39:1109(94)AR - U.S. DEPARTMENT OF THE NAVY NAVY RESALE ACTIVITY, GUAM and AFGE LOCAL 1689 -- 1991 FLRAdec AR


[ v39 p1109 ]
39:1109(94)AR
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Authority's February 1, 1991 Order is rescinded.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).