U.S. Department of Labor, Occupational Safety and Health Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 2139 (Authority decision, September 20, 1988)

Final FLRA decision. The Authority dismisses the union's exceptions to an arbitration award as untimely. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

AFGE Local 2139 challenged an arbitration award involving OSHA Region VI. The arbitrator transmitted the award with a bill dated June 28, 1988. The Authority calculated that exceptions mailed to it had to be postmarked by August 1, including the extra five days allowed for mail service. The union's envelope was postmarked August 16. The Authority dismissed the exceptions without reaching their merits.

Decision snapshot

• Authority: Thirty-day arbitration exception period under 5 U.S.C. § 7122(b).
• Outcome: Union exceptions dismissed as untimely.
• Key point: The date an award is served controls the filing period, even when exceptions bear an earlier date.

Full text (FLRA public release)

[ v32 p1233 ]
32:1233(165)AR

The decision of the Authority follows:

32 FLRA No. 165

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, REGION VI

DALLAS, TEXAS

Activity

and

NATIONAL COUNCIL OF FIELD LABOR

LOCALS, LOCAL 2139, AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO

Union

Case No. 0-AR-1589

ORDER

The Union has filed with the Authority exceptions to the award of Arbitrator Barnett M. Goodstein pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1. The Union's exceptions are untimely and must be dismissed.

The Arbitrator's award is dated June 27, 1988. The Arbitrator's bill to the parties for his services is dated June 28, 1988. Because the Arbitrator's bill transmitted the award to the parties, the date of service of the award on the parties is June 28, 1988.

The Union's exceptions, although dated July 12, 1988, were transmitted to the Authority in an envelope postmarked August 16, 1988. The exceptions were received August 18, 1988.

The time limit for filing an exception to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 U.S.C. § 7122(b), as amended,(1) and C.F.R.
§ 2425.1, as amended.(2) The date of
service is the day when the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d) (1988). The date of service of the award on the parties is June 28, 1988--the date of the Arbitrator's bill transmitting the award. In the absence of evidence to the contrary, it is concluded that the award was served on the parties by mail. Whenever a party is served by mail, 5 days are added to the prescribed period for filing the exception. 5 C.F.R. § 2429.22 (1988). Therefore, in order to be timely filed, any exceptions to Arbitrator Goodstein's award had to be either mailed to the national office of the Authority in Washington, D.C., and postmarked by the U.S. Postal Service no later than August 1, 1988, or if filed in person, received at the Authority's national office no later than the close of business that same date. 5 C.F.R. § 2429.21(b), as amended.(3) The Union's exceptions were filed on August 16, 1988.

Accordingly, the Union's exceptions are
dismissed.

For the Authority.

Issued, Washington, D.C.,

_____
Harold D. Kessler

Director, Information Resources and Research Services

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. Section 7122(b) of 5 U.S.C. was amended by the Civil
   Service Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, § 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).
   The amendments to section 2425.1 of 5 C.F.R. are applicable to exceptions pending or filed with the Authority on or after March 2, 1984.

3. 51 Fed. Reg. 45751 (1986).
   The amendments to section 2429.21 of 5 C.F.R. are applicable to exceptions pending or filed with the Authority on or after December 31, 1986.