U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917 (Authority decision, December 16, 1988)

Final FLRA decision, later rescinded. This order dismissed the union's arbitration exceptions as untimely, but the Authority rescinded it on August 3, 1989, in 33 FLRA 885 and reopened the case. This dismissal no longer controls the exceptions. 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.

Plain-English summary

AFGE Local 1917 filed exceptions to an arbitration award in a case involving the Immigration and Naturalization Service. The Authority initially presumed that the award was mailed on its October 25, 1988, date and calculated a November 28 deadline. Because the union filed on December 3, the Authority dismissed the exceptions as late. On reconsideration, the Authority learned that the award had first been mailed from the United Kingdom and later entered the U.S. mail system. In its August 3, 1989, order, it rescinded this dismissal and held that the exceptions were timely.

Decision snapshot

• Authority: Arbitration exception deadline under 5 U.S.C. § 7122(b) and former 5 C.F.R. § 2425.1.
• Outcome: December 1988 dismissal rescinded by the Authority in 33 FLRA 885.
• Key point: The original deadline calculation used a presumed U.S. mailing date that reconsideration later corrected.

Full text (FLRA public release)

[ v33 p843 ]
33:0843(105)AR

The decision of the Authority follows:

33 FLRA No. 105

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. IMMIGRATION AND NATURALIZATION
SERVICE

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1917

0-AR-1653

ORDER

December 16, 1988

The Union has filed with the Authority exceptions to the award of Arbitrator John P. Finan 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 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 5 C.F.R. § 2425.1, as amended.(2) The date of service is the day the matter served is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). The Arbitrator's award is dated October 25, 1988, and it is presumed to have been served on the parties by mail on that same date. 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. Therefore, in order to be timely filed, any exceptions to Arbitrator Finan'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 November 28, 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) However, the Union's exceptions were filed on December 3, 1988.

Accordingly, the Union's exceptions are
dismissed.

For the Authority.

_________
Clyde B. Blandford,
Jr.
Acting Executive Director

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. 5 C.F.R. § 2425.1, as amended.

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.