34:0799(135)AR - - AFGE Local 1960 and Naval Education and Training Program, Development Center, Pensacola, FL - - 1990 FLRAdec AR - - v34 p799



[ v34 p799 ]
34:0799(135)AR
The decision of the Authority follows:


34 FLRA No. 135

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1960

and

NAVAL EDUCATION AND TRAINING PROGRAM

DEVELOPMENT CENTER

PENSACOLA, FLORIDA

0-AR-1699

ORDER DISMISSING EXCEPTIONS AND

DENYING APPLICATION FOR ATTORNEY FEES

February 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Mollie H. Bowers. On January 26, 1989, the Arbitrator determined that the grievant was improperly denied "prior consideration" for placement from 1981 to 1986. However, the Arbitrator denied the request for retroactive promotion, backpay, and attorney fees. Subsequently, on March 13, 1989, the Arbitrator issued an "Errata Sheet" in which she reiterated her denial of attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, but based on a different rationale.

The American Federation of Government Employees Local 1960, AFL-CIO (the Union) filed an exception to the January 26 award. Subsequently, the Union filed an exception to what the Union characterized as the Arbitrator's "March 13, 1989 final opinion." Both exceptions were filed under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Department of the Navy (the Agency), on behalf of the Naval Education and Training Program Development Center, Pensacola, Florida (the Activity), filed an opposition to the Union's exception to the January 26 award.

In addition to filing exceptions, the Union submitted to the Authority an application for attorney fees and expenses under the EAJA. The Agency filed an opposition to the application.

For the reasons stated below, we conclude that: (1) the Union's exceptions were untimely filed; and (2) no basis is provided for the Authority to award the Union attorney fees and expenses under the EAJA. Accordingly, we will dismiss the Union's exceptions and deny the Union's application for attorney fees and expenses.

II. Background and Arbitrator's Award

The grievant was denied retroactive "prior" consideration for placement. The Union filed a grievance over the denial, and the grievance was submitted to arbitration.

In an award dated January 26, 1989, the Arbitrator determined that the Activity improperly denied the grievant prior consideration for placement from 1981 to 1986. However, she denied the request for retroactive promotion, backpay, and attorney fees. The Arbitrator based her denial of the Union's request for attorney fees on various grounds. In denying the Union's request for attorney fees under the EAJA, the Arbitrator stated that there was no basis for an award of attorney fees because the EAJA had been repealed.

Subsequently, on March 13, 1989, the Arbitrator issued to the parties an "Errata Sheet" in which she revised the basis for denying attorney fees under the EAJA. In the "Errata Sheet," the Arbitrator stated that "special circumstances" existed that justified the denial of attorney fees under the EAJA.

III. Positions of the Parties

A. The Union

On March 7, 1989, the Union filed an exception to the Arbitrator's award, contending that the Arbitrator's denial of attorney fees under the EAJA is contrary to law. The Union argues that the Arbitrator erred in stating that the EAJA is not a basis for an award of attorney fees because the EAJA had been repealed.

On April 11, 1989, the Union filed an exception to the Arbitrator's March 13, 1989 "Errata Sheet," which the Union characterizes as the Arbitrator's "final opinion." The Union argues that the award "did not become final" for purposes of filing an exception until the Arbitrator issued the Errata Sheet. Union's Exception to Arbitrator's Final Opinion at 1. The Union maintains that, consequently, its initial exception was premature and is now moot. The Union contends that the denial of attorney fees in the Arbitrator's "final opinion" is contrary to the EAJA. Id. at 2.

The Union also applied to the Authority for an award of attorney fees and expenses under the EAJA, maintaining that it prevailed against the Activity in the hearing before the Arbitrator and that the Activity's position was not substantially justified.

B. The Agency

The Agency contends that the Union's exception to the January 26 award was untimely filed and should be dismissed. If the exception is not dismissed, the Agency contends that the exception should be denied because the Union fails to establish that the award is contrary to law.

The Agency also contends that there is no basis for the Authority to award the Union attorney fees and expenses under the EAJA. The Agency maintains that the proceedings before the Arbitrator do not qualify as an "adversary adjudication" under the EAJA, 5 U.S.C. § 504(a)(1).

