27:0096(16)AR - Ass'n of Civilian Technicians and Pennsylvania NG -- 1987 FLRAdec AR

 27 FLRA No. 16
 
 ASSOCIATION OF CIVILIAN TECHNICIANS
 Union
 
 and
 
 PENNSYLVANIA NATIONAL GUARD
 Activity
 
                                            Case No. O-AR-1298
 
                   ORDER ON MOTIONS FOR RECONSIDERATION
 
    This matter is before the Authority on separate motions filed by the
 Activity and the Union seeking reconsideration of the Authority's Order
 of February 10, 1987, dismissing the Activity's exceptions to the award
 of Arbitrator Francis X. Quinn as untimely filed.
 
    In its motion for reconsideration, the Activity contends that because
 the date of service of the Arbitrator's award was December 26, 1986, and
 not December 23, 1986, which was the date of the award, its exceptions
 were timely filed.  In support of this contention, the Activity has
 submitted the envelope in which the Arbitrator's award was mailed,
 postmarked December 26, 1986.
 
    In its motion, the Union supports the Authority's Order dismissing
 the Activity's exceptions as untimely filed.  However, the Union argues
 that since the time period for filing exceptions to an arbitrator's
 award is set by statute, the Authority erred in calculating the time
 period for filing the exceptions by adding 5 days for mailing under
 section 2429.22 of the Authority's Rules and Regulations.  The Union
 argues that the legislative history of section 7122(b) of the Federal
 Service Labor-Management Relations Statute (the Statute) does not
 support the Authority's calculation.  Alternatively, the Union argues
 that there has been no competent evidence that would establish that the
 Arbitrator's award was served later than December 23, 1986.
 
    Under section 2429.17 of the Authority's Rules and Regulations, a
 party that can establish "extraordinary circumstances" may move for
 reconsideration of a final decision or order of the Authority.  For the
 reasons set forth below, we find that the Activity has established the
 necessary "extraordinary circumstances" for reconsidering the dismissal
 order.  The Union has not.
 
    Section 7122(b) of the Statute provides that "(i)f no exception to an
 arbitrator's award is filed under subsection (a) of this section during
 the 30-day period beginning on the date the award is served on the
 party, the award shall be final and binding." Section 2429.22 of the
 Authority's Rules and Regulations provides in pertinent part that
 "whenever a party has a right to do some act . . . within a prescribed
 period of time after service of a notice or paper upon such party, and
 the notice or paper is served by mail, five (5) days shall be added to
 the prescribed period." In computing the period for filing exceptions to
 an arbitrator's award, the Authority will add 5 days to the period if
 the award was served by mail on the filing party.
 
    The Union's argument that the Authority erred by adding 5 days to the
 period for filing exceptions under section 7122(b) of the Statute in its
 computation of the period cannot be sustained.  When the Federal Service
 Labor-Management Relations Statute was enacted in 1978, section 7122(b)
 provided that an arbitrator's award was final and binding if no
 exception was filed "during the 30-day period beginning on the date of
 such award." The Authority's Rules and Regulations which implemented
 section 7122(b) of the Statute provided further that "the time limit for
 filing an exception to an arbitration award is thirty days beginning on
 and including the date of the award." 5 C.F.R. Section 2425.1(b) (1981)
 (emphasis added).  Under section 2429.22, 5 days were not added to the
 period for filing exceptions if the award was served by mail.
 
    In 1983, Congress amended section 7122(b) of the Statute by section 4
 of the Civil Service Miscellaneous Amendments Act of 1983 to provide
 that the time period for filing exceptions would start with the date the
 award was served on the filing party, instead of the date of the award.
 Pub. L. No. 98-224, Section 4, 98 Stat. 47, 48 (1984), codified in 5
 U.S.C. Section 7122(b) (Supp. III 1985).  The legislative history of
 this amendment to section 7122(b) of the Statute reveals Congressional
 intent to insure that the 30-day period for filing exceptions would not
 be lessened due to an arbitrator mailing an award after the date the
 award was issued.  /1/ There is no indication in the legislative history
 of section 7122(b) of the Statute that Congress intended to preclude
 adding the additional 5 days provided by section 2429.22 of the
 regulations to the time period for filing exceptions when service is by
 mail.
 
