39:1109(94)AR - U.S. DEPARTMENT OF THE NAVY NAVY RESALE ACTIVITY, GUAM and AFGE LOCAL 1689 -- 1991 FLRAdec AR
[ v39 p1109 ]
The decision of the Authority follows:
39 FLRA NO. 94 39 FLRA 1109 12 MAR 1991 U.S. DEPARTMENT OF THE NAVY NAVY RESALE ACTIVITY, GUAM (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1689 (Union) 0-AR-2025 ORDER DISMISSING EXCEPTIONS On February 1, 1991, the Authority issued an Order dismissing the Union's exceptions to the award of Arbitrator Thomas Q. Gilson in the above-captioned case for failure to respond to the Authority's January 9, 1991 Order directing the Union to show cause why its exceptions should not be dismissed as untimely filed. Subsequent to the issuance of the Authority's February 1, 1991 Order, the Authority received the Union's response to its January 9, 1991 Order to Show Cause. The envelope containing the Union's submission is postmarked January 25, 1991 and establishes that the Union's submission was timely filed. Therefore, the Authority's February 1, 1991 Order is rescinded. However, for the reasons stated below, the Union's exceptions are dismissed as untimely filed. 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). 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). See U.S. Department of Housing and Urban Development and American Federation of Government Employees, AFL - CIO, Local 476, 27 FLRA 852 (1987). Lee Also U.S. Department of the Air Force, Albrook Air Force Base, Panama and National Maritime Union, 39 FLRA No. 51 (1991). The Union's submission in response to the Authority's Order to Show Cause includes a copy of the envelope in which the Arbitrator transmitted his award to the Union. The envelope shows a metered postmark of October 18, 1990. As the Arbitrator's award was served on the Union by mail on October 18, 1990, the Union's exceptions to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than November 21, 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 November 26, 1990. The Union argues that the Arbitrator sent his award by certified mail, return receipt requested because the Arbitrator intended personal service on the Union. The Union concludes that since the award could not have been served on any person other than Mr. Cruz, the Union President, personal service was made upon the Union on October 27, 1990, the date the Union received the award. Consequently, the Union argues that the 30-day period for filing exceptions commenced on the date of receipt and the Union's exceptions should be considered timely filed. 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. mail or is delivered in person--controls. 5 C.F.R. 2429.27(d). In addition, the Union's argument that certified mail is a form of personal delivery is misplaced. Section 2429.27(b) of our Regulations provides that service of any document "shall be made by certified mail or in person." Clearly, the Authority's regulations contemplate two (2) modes of service, one by certified mail and the other by personal service. See also American Federation of State, County and Municipal Employees, Local 478 and U.S. Commission on Civil Rights 20 FLRA 164 (1985).