48:1394(147)AR - - AFGE, Local 2 & Army, Military Traffic Management Command, Falls Church, Virginia - - 1994 FLRAdec AR - - v48 p1394

48 FLRA No. 147

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Alfred Avins filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.

The Arbitrator sustained the grievance of an employee challenging a 3-day suspension for falsely reporting his work hours and receiving compensation for hours not worked. For the following reasons, we conclude that the Agency's exception fails to establish that the award is deficient. Accordingly, we will deny the exception.

II. Preliminary Matter

A. Positions of the Parties

The Union argues that the Agency's exception is untimely and, therefore, should be dismissed. The Union notes that the Arbitrator's award is dated June 24, 1993, and that the Agency's exception was filed on August 12, 1993, which "is 48 days after the award date . . . ." Opposition at 1. The Union also states that in determining if the Agency's exception is timely, it is not the date on which the Agency received the Arbitrator's award that is relevant but "the date the award is signed, plus 5 days for mailing." Id. The Union argues that the Agency failed to meet the filing requirements for a timely exception and failed to request an extension of time in which to file its exceptions.

In addition, the Union argues that the timing of the Agency's exception violates Article 2, Section 8 of the parties' collective bargaining agreement. That provision states that an award is final and binding if an exception is not filed within 30 days of the date of the award.

The Agency acknowledges that the Arbitrator's award was dated June 24, 1993. However, the Agency maintains that the Arbitrator's initial mailing of the award in an envelope postmarked June 26, 1993, was returned to the Arbitrator by the U.S. Postal Service "as undeliverable . . . ." Exception at 1. The Agency claims that the award was then sent to the Agency in an envelope postmarked on July 10, 1993. Consequently, the Agency argues that July 10, 1993, should be considered as the date of service of the award.

B. Analysis and Conclusions

We conclude that the Agency's exception was timely 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 U.S. Department of the Air Force, Headquarters, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 44 FLRA 157, 160 (1992); 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).

The Arbitrator's award is dated June 24, 1993. We note, however, that the original envelope in which the award was mailed has a label attached to it by the U.S. Postal Service that states "RETURN TO SENDER[,] NOT DELIVERABLE AS ADDRESSED[,] UNABLE TO FORWARD[.]" Enclosure to Exception. Because the award as originally mailed could not be delivered by the Postal Service as addressed, we reject the Union's contention that June 24, 1993, is the date from which the timeliness of the Agency's exception must be measured. In this case, proper service of the award by the Arbitrator began with the date on which the award was delivered to the Postal Service with an address that allowed for delivery to be perfected. That date is July 10, 1993. Therefore, to be considered timely, the exception had to be filed by August 8, 1993. August 8, 1993, was a Sunday, so the exception had to be filed by August 9, 1993. 5 C.F.R. § 2429.21(a). Because the exception was served by mail, 5 days were added. 5 C.F.R. § 2429.22. The filing date then became August 14, 1993. As that date fell on a Saturday, August 16, 1993, is the date on which the Agency's exception had to be received in the Authority's headquarters in order to be considered timely filed. 5 C.F.R. § 2429.21(a). See also U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 40 FLRA 1236, 1241 (1991). The Agency's exception was received by the Authority's Office of Case Control on August 13, 1993. Therefore, we find that the exception was timely filed.

Finally, the Union's contention that the timing of the filing of the exception violated the parties' agreement is not before us. The timeliness of exceptions is addressed under the Statute and the Authority's Rules and Regulations, and not under the terms of a negotiated agreement.

III. Background and Arbitrator's Award

The dispute in this matter arose when the Agency suspended the grievant for 3 days for falsely reporting his work hours and receiving compensation for hours not worked. When the parties could not resolve this matter through their grievance procedure, it was submitted to arbitration. The award does not reflect the precise issues that were before the Arbitrator for resolution.

The grievant, a civilian GS-12 Traffic Management Specialist, was stationed in Saudi Arabia during the Desert Storm operation. The civilian employees in Saudi Arabia worked a shift of 12 hours as did their military counterparts. The grievant's time cards were kept at his duty station in Falls Church, Virginia. From the middle of May to the middle of December 1991, while in Saudi Arabia, the grievant telephoned the Falls Church office biweekly to inform his supervisor and the office timekeeper of the hours he had worked. The grievant and his supervisor agreed, before the grievant left for Saudi Arabia, that the supervisor would presume that the grievant worked 12 hours per day unless the grievant informed the supervisor otherwise. The grievant did not see the time cards before they were processed and the presumption that the grievant worked 12-hour shifts continued until the middle of August 1991 when the grievant was required to fax a record of his work hours to the Falls Church office. However, the Arbitrator found no evidence that all of the faxes "purporting to come from [the grievant] did so." Award at 1.

An audit of the grievant's time cards in January 1992, demonstrated that there were errors in the time reports of the hours the grievant claimed to have worked. As a result, the Agency charged the grievant with falsely reporting work hours on July 5, July 6, and August 2, 1991, and imposed the 3-day suspension.

In addressing the case before him, the Arbitrator first discussed the standard of proof needed to sustain the disciplinary action imposed on the grievant. The Arbitrator note