47:1391(131)AR - - Treasury, Customs Service, Nogales, AZ and NTEU, Chapter 116 - - 1993 FLRAdec AR - - v47 p1391
[ v47 p1391 ]
The decision of the Authority follows:
47 FLRA No. 131
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
ORDER DISMISSING EXCEPTIONS
July 28, 1993
The Agency has filed exceptions to the award of Arbitrator Milden J. Fox in the above-captioned case. The Union has filed an opposition to the Agency's exceptions, and the Agency has filed a reply to the Union's opposition. For the reasons set forth below, the Agency's exceptions must be 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). 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 February 12, 1993. Presuming that the award was deposited in the U.S. mail on that date, any 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 March 22, 1993, in order to be considered timely. 5 C.F.R. §§ 2425.1(b), 2429.21(b) and 2429.22. The Agency's exceptions were mailed in an envelope without a postmark. The Authority received the Agency's exceptions on April 20, 1993. Under Section 2429.21(b) of the Authority's Rules and Regulations, if no postmark is evident, a filing is presumed to have been mailed 5 days prior to receipt by the Authority. The filing date is, therefore, presumed to be April 15, l993. See Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA 51 (1987).
The Agency asserts that the February 12, l993, award was an interim award because the Arbitrator retained jurisdiction for 30 days after issuing the award for the purpose of resolving questions concerning attorney fees. The Agency argues that the award became final on March 18, l993, 30 days after the Agency received the award and that the 30 day period for filing its exceptions did not expire until April 17, l993.
On February 12, l993, the Arbitrator issued a final and binding award on the merits and retained jurisdiction "to make an award" "regarding the payment or nonpayment of attorney fees." Award at 36-37. The Union did not file a request for attorney fees, and the Arbitrator did not issue a subsequent award. It is well established that an arbitrator may retain jurisdiction after issuing a final and binding award on the merits for the purpose of resolving questions relating to attorney fees. See, for example U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 42 FLRA 76, 81 (1991); U.S. Department of Veterans Administration, Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 38 FLRA 232, 240 (1990). However, the retention of jurisdiction by the Arbitrator merely to resolve questions concerning attorney fees does not affect the finality of the award on the merits. Moreover, the retention of jurisdiction by the Arbitrator for the purpose of resolving questions relating to attorney fees does not interfere in any way with the Agency's right to file exceptions to the award under section 7122 of the Federal Service Labor-Management Relations Statute. See, for example