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15:0816(155)AR - Customs Service, Region I, Boston, MA and NTEU -- 1984 FLRAdec AR

[ v15 p816 ]
The decision of the Authority follows:

 15 FLRA No. 155
                                            Case No. O-AR-616
                        ORDER DISMISSING EXCEPTIONS
    This case is before the Authority on exceptions to the award of
 Arbitrator Jerome Rubinstein filed by the Activity 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 must be
 dismissed as untimely filed.
    The Arbitrator's award in this case is dated January 24, 1983, and
 appears to have been served on the parties by mail on the same day.  In
 the award the Arbitrator retained jurisdiction for a period of 60 days
 "for the purpose of supervising compliance . . . and resolving any
 question that might arise with respect (to the award)." The Activity
 submitted a request for clarification within the 60 day period asking
 that the Arbitrator clarify the actions necessary in order to comply
 with the award.  On July 20, 1983, the Arbitrator responded to the
 Activity's request for clarification, essentially reiterating
 determinations set forth in his January 24, 1983, award.  The Activity
 filed exceptions to the July 20 award with the Authority on August 15,
 1983.  In this regard, the Activity had previously filed exceptions to
 the January 24 award, which exceptions were dismissed by the Authority
 as untimely (11 FLRA No. 87, Case No. O-AR-516).
    Under section 7122(b) of the Statute, as amended, /1/ and section
 2425.1 of the Authority's Rules and Regulations, as amended, /2/ which
 amendments are applicable to exceptions 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 in this case had to be filed with the Authority no
 later than the close of business on February 22, 1983.  Thus, it
 immediately and clearly appears that the exceptions filed by the
 Activity on August 15, 1983, are untimely.  The Activity, however,
 appears to take the position that its exceptions are timely since the
 Arbitrator retained jurisdiction for 60 days;  thus, the January 24
 award was not a final award and the time limit for filing did not begin
 to run until the clarification of July 20, 1983.
    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 question or problems that might arise concerning the
 award.  However, retention for such purposes does not render an award
 interlocutory or extend the time limit for filing exceptions.
 Portsmouth Naval Shipyard and Federal Employees Metal Trades Council,
 AFL-CIO, 15 FLRA No. 28 (1984);  see Social Security Administration and
 American Federation of Government Employees, Local 1164, AFL-CIO, 14
 FLRA No. 70, n.1 (1984).  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.  See 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).  The Authority has held,
 however, in cases in which an arbitrator, in response to a clarification
 request, modifies an award in such a way as to give rise to alleged
 deficiencies, the filing period begins with the modified award.  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).  In this case, however, the Arbitrator did not
 modify his award in any way as to give rise to the deficiencies alleged
 in the Activity's exceptions.  Indeed, the Activity predicated the
 instant exceptions and its exceptions to the January 24 award on
 substantially identical grounds.
    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., January 24, 1983, and expired on February 22, 1983.  The
 exceptions filed by the Activity on August 15, 1983, are therefore
    Accordingly, as the Activity's exceptions were untimely filed, they
 are hereby dismissed.
    For the Authority.
    Issued, Washington, D.C., August 30, 1984
                                       Jan K. Bohren
                                       Executive Director/Administrator
 --------------- 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 30-day period 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).