October 25, 1988, and it is presumed to have been served on the parties by mail on that same date. 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 Finan'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 November 28, 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. However, the Union's exceptions were filed December 3, 1988.
Accordingly, the Union's exceptions are dismissed.
33 FLRA 843-44 (footnotes omitted).
III. Positions of the Parties on Reconsideration
A. Union's Motion
The Union states that the award was airmailed by the Arbitrator from the UK, and that it received the award on or about November 8, 1988. Motion at 2. The Union asserts that according to the Authority's regulations, "[t]he Authority tolls time from when mail is deposited in the U.S. Mail. However, the award was entered into the UK mail." Motion at 1 (emphasis in original). The Union argues that the Authority should proceed on the merits of the case because "the US and the UK mail services are separate entities." Id.
B. Agency's Opposition
The Agency notes the Authority's decision in Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 366 (1988) (DoDDS). In that case, the Authority denied a union's request for reconsideration of an order dismissing as untimely its exceptions to an arbitrator's award. The award had been mailed from the United States to Italy and received by the union 11 days after the award was mailed.
The Agency argues that, as was the case in DoDDS, the Union's motion for reconsideration in this case is based on problems with overseas mail. Opposition at 2. The Agency asserts that the Authority therefore should (1) find as it did in DoDDS that "the problems with overseas mailing did not create 'extraordinary circumstances' as would warrant reopening" and (2) "'conclude that the Union filed its exceptions late because of its own internal actions after it received the award[.]'" Id. at 2, quoting DoDDs at 367-68.
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a final decision or order of the Authority. The Union has established the necessary "extraordinary circumstances" to warrant reconsideration of the Order in this case.
Section 7122(b) of the Federal Service Labor-Management Relations Statute provides that "[i]f no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding." Section 2429.27(d) of the Authority's Rules and Regulations provides that "[t]he date of service or the date served shall be the day when the matter is deposited in the U.S. mail or is delivered in person."
The Authority has established that delay involved in overseas mailing, in and of itself, will not establish "extraordinary circumstances" within the meaning of the Authority's Rules and Regulations to warrant reconsideration of an Authority order. See, for example, DoDDS at 367. However, as the Union correctly points out in its motion, "[t]he Authority tolls time from when mail is deposited in the U.S. mail." Motion at 1 (emphasis deleted). Further, the Agency notes that "[t]he only factual difference between the instant case and DoDDS is that in the instant case the award was mailed from a foreign country, whereas in DoDDS, the award was mailed to a foreign country." Opposition at 2 n.1 (emphasis in original).
This distinction is significant. Because the Authority's Rules and Regulations expressly state that service is determined by the day when the matter is deposited in the U.S. mail, the day that the Arbitrator deposited his award in the UK mail cannot, under the Authority's Rules and Regulations, be considered the date of service on a party. In order to determine the date of service of the award in a manner consistent with the Authority's Regulations, the date of service will be considered the date on which the award entered the U.S. mail system.
In the absence of any evidence to the contrary, it is presumed that the Arbitrator's award entered the U.S. mail system 5 days prior to the Union's receipt of the Arbitrator's award. See section 2429.21 of the Authority's Regulations (if no postmark date is evident on a mailing, it shall be presumed to have been mailed 5 days prior to receipt). The Union stated that it received the Arbitrator's award "on or about November 8, ." Motion at 1. This statement is not controverted by the Agency. Therefore, it will be presumed that the award was deposited in the U.S. mail on November 3, 1988. Since the award was served by mail, 5 additional days must be added to the due date as prescribed by section 2429.22 of the Authority's Rules and Regulations. Therefore, under these computations, to be timely the Union's exceptions must have been postmarked no later than December 8, 1988. The Union's exceptions were filed on December 3, 1988, and are, therefore, timely.
For the reasons set fo