39:0629(51)AR - - Air Force, Albrook AFB, Panama and National Maritime Union - - 1991 FLRAdec AR - - v39 p629
[ v39 p629 ]
The decision of the Authority follows:
39 FLRA No. 51
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
ALBROOK AIR FORCE BASE
NATIONAL MARITIME UNION
ORDER DENYING MOTION FOR RECONSIDERATION
February 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Union's motion for reconsideration of the Authority's order dismissing its exceptions. Because the Union fails to establish extraordinary circumstances that would warrant reconsideration of the order, we will deny the motion.
II. The Order Dismissing the Union's Exceptions
On November 5, 1990, the Union filed exceptions, dated October 30, 1990, to the arbitration award of Arbitrator C. Allen Foster. On December 6, 1990, the Authority issued an order to the Union to show cause why its exceptions should not be dismissed as untimely filed. The Authority explained that the Union stated that the award was issued on September 27, 1990, and that, presuming that the award was deposited in the U.S. mail on that date, exceptions to the award had to be either postmarked or received in person at the Authority no later than October 31, 1990, in order to have been considered timely. Because the Union's exceptions were filed (postmarked) on November 5, 1990, the Authority stated that the exceptions appeared to be untimely and ordered the Union to show cause why its exceptions should not be dismissed. The Authority also noted that the Union's exceptions were deficient under the Authority's Rules because the Arbitrator's address, copies of the Arbitrator's award, and a statement of service were not included as part of the exceptions.
Accordingly, the Authority ordered that by December 19, 1990, the Union must file its response to the order to show cause and must cure the deficiencies in its exceptions. The Authority stated that failure to comply with the order within the specified time limit would result in dismissal of the Union's exceptions.
On December 28, 1990, the Authority issued an order dismissing the Union's exceptions because the Union had failed to respond to the Authority's order to show cause.
III. Positions of the Parties
A. The Union
In its motion for reconsideration, the Union relies on alleged delays in mail to Panama and claims to have been "a victim of this system." Motion at 1. The Union claims that although the Arbitrator issued the award on September 27, 1990, the Union did not receive the award until October 8, 1990. The Union maintains that the 30-day period for filing exceptions should not have commenced until it received the award in order that it would have a full 30 days in which to file exceptions. Consequently, the Union argues that its exceptions filed on November 5 should not be considered to have been untimely filed.
To justify its failure to timely respond to the Authority's order to show cause, the Union has submitted a letter from the "Chief of the Panama University Post Office" which indicates that the Authority's order to show cause addressed to the Union's representative was received on December 18, 1990, and was delivered to the grievant, rather than the Union representative, on December 28, 1990. As part of its motion for reconsideration, the Union has also cured the deficiencies listed in the Authority's order to show cause.
B. The Agency
Although the Agency did not respond to the Union's motion, the Agency filed a submission in response to the Authority's order to show cause. In this submission, the Agency notes that the award related to a removal action covered under 5 U.S.C. chapter 75, subchapter II and that, consequently, the Authority has no jurisdiction to resolve the Union's exceptions.
IV. Analysis and Conclusions
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. We conclude that the Union has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of the Authority's order dismissing the Union's exceptions.
We emphasize that although the order dismissing the Union's exceptions was for failing to timely respond to the Authority's order to show cause, the primary issue of the order to show cause was the apparent untimeliness of the Union's exceptions. In its motion for reconsideration, the Union's response to the timeliness of its exceptions is to complain about the delay involved in mail to Panama and to note that, as a result, it was deprived of 7 days that it otherwise would have had to file its exceptions.
In Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 366 (1988) (DODDS), the Authority held that delay involved in overseas mailing, in and of itself, will not establish "extraordinary circumstances" within the meaning of the Authority's Rules to warrant reconsideration of an Authority order dismissing exceptions to an arbitration award as untimely filed. In DODDS, just as in this case, the union, as a result of a delay in overseas mailing, was deprived of 7 days that it otherwise would have had to file its exceptions. The Authority determined that despite the time involved in overseas mailing, the union had a sufficient opportunity to file timely exceptions and filed untimely exceptions because of its own internal actions after it received the award. We reach the same determination in this case, noting in particular that the exceptions, were dated a day before the expiration of the filing period, and yet, inexplicably, the Union waited another 6 days to mail them. Accordingly, we conclude that the Union fails to establish extraordinary circumstances warranting reconsideration.
In addition, now that the Union has provided a copy of the Arbitrator's award, we agree with the Agency that, in any event, the exceptions would have been dismissed for lack of subject matter jurisdiction. Under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), we have no jurisdiction to review arbitration awards relating to a matter described in section 7121(f) of the Statute. The matters described in section 7121(f) include adverse actions covered under 5 U.S.C. chapter 75, subchapter II. Review of arbitration awards relating to such matters, like review of the decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. º 7703.
Review of the award in this case indicates that the award relates to the removal of the grievant, which constitutes an adverse action covered under 5 U.S.C. chapter 75, subchapter II. Because the award relates to a matter described in section 7121(f), exceptions to the award may not be filed with the Authority under the Statute. Consequently, if the Union had provided a copy of the Arbitrator's award with its exceptions, a separate and independent