35:0920(95)AR - - Labor, Washington, DC and AFGE Local 12 - - 1990 FLRAdec AR - - v35 p920
[ v35 p920 ]
The decision of the Authority follows:
35 FLRA NO. 95
U.S. DEPARTMENT OF LABOR
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING EXCEPTIONS
April 30, 1990
The Union has filed exceptions to the award of Arbitrator Roger
Kaplan in the above-captioned case. On April 5, 1990, the
Authority issued an order directing the Union to Show Cause why
its exceptions should not be dismissed as untimely filed. The
Union filed a timely response to the Authority's Order. The
Agency filed an opposition to the Union's response. For the
reasons set out below, the Union's exceptions are untimely and
must be dismissed.
The time limit for filing exceptions to an arbitration award
is 30 days beginning on the date the award is served on the
filing party. 5 C.F.R. 2425.1(b). The date of service of the
award 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). Absent
evidence to the contrary, the date of the arbitration award is
presumed to be the date of service of the award. See Oklahoma
City Air Logistics Center, Tinker Air Force Base, Oklahoma and
American Federation of Government Employees, Local No. 916, 32
FLRA 165, 167 (1988). If the award is served by mail, 5 days are
added to the period for filing exceptions to the award. 5 C.F.R.
The Arbitrator's award is dated February 14, 1990. Presuming
that the award was deposited in the U.S. mail on that date, an
exception to the award had to be either postmarked by the U.S.
Postal Service or received in person at the Authority no later
than March 20, 1990, in order to be considered timely. 5 C.F.R.
2425.1(b), 2429.21(b) and 2429.22. The Union's exceptions were
filed (postmarked) on March 22, 1990.
In its response to the Authority's Order, the Union contends
that the Arbitrator's award was received at the Union office on
February 20, 1990 as evidenced by the Union's mail log. The Union
did not provide any other documentation to establish date of
service. The union argues, however, that the Arbitrator's award
could not have been served on February 14, 1990 since it was not
received until February 20, 1990 and both parties are located in
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, Federal
Employees, Council of Consolidated Social Security Administration
Locals 15 FLRA 1055 (1984). Instead, the date of service of the
award -- the date that the matter served is deposited in the U.S.
mall or is delivered in person -- controls. 5 C.F.R. 2429.27(d).
The Union acknowledges that it did not retain the envelope in
which the Arbitrator's award was mailed.
In these circumstances, noting particularly that the Union's
assertion that "(i)t does not seem likely" that the award was
served on February 14, 1990 is