43:1359(109)AR - - Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858 - - 1992 FLRAdec AR - - v43 p1359

[ v43 p1359 ]
The decision of the Authority follows:

43 FLRA No. 109









LOCAL 1858




February 5, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion filed by the grievant in the above-referenced case seeking reconsideration of the Authority's January 10, 1992, dismissal of the grievant's exceptions as untimely filed. No opposition was filed to the motion.

For the following reasons, we conclude that the grievant has not established extraordinary circumstances warranting reconsideration of the dismissal of the exceptions. Accordingly, the motion for reconsideration will be denied.

II. The Authority's Order

Arbitrator James J. Odom, Jr. issued an award dated October 31, 1991, in this case. On December 9, 1991, the Authority received exceptions to the award filed by the grievant. The exceptions were filed by Federal Express. On December 20, 1991, the Authority directed the grievant to show cause why the exceptions should not be dismissed because: (1) it was not apparent that the grievant had standing to file the exceptions; and (2) it appeared that the exceptions were untimely.

In the grievant's response to the Authority's Order, the grievant stated that the envelope in which the arbitration award was mailed was not available but that the award was received in the grievant's attorney's office on November 1, 1991. The grievant stated also that the grievant attempted to comply with the Authority's Rules and Regulations and that the Agency was not prejudiced by the grievant's actions.

By Order dated January 10, 1992, the grievant's exceptions were dismissed. The Order stated that: (1) absent evidence to the contrary, the date of an arbitration award is presumed to be the date the award is served on the parties; and (2) as the award is dated October 31, 1991, exceptions were due by the close of business on December 4, 1991. The Order also stated that, as the exceptions were filed by Federal Express, the exceptions were considered filed on December 9, 1991, the date they were received by the Authority. Accordingly, noting that under section 2429.23(d) of the Authority's Rules and Regulations, the time limit for filing exceptions to arbitration awards may not be extended or waived, the exceptions were dismissed.(*)

III. Motion for Reconsideration

The grievant claims that reconsideration is warranted because: (1) the exceptions were timely filed; (2) the date on which the exceptions were mailed should control even though the exceptions were filed by Federal Express; (3) the award was mailed to the grievant's attorney; (4) the grievant paid for the arbitration and has been authorized to file the exceptions; and (5) the Federal Mediation and Conciliation Service currently is considering a complaint filed by the grievant regarding the Arbitrator.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of a final order of the Authority. We conclude that the grievant has not established such extraordinary circumstances here.

The time limit for filing exceptions to arbitration awards "may not be extended or waived" by the Authority. 5 C.F.R. § 2429.23(d). Accordingly, the sole question in this case is whether the exceptions were timely filed.

Exceptions may be filed by mail or in person. 5 C.F.R. § 2429.24(e). The date of filing is determined by the postmark date or, if the document is filed by personal delivery, by the date it is received by the Authority. 5 C.F.R. § 2429.21(b). See also 5 C.F.R. § 2429.27(d) ("The date of service . . . shall be the date when the matter served is deposited in the U.S. mail or is delivered in person."). As the grievant's exceptions were filed by Federal Express, there is no postmark date on the envelope. There also is no question that the exceptions were not deposited in the U.S. mail. Accordingly, the date the exceptions wer