45:0789(68)AR - - VA Medical Center, Bronx, NY and AFGE Local 1168 - - 1992 FLRAdec AR - - v45 p789
[ v45 p789 ]
The decision of the Authority follows:
45 FLRA No. 68
The Agency has filed exceptions to the award of Arbitrator John M. Stochaj in the above-captioned case. On May 27, 1992, the Authority directed the Agency to show cause why its exceptions should not be dismissed as untimely filed. The Agency filed a timely response to the Authority's Order. For the reasons set out below, the Agency's exceptions must be dismissed.
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). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). 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). U.S. Department of the Air Force, Albrook Air Force Base, Panama and National Maritime Union, 39 FLRA 629 (1991).
The Arbitrator's award is dated April 7, 1992. Presuming that the award was deposited in the U.S. mail on that date, an exception to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than May 11, 1992, in order to be considered timely. 5 C.F.R. °° 2425.1(b), 2429.21(b) and 2429.22. The Agency's exceptions, mailed in an envelope without a postmark were received by the Authority on May 18, 1992, and are presumed to have been filed on May 13, 1992. See 5 C.F.R. ° 2429.21(b).
It is undisputed that the Arbitrator served his award on the parties as shown in the above caption for this case. The Agency asserts, however, that the Arbitrator "sent his award to the Bronx VA Medical Center despite the fact that he was informed at the arbitration that the Agency was represented by an attorney in the Office of the Regional Counsel, located in Brooklyn, New York". The Agency states that its representative received a copy of the award on April 16, 1992, only after it was forwarded by the Medical Center. The Agency argues that because the award was not properly served, the time limit for filing exceptions should be extended to May 15, 1992--30 days from the date the Agency's representative received the award.
Contrary to the Agency's assertion, nothing in the record establishes that the Arbitrator was informed during the arbitration hearing, or at any other time in advance of the issuance of the Arbitrator's award, that the Agency's copy of the award was to be served on it at a location other than the Bronx Veterans Affairs Medical Center. Consequently, the Agency's claim that the Arbitrator's award was not properly served on it is rejected.
Therefore, as Agency's exceptions were not filed with the Authority within the prescribed time limit, and as the time limit for filing exceptions may not be extended or waived by the Authority, the Agency's exceptions are dismissed.
For the Authority.