39:0692(56)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and NAGE Local R4-19 - - 1991 FLRAdec AR - - v39 p692



[ v39 p692 ]
39:0692(56)AR
The decision of the Authority follows:


39 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-19

(Union)

0-AR-1982

DECISION

February 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the amended award of Arbitrator Bruce R. Boals filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.

On March 31, 1990, the Arbitrator issued his original award sustaining the grievance over a 14-day suspension and awarding backpay to the grievant only if the grievant met certain conditions. The Agency filed exceptions to that award with the Authority. The Authority set aside the Arbitrator's award in U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 36 FLRA 304 (1990) (Norfolk Naval Shipyard).

After the Authority set aside the award, the Union unilaterally requested the Arbitrator to "issue a new decision" in Norfolk Naval Shipyard. Union's Letter of July 16, 1990, to the Arbitrator, attached to Agency's Exception ("Union's Letter"). On July 21, 1990, the Arbitrator issued an amended award that reduced the grievant's suspension to a written warning and awarded backpay.

For the reasons stated below, we find that the Arbitrator exceeded his authority because he had no jurisdiction to amend the award. Therefore, the amended award must be set aside.

II. Preliminary Matter

The Union asserts that the Agency's exception should be dismissed because it was not timely filed. We find that the exception was timely filed. Exceptions to an arbitration award must be filed within 30 days of the date of service of the award. 5 C.F.R. º 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. º 2429.27(d). There is no dispute that the award was served by mail on the parties on July 21, 1990. Accordingly, under sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, 5 days are added to the 30-day time period for filing exceptions. Further, the last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or a Federal legal holiday. 5 C.F.R. º 2429.21. To be timely, therefore, exceptions had to be either postmarked by the U.S. Postal Service or received at the Authority no later than August 27, 1990. The Agency's exceptions were received by the Authority on August 23, 1990, and as such, are timely.

III. Background and Arbitrator's Amended Award

The grievant, a shipyard police officer, was suspended for 14 days for accidentally discharging his revolver while attempting to apprehend robbe