HHS Social Security Administration and AFGE (Authority decision, August 15, 1986)

Final FLRA decision. The Authority dismisses the agency's arbitration exceptions as untimely. Under 5 U.S.C. § 7122(b), an award becomes final and binding when no timely exceptions are filed. The order concerns arbitration awards; ordinary judicial review of Authority arbitration orders is generally unavailable under 5 U.S.C. § 7123(a)(1) unless the order involves an unfair labor practice under § 7116.

Plain-English summary

An arbitrator issued bench awards on May 16, 1985, granting travel and preparation time for union representatives at an SSA field office. The agency asked months later whether those awards were final, then filed exceptions on March 4, 1986. The Authority held that the awards were final when issued and that a later request for clarification did not restart the filing clock. The exceptions were due June 14, 1985, so the Authority dismissed them without reaching their merits.

Decision snapshot

• Authority: Arbitration exceptions deadline under 5 U.S.C. § 7122(b).
• Outcome: Agency exceptions dismissed as untimely.
• Key point: Asking an arbitrator to clarify an award did not extend the deadline when the award was not changed.

Full text (FLRA public release)

[ v23 p157 ]

23:0157(19)AR

The decision of the Authority follows:

23 FLRA No. 19

U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union

Case No. 0-AR-1113

ORDER DISMISSING EXCEPTIONS

This matter is before the Authority on exceptions to the award of Arbitrator Justin C. Smith field by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons that follow, it has been determined that the Agency's exceptions must be dismissed as untimely.

This case involves a dispute submitted by the parties to the Arbitrator concerning official time for representational activities. By agreement of the parties, a two-phase arbitration process was established to resolve the basic dispute and the resulting numerous individual grievances. The first phase involved the interpretation of the official time provisions of the Statute and the parties' collective bargaining agreement. In the second phase, the Arbitrator held hearings to resolve, by bench decisions when practicable, specific grievances pending in the various regions of the Agency. The exceptions in this case have been filed to bench decisions of the Arbitrator rendered on May 16, 1985, in which he awarded travel time and preparation time for representatives in the Agency's Boston field office. In December 1985, the Agency requested that the Arbitrator clarify whether his bench decisions were to be considered final awards. The Arbitrator responded to the Agency's request by letter of January 22, 1986, essentially reiterating his position as originally announced in January 1984, that bench awards were to be considered final on the day they were rendered. The Agency then filed its exceptions with the Authority on March 4, 1986.

Under section 7122(b) of the Statute, as amended, /1/ section 2425.1 of the Authority's Rules and Regulations, as amended, /2/ which amendments are applicable to these exceptions, and under sections 2429.21 and 2429.22 of the Rules and Regulations, which are also applicable to computation of the time limit involved in this case, any exceptions to the Arbitrator's award of May 16, 1985, had to be filed with the Authority by the close of business on June 14, 1985.

The Authority has repeatedly indicated that a party's request for clarification of an award does not operate to extend the time limit for filing exceptions. Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984). Only when an arbitrator in response to a clarification request modifies an award and the modification gives rise to the deficiencies alleged in the exceptions has the Authority held that the filing period for exceptions began with the arbitrator's response to the request for clarification. See 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, it is clear that in his response of January 22, 1986, the Arbitrator did not modify his bench decisions of May 16, 1985, so as to give rise to the deficiencies alleged by the Agency. To the contrary, the Arbitrator essentially confirmed his January 1984 announcement that bench decisions were to be final when rendered and nothing in his January 22 letter constitutes a clarification of any decision regarding the individual grievances. Thus, the Agency is in effect seeking Authority review of the May 16, 1985, awards and the exceptions filed on March 4, 1986, are clearly untimely. Moreover, from the record before the Authority it is apparent that the Agency considered other related bench awards of this Arbitrator in the parties' official time dispute to be final when rendered and ripe for filing exceptions with the Authority. See American Federation of Government Employees and Social Security Administration, 21 FLRA No. 14 (1986); U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 22 FLRA No. 16 (1986).

Accordingly, and apart from other considerations, the Agency's exceptions are dismissed.

For the Authority.

Issued, Washington, D.C., August 15, 1986.
/s/ Harold D. Kessler
Harold D. Kessler
Director, Office of Case
Management
FEDERAL LABOR RELATIONS AUTHORITY

--------------- 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).