    Section 2429.23(d) of the Authority's rules provides that the time
 limit established in 5 U.S.C. Section 7122(b) "may not be extended or
 waived under this section." Contrary to the Union's contention, the
 Authority has not done so in this instance.  The Authority has construed
 the period so that when an arbitrator's award is served on a party by
 mail, the time related to mailing the award will not be counted against
 the time period for filing exceptions.  /2/ This interpretation is
 consistent with the intent expressed by Congress in its amendment of
 section 7122(b) of the Statute (see n.1, above), that a full 30-day
 period be available to parties for filing exceptions to an arbitration
 award.  Accordingly, the Union's motion for reconsideration is denied.
 
    With regard to the Activity's motion, while the Arbitrator's award
 was dated December 23, 1986, the envelope containing the award addressed
 to the Activity is postmarked December 26, clearly showing that it was
 not served by mail on the Activity until that latter date.
 Additionally, in calculating time periods, the expiration date of the
 initial period for filing exceptions provided by section 2425.1 of the
 rules must first be determined.  If an award was served by mail, the
 additional 5 days authorized under section 2429.22 of the rules must
 then be added.  /3/
 
    The computation for determining the due date for the Activity's
 exceptions in the present case is as follows:  Under section 7122(b) of
 the Statute, as amended, and section 2425.1 of the Authority's rules, as
 amended, the 30-day period for filing exceptions to the Arbitrator's
 award expired on January 24, 1987.  Under section 2429.21 of the rules,
 whenever any time period ends on a Saturday, Sunday or legal holiday,
 the time limit "shall run until the end" of the next work day.  In this
 case, since January 24, 1987 was a Saturday, the time period ran to the
 close of business on Monday, January 26, 1987.  Since the award was
 served by mail, 5 additional days must be added to the due date as
 provided by section 2429.22 of the rules.  Therefore, by operation of
 section 2429.22, the due date was January 31, 1987.  Again, as January
 31 was a Saturday, section 2429.21 extended the due date for filing
 exceptions to the end of the next work day, Monday, February 2, 1987.
 Therefore, any exceptions to the Arbitrator's award had to be postmarked
 no later than February 2, 1987.  Thus, the Activity's exceptions were
 timely filed on January 28, 1987.  Accordingly, the Authority's Order of
 February 10, 1987, dismissing the Activity's exceptions as untimely
 filed, is hereby rescinded and the case is reopened for further
 processing.
 
    Consistent with section 2425.1 of the Authority's Rules and
 Regulations, the Union shall have 30 days from the date of service of
 this Order to file an opposition to the exceptions with the Authority.
 The Union's opposition must be served on the Activity and a statement of
 service must be included with the Union's submission to the Authority.
 
    Issued, Washington, D.C., May 22, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Congrresswoman Patricia Schroeder stated regarding this change
 that "Since arbitrators are not infallible in promptly mailing their
 orders, the 30-day period may be truncated by the negligent action of an
 individual who is not even a party to the proceedings." See 129 Cong.
 Rec. H 10019 (daily ed. Nov. 16, 1983) (remarks of Rep. Schroeder).
 
    (2) Under section 2424.1 and 2429.22 of the Authority's rules, the
 Authority has construed the statutory 15-day time period for filing a
 negotiability appeal under section 7117(c)(2) of the Statute so that it
 starts to run 15 days after the date of service of the Agency's
 allegation of nonnegotiability, with 5 days added to the time period if
 the allegation of nonnegotiability is served by mail on the union.
 Further, like the time period for filing exceptions to an arbitrator's
 award under section 7122(b) of the Statute, the period for filing a
 negotiability appeal under section 7117(c)(2) of the Statute may not be
 extended or waived pursuant to sectionn 2429.23(d) of the Authority's
 rules.
 
    (3) United States Department of Justice, Bureau of Prisons,
 Metropolitan Correctional Center, New York, New York and American
 Federation of Government Employees, AFL-CIO, Local 3148, 25 FLRA No. 7
 (1986).