15:0181(28)AR - Portsmouth Naval Shipyard and FEMT Council -- 1984 FLRAdec AR

 15 FLRA No. 28
 
 PORTSMOUTH NAVAL SHIPYARD
 Activity
 
 and
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL, AFL-CIO
 Union
 
                                            Case No. O-AR-657
 
                        ORDER DISMISSING EXCEPTIONS
 
    This case is before the Authority on exceptions to the award of
 Arbitrator John P. McCrory separately filed on behalf of the Activity
 and the Union pursuant to section 7122(a) of the Federal Service
 Labor-Management Relations Statute and section 2425.1 of the Authority's
 Rules and Regulations.  For the reasons stated below, it has been
 determined that the exceptions of both parties must be dismissed as
 untimely filed.
 
    The Arbitrator's award in this case is dated July 28, 1983, and
 appears to have been served on the parties by mail on the same date.  In
 the award, the Arbitrator retained jurisdiction "for a period of 90 days
 to resolve any issue which may arise with respect to this award." The
 Activity submitted two requests for clarification and the Union
 submitted one such request to the Arbitrator within the 90-day period.
 On October 21, 1983, while those requests were pending before the
 Arbitrator, the Activity filed its exceptions to the award with the
 Authority.  On October 25 and 26, 1983, the Arbitrator responded to the
 parties' requests for clarification, essentially reiterating
 determinations set forth in his July 28 award.  The Union filed its
 exceptions to that award with the Authority on November 23, 1983.  The
 Activity renewed its exceptions by submissions of November 9 and 25,
 1983.
 
    Under section 7122(b) of the Statute, as amended, /1/ and section
 2425.1(b) of the Authority's Rules and Regulations, as amended, /2/
 which amendments are applicable to exceptions to arbitration awards
 pending or filed with the Authority on or after March 2, 1984, and under
 sections 2429.21 and 2429.22 of the Rules and Regulations, which are
 also applicable to computation of the time limit here involved, any
 exceptions to the Arbitrator's award of July 28 had to be filed with the
 Authority by the close of business on August 31, 1983.  Thus, it
 immediately and clearly appears that the exceptions filed by the
 Activity on October 21, 1983, and by the Union on November 23, 1983, are
 untimely.  Indeed, the Union admits as much in its exceptions, advising
 the Authority that it was only filing in the event the Authority
 determined that the time limit had not expired.  The Activity, however,
 appears to take the position that its exceptions are timely because the
 Arbitrator retained jurisdiction of the case for 90 days and the time
 limit for filing exceptions did not begin to run at least until the
 expiration of the retention period.
 
    In arbitration cases that have come before the Authority, it is not
 uncommon for an arbitrator to have retained jurisdiction for a period of
 time to resolve questions or problems that might arise concerning the
 award.  However, retention for such purpose does not render an award
 interlocutory or extend the time limit for filing exceptions.  /3/ Nor
 does a party's request for clarification of an award and the mere
 possibility of modification of the award by the arbitrator render the
 award interlocutory.  /4/ The Authority has, however, held in the
 particular circumstances of the case where an arbitrator, in response to
 a clarification request, modifies the award in such a way as to give
 rise to alleged deficiencies, the filing period begins with the modified
 award.  /5/ In this case, however, the Arbitrator did not modify his
 award in any way as to give rise to the deficiencies alleged in the
 parties' exceptions.  Indeed, the Activity, in its submissions of
 November 9 and 25, 1983, states that the Arbitrator's responses to the
 parties' requests did not affect the basis upon which the Activity had
 predicated its October 21, 1983, exceptions.
 
    Thus, the time limit for filing exceptions to the Arbitrator's award
 in this case began on the date the award was served on the parties,
 i.e., July 28, 1983, and expired on August 31, 1983.  The exceptions
 filed by the Activity and the Union therefore are untimely.
 
    Accordingly, the Activity's and Union's exceptions are hereby
 dismissed.
 
    For the Authority.
 
    Issued, Washington, D.C., June 27, 1984
                                       Harold D. Kessler, Director, Case
                                       Management
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7122(b) of the Statute was amended by the Civil Service
 Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98
 Stat. 47, 48 (1984)) to provide that the time limit for filing
 exceptions to an arbitrator's award begins on the date the award is
 served on the filing party.
 
 
    /2/ 49 Fed.Reg. 22623 (1984).
 
 
    /3/ See, Social Security Administration and American Federation of
 Government Employees, Local 1164, AFL-CIO, 14 FLRA No. 70, n.1 (1984).
 
 
    /4/ See, e.g., American Federation of Government Employees, AFL-CIO,
 Local 1612 and U.S. Department of Justice, Bureau of Prisons, U.S.
 Medical Center for Federal Prisoners, Springfield, Missouri, 6 FLRA 5
 (1981).
 
 
    /5/ U.S. Department of the Interior, Bureau of Land Management,
 Eugene District Office and National Federation of Federal Employees,
 Local 1911, 6 FLRA 401, 403 n.2 (1981).