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38:0256(27)AR - U.S. DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS, BILLINGS AREA OFFICE BILLINGS, MONTANA and NFFE LOCAL 478 -- 1990 FLRAdec AR


[ v38 p256 ]
38:0256(27)AR
The decision of the Authority follows:



38 FLRA NO. 27
38 FLRA 256

 21 NOV 1990


                    U.S. DEPARTMENT OF THE INTERIOR
                       BUREAU OF INDIAN AFFAIRS
                         BILLINGS AREA OFFICE
                           BILLINGS, MONTANA
                               (Agency)

                                  and

               NATIONAL FEDERATION OF FEDERAL EMPLOYEES
                               LOCAL 478
                                (Union)

                               0-AR-2001

ORDER TO DISMISS

     November 21, 1990

     The Agency has filed exceptions to the award of Arbitrator
Roger Tilbury in the above-captioned case. On October 11, 1990,
the Authority issued an Order directing the Agency to Show Cause
why its exceptions should not be dismissed as untimely filed. The
Agency filed a timely response to the Authority's Order. For the
reasons set out below, the Agency'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). 

     The Arbitrator's award is dated August 21, 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 September 24, 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 Order to Show Cause the Union states
that the agency is unable to provide proof of service of the
Arbitrator's award "since the envelope bearing the postmark was
not retained." The agency argues that it relied upon the "advice
and guidance provided by an agent of the Federal Labor Relations
Authority who determined the date of timely filing ... and
complied with that date by personal delivery." The Agency
contends that its "reliance upon the misinformation provided
constitutes extraordinary and equitable grounds" to warrant
acceptance of the Agency's exceptions.

     The advice provided by the Authority's agent is inexcusable,
and the Authority does not condone it. Although the circumstances
of this case are regrettable, 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). See U.S. Department of
Housing and Urban Development, Washington, D.C. and American
Federation of Government Employees, Local 476, 34 FLRA  309
(1990), and U.S. Department of Housing and Urban Development and
American Federation of Government Employees, AFL - CIO, Local
476, 27 FLRA  852, 854 (1987). The Agency is unable to provide
proof of service of the Arbitrator's award. Absent evidence to
the contrary, the Authority must presume that the Arbitrator's
award was served on August 21, 1990. Therefore, the Agency's
exceptions filed on October 1, 1990 were not timely filed.

     Accordingly, the Agency's exceptions are dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office