IV. Discussion

A. The Union's March 7 Exception Was Untimely Filed

The Arbitrator's award is dated January 26, 1989. The Union's exception to this award is postmarked March 7, 1989. In its exception, the Union stated that it was served with a copy of the Arbitrator's award on February 2, 1989.

On March 17, 1989, the Authority issued to the Union an order to show cause why its exception should not be dismissed as untimely filed. The order noted that the award is dated January 26, 1989. The order stated that, presuming the award was served on the Union on the date of the award by being deposited in the U.S. mail, the Union's exception had to be postmarked by the U.S. Postal Service no later than March 1, 1989. The order further noted that, although the Union stated in its exception that the award was served on February 2, the Union failed to provide any corroborating evidence to establish the February 2, 1989 date of service. Therefore, the Union was ordered to provide proof of service of the Arbitrator's award.

On March 23, 1989, the Union responded to the Authority order. The response constituted an affidavit of the Union's attorney in which he states that "the date I received the arbitrator's decision was February 2, 1989." The response does not address the date of service of the award on the Union except to state that the envelope containing the Arbitrator's award had been discarded.

We conclude that the Union's exception filed on March 7 was untimely. Because the Union has provided no evidence to the contrary, we find that the award was served on the Union on January 26, 1989, the date of the award. The Union's affidavit stating that the award was received on February 2 is misplaced. The date of receipt of an award is not controlling in determining the timeliness of exceptions. For example, Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 29 FLRA 230 (1987). Therefore, in order to have been timely filed by deposit in the U.S. mail, the Union's exception had to be postmarked no later than March 1, 1989. Accordingly, the Union's exception postmarked March 7 was untimely filed, and we will dismiss the exception.

B. The Union's April 11 Exception Was Untimely Filed

We conclude that the Arbitrator's January 26 award was final and that the March 13 Errata Sheet did not operate to commence a new period for filing exceptions under section 7122(a) of the Statute. Accordingly, we find that the Union's April 11 exception was untimely filed.

We reject the Union's contention that the award was not final for purposes of filing an exception until March 13 when the Arbitrator issued the Errata Sheet. We find that the January 26 award was final because the award constituted a complete and unambiguous determination of all the issues submitted to arbitration, including the Union's request for attorney fees under the EAJA. Consequently, as indicated above, in order to have been timely filed by deposit in the U.S. mail, any exception to the Arbitrator's denial of attorney fees under the EAJA had to be postmarked no later than March 1, 1989.

In our view, the March 13 Errata Sheet did not operate to extend this time limit for filing exceptions to the January 26 award. The March 13 Errata Sheet did not modify the January 26 denial of attorney fees under the EAJA. To the contrary, the Arbitrator merely reiterated her denial of attorney fees under the EAJA, albeit based upon a different rationale. Therefore, the Union is in effect seeking Authority review of the January 26 award. In this regard, we note that both of the Union's exceptions are predicated on the identical ground that the award of attorney fees under the EAJA was warranted and that the Arbitrator's denial of attorney fees under the EAJA is contrary to law. Accordingly, the exception filed on April 11 was untimely filed, and we will dismiss the exception. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 23 FLRA 157 (1986) (the agency's exceptions to the arbitrator's January 1986 letter were dismissed because the arbitrator merely confirmed that his May 1985 decisions were final; the agency was in effect seeking review of the 1985 awards and its exceptions filed in 1986 were untimely); United States Customs Service, Region I, Boston, Massachusetts and National Treasury Employees Union, 15 FLRA 816 (1984) (the activity's exceptions to the arbitrator's January 1983 award were dismissed as untimely filed; the activity's exceptions to the arbitrator's July 1983 response to the activity's request for clarification reiterating his January award were also dismissed as untimely filed because the arbitrator did not modify his award and the activity's exceptions were substantially identical to its untimely exceptions to the January award). Of course, if the Union's initial exception had been timely filed, we would have permitted the Union to supplement its exception to address the Arbitrator's "Errata Sheet."

C. No Basis Is Provided For Awarding Attorney Fees Under the EAJA

We