37:0877(72)AR - U.S. ARMY HEADQUARTERS, XVIII AIRBORNE CORPS FORT BRAGG, NORTH CAROLINA and AFGE LOCAL 1770 -- 1990 FLRAdec AR


[ v37 p877 ]
37:0877(72)AR
The decision of the Authority follows:


 37 FLRA NO. 72
 37 FLRA 877

04 OCT 1990


                          U.S. DEPARTMENT OF THE ARMY
                       HEADQUARTERS, XVIII AIRBORNE CORPS
                          FORT BRAGG, NORTH CAROLINA
                                   (Agency)

                                      and

                  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                                  LOCAL 1770
                                    (Union)

                                   0-AR-1969

ORDER DISMISSING EXCEPTIONS

     October 4, 1990

     On August 20, 1990, the Authority issued an Order directing
the Agency to show cause why its exceptions to the award of
Arbitrator James P. Whyte in the above-captioned case should not
be dismissed as untimely. The Union filed a timely response to
the Authority's Order. 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 is the date
the arbitration award 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. 2429.22. The time
limit may not be extended or waived by the Authority. 5 C.F.R.
2429.23(d). All documents filed with the Authority must be filed
in the Authority's Docket Room, 500 C Street, SW., Washington,
D.C. 20424. 5 C.F.R. 2429.24(a). 

     The Arbitrator's supplemental award is dated June 26, 1990,
absent evidence to the contrary, the date of the arbitration
award is presumed to be the date of service of the award.
Therefore, an exception to the award had to be either postmarked
by the U.S. Postal Service or received in person at the
Authority's Docket Room no later than July 30,  1990, in order to
be considered timely filed. 5 C.F.R. 2425.1(b), 2429.21(b) and
2429.22.

     In its response to the Authority's Order to Show Cause, the
Union states that he "believe(s) that the envelope I received the
Award in was postmarked on June 27, 1990." The Union, however,
does not provide any evidence to support its assertion. 1

     Even assuming that the award was postmarked on June 27,
1990, the 30-day period for filing would have ended on Thursday,
July 26, 1990. 2 Since the award was served by mail, 5 additional
days are added to the due date as provided by section 2429.22.
Therefore, an exception to the award had to be either postmarked
by the U.S. Postal Service or received in person at the
Authority's Docket Room no later than July 31, 1990, in order to
be considered timely filed.

     Although, the Union's exceptions were served by certified
mail to the Authority, no postmark date is evident on the
envelope. The exceptions were received by the Authority on August
7, 1990. Because there is no postmark date on the envelope
containing the Union's exceptions, it is presumed that the
exceptions were mailed August 2, 1990--5 days prior to
receipt by the Authority. 5 C.F.R. 2429.21(b). See Veterans
Administration, Veterans Administration Medical Center, Muskogee,
Oklahoma, 29 FLRA  51 (1987) and U.S. Department of the Navy,
Naval Air Station, Corpus Christi, Texas and National Federation
of Federal Employees, Local 797, 35 FLRA  1162 (1990).

     Section 2429.27(b) of the Authority's Regulations provides
that a return post office receipt or other written receipt
executed by the party or person served shall be proof of service.
(Emphasis added) The Union acknowledges that a post office
receipt could have be obtained but states that he did not "get
someone to stamp my receipt because I bel