37:0877(72)AR - U.S. ARMY HEADQUARTERS, XVIII AIRBORNE CORPS FORT BRAGG, NORTH CAROLINA and AFGE LOCAL 1770 -- 1990 FLRAdec AR
[ v37 p877 ]
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 believed I was postmarking my submission a day early." The Union's assertion that it submitted its exceptions to the Post Office on July 31, 1990, does not constitute proof of service pursuant to section 2429.27(b). See American Federation of State, County and Municipal Employees, Local 2478 and U.S. Commission on Civil Rights, 20 FLRA 164 (1985). The Union further requests that the Authority consider its exceptions as timely filed since "the agency's representative, has no objection to the dates that I have supplied to you herein". Notwithstanding the Union's statement that the agency has no objections to the dates provided by the Union, the time limit for filing an exception to an Arbitrator's award may not be extended or waived by the Authority. 5 C.F.R. 2429.23(d). The Union has failed to provide evidence to support its assertions that the Arbitrator's award was served on June 27, 1990 and its exceptions filed on July 31, 1990. Absent evidence to the contrary, the Authority must presume that the Arbitrator's award was served on June 26, 1990 and the Union's exceptions postmarked on August 2, 1990. Accordingly, the Union's exceptions were not timely filed and are therefore dismissed. For the Authority. Alicia N. Columna Director, Case Control Office FOOTNOTES Footnote 1 The Union states that he normally does not keep envelopes, but does "make a notation on my time records". The Union provided a copy of the Arbitrator's supplemental award with a date received stamp of 7/03/90. It is unclear whether this date received stamp was the "notation on its time records" referred to by the Union in its "supporting affidavit". If this is the "notation", it is insufficient since it provides the date of receipt rather than the date of service. 5 C.F.R. 2425(b). No other documentation was provided by the Union. Footnote 2 The 30-day period for filing exceptions begins on the date the award is served not the day after the award is served, as suggested by the Union. 5 C.F.R. 2425(b).