Panama Canal Commission and Maritime Metal Trades Council (Authority decision, April 16, 1986)

Final FLRA decision. The Authority denies reconsideration of its earlier dismissal of arbitration exceptions. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

The Maritime Metal Trades Council asked the Authority to reconsider an order dismissing its arbitration exceptions as late. It said mail service between Panama and the United States and its past practice of sending filings to a regional office justified waiving deadlines. The Authority acknowledged that overseas mailing difficulties might sometimes be extraordinary but found no such circumstances here: the union waited nearly two months after receiving the dismissal order to seek reconsideration. It denied the late request. It also explained that the statutory deadline for the original exceptions could not be waived and that arbitration exceptions had to be filed at the national office.

Decision snapshot

• Authority: Exceptions deadline under 5 U.S.C. § 7122(b) and reconsideration rule at 5 C.F.R. § 2429.17.
• Outcome: Reconsideration denied; original dismissal of late exceptions stands.
• Key point: Mailing difficulties did not excuse this late reconsideration request, and arbitration exceptions were due at the national office.

Full text (FLRA public release)

[ v21 p303 ]

21:0303(38)AR

The decision of the Authority follows:

21 FLRA No. 38

THE PANAMA CANAL COMMISSION
Activity

and

MARITIME METAL TRADES COUNCIL,
AFL-CIO
Union

Case No. 0-AR-1059

ORDER DENYING REQUEST FOR RECONSIDERATION

This case is before the Authority on a request for reconsideration filed by the Union on February 25, 1986, seeking reconsideration of the Authority's Order of December 9, 1985, dismissing the Union's exceptions (20 FLRA No. 100 (1985)). For the reasons set forth below, the Union's request must be denied.

The Authority dismissed the Union's exceptions to the arbitrator's award on the basis that such exceptions were untimely. The Authority found that the arbitrator's award was dated October 3, 1985, and pursuant to 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 filed on or after March 2, 1984, and under sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, which are also applicable to computation of time limit here involved, the exceptions had to be filed in the national office of the Authority not later than the close of business on November 6, 1985. However, the exceptions were not filed with the Authority at its national office until November 20, 1985, after having been mistakenly mailed to the Authority's Dallas Regional Office where it was received on November 19, 1985, and immediately forwarded.

In its request for reconsideration, which the Union recognizes is untimely filed under section 2429.17 of the Authority's Rules and Regulations, /3/ it requests a waiver of both the time limit for filing a request for reconsideration and the time limit for filing the original exceptions to the arbitration award on the basis of the unique mailing problems that exist between Panama and the United States. The Union asserts in this regard that (1) it did not receive the Authority's December 9, 1985, Order Dismissing Exceptions until December 31, 1985, and (2) it had filed all previous exceptions with the Dallas Regional Office and those in this case were mailed with sufficient time for the Dallas Regional Office to forward its exceptions to the national office of the Authority.

With respect to the untimely request for reconsideration, section 2429.23(b) of the Authority's Rules and Regulations provides, in pertinent part, that "Except as provided in paragraph (d) of this section, the Authority . . . may waive any expired time limit . . . in extraordinary circumstances." While recognizing that mail delivery between Panama and the United States presents unique problems for a party meeting the filing requirements and such problems may, in appropriate circumstances, provide "extraordinary circumstances" for waiving an expired time limit, such circumstances are not present here.
/4/ In this regard, it is noted particularly that the Union acknowledges receipt of the Authority's Order of December 9, 1985 on December 31, 1985, but did not file its request for reconsideration until February 25, 1986. /5/

Accordingly, as the Union's request for reconsideration does not present extraordinary circumstances warranting waiver of the time limit for filing such request, it must be denied.

For the Authority.

Issued, Washington, D.C., April 16, 1986.
/s/ Harold D. Kessler
Director of 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, Section 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).

(3) Section 2429.17 of the Authority's Rules and Regulations provides that a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may file a motion for reconsideration of a final decision or order of the Authority within ten (10) days after service of such decision or order. Therefore, under section 2429.17 of the Authority's Rules and Regulations, and sections 2429.21 and 2429.22, which are also applicable to the computation of the time limit here involved, the Union's request for reconsideration was due in the national office of the Authority before the close of business on December 24, 1985. However, the Union's request was not filed until February 25, 1986.

(4) The Authority is not unmindful of the unique problems experienced by parties making filings from outside of the continental United States and it is the Authority's practice consistent with the provisions of the Statute and section 2429.23 of the regulations to grant extensions of time where good cause is shown and to waive expired time limits in extraordinary circumstances.

(5) While it is concluded that the request for reconsideration must be dismissed as untimely, it is noted that even if timely, no basis exists for granting the Union's request that the time limit for filing the original exceptions to the arbitrator's award be waived. Section 2429.23(d) of the Authority's Rules and Regulations provides, in pertinent part, that the time limits established in 5 U.S.C. 7122(b) "may not be extended or waived . . . . " Section 7122(b) of the Statute establishes the 30 day time period for filing exceptions to an arbitrator's award. As described above, the exceptions had to be filed in the National Office not later than close of business on November 6, 1985. Although the exceptions were mailed by the Union through the Air Force APO mail system on November 2, 1985, they were not received by the Dallas Regional Office until November 19, 1985, (possibly being delayed by the fact that they were addressed to the former address of the Regional Office). Consequently, they were not filed with the National Office until November 20, 1985. While the Union did mail the exceptions on November 2, 1985, presumably in sufficient time to be timely received if properly addressed, exceptions to an arbitrator's award cannot be filed at a Regional Office. Since the inception of the Authority in 1979, applicable regulations have required that exceptions to arbitration awards filed with the Authority be filed at the National Office.