37:0877(72)AR - U.S. ARMY HEADQUARTERS, XVIII AIRBORNE CORPS FORT BRAGG, NORTH CAROLINA and AFGE LOCAL 1770 -- 1990 FLRAdec AR
[ v37 p877 ]
37:0877(72)AR
The decision of the Authority follows:
37 FLRA NO. 72
37 FLRA 877
04 OCT 1990
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS
FORT BRAGG, NORTH CAROLINA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1770
(Union)
0-AR-1969
ORDER DISMISSING EXCEPTIONS
October 4, 1990
On August 20, 1990, the Authority issued an Order directing
the Agency to show cause why its exceptions to the award of
Arbitrator James P. Whyte in the above-captioned case should not
be dismissed as untimely. The Union filed a timely response to
the Authority's Order. For the reasons set out below, the Union's
exceptions are untimely and must be dismissed.
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). All documents filed with the Authority must be filed
in the Authority's Docket Room, 500 C Street, SW., Washington,
D.C. 20424. 5 C.F.R. 2429.24(a).
The Arbitrator's supplemental award is dated June 26, 1990,
absent evidence to the contrary, the date of the arbitration
award is presumed to be the date of service of the award.
Therefore, an exception to the award had to be either postmarked
by the U.S. Postal Service or received in person at the
Authority's Docket Room no later than July 30, 1990, in order to
be considered timely filed. 5 C.F.R. 2425.1(b), 2429.21(b) and
2429.22.
In its response to the Authority's Order to Show Cause, the
Union states that he "believe(s) that the envelope I received the
Award in was postmarked on June 27, 1990." The Union, however,
does not provide any evidence to support its assertion. 1
Even assuming that the award was postmarked on June 27,
1990, the 30-day period for filing would have ended on Thursday,
July 26, 1990. 2 Since the award was served by mail, 5 additional
days are added to the due date as provided by section 2429.22.
Therefore, an exception to the award had to be either postmarked
by the U.S. Postal Service or received in person at the
Authority's Docket Room no later than July 31, 1990, in order to
be considered timely filed.
Although, the Union's exceptions were served by certified
mail to the Authority, no postmark date is evident on the
envelope. The exceptions were received by the Authority on August
7, 1990. Because there is no postmark date on the envelope
containing the Union's exceptions, it is presumed that the
exceptions were mailed August 2, 1990--5 days prior to
receipt by the Authority. 5 C.F.R. 2429.21(b). See Veterans
Administration, Veterans Administration Medical Center, Muskogee,
Oklahoma, 29 FLRA 51 (1987) and U.S. Department of the Navy,
Naval Air Station, Corpus Christi, Texas and National Federation
of Federal Employees, Local 797, 35 FLRA 1162 (1990).
Section 2429.27(b) of the Authority's Regulations provides
that a return post office receipt or other written receipt
executed by the party or person served shall be proof of service.
(Emphasis added) The Union acknowledges that a post office
receipt could have be obtained but states that he did not "get
someone to stamp my receipt because I believed I was postmarking
my submission a day early." The Union's assertion that it
submitted its exceptions to the Post Office on July 31, 1990,
does not constitute proof of service pursuant to section
2429.27(b). See American Federation of State, County and
Municipal Employees, Local 2478 and U.S. Commission on Civil
Rights, 20 FLRA 164 (1985).
The Union further requests that the Authority consider its
exceptions as timely filed since "the agency's representative,
has no objection to the dates that I have supplied to you
herein".
Notwithstanding the Union's statement that the agency has no
objections to the dates provided by the Union, the time limit for
filing an exception to an Arbitrator's award may not be extended
or waived by the Authority. 5 C.F.R. 2429.23(d). The Union has
failed to provide evidence to support its assertions that the
Arbitrator's award was served on June 27, 1990 and its exceptions
filed on July 31, 1990. Absent evidence to the contrary, the
Authority must presume that the Arbitrator's award was served on
June 26, 1990 and the Union's exceptions postmarked on August 2,
1990.
Accordingly, the Union's exceptions were not timely filed
and are therefore dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office
FOOTNOTES
Footnote 1 The Union states that he normally does not keep
envelopes, but does "make a notation on my time records". The
Union provided a copy of the Arbitrator's supplemental award with
a date received stamp of 7/03/90. It is unclear whether this
date received stamp was the "notation on its time records"
referred to by the Union in its "supporting affidavit". If this
is the "notation", it is insufficient since it provides the
date of receipt rather than the date of service. 5 C.F.R.
2425(b). No other documentation was provided by the Union.
Footnote 2 The 30-day period for filing exceptions begins on
the date the award is served not the day after the award is
served, as suggested by the Union. 5 C.F.R. 2425(b).