U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476 (Authority decision, August 4, 1989)

Final FLRA decision. The Authority dismisses the agency's arbitration exceptions as untimely, leaving the award in place. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

HUD filed exceptions to an April 19, 1989 arbitration award. Assuming the award was mailed that day, the deadline with the five-day mail allowance was May 23. HUD's exceptions and its own statement of mailing were dated May 24. The agency did not respond to an order to show cause, and the Authority dismissed its exceptions as untimely without reviewing the award.

Decision snapshot

• Authority: Exception deadline and mail allowance under former 5 C.F.R. §§ 2425.1(b) and 2429.22.
• Outcome: HUD's exceptions dismissed as untimely.
• Key point: The agency's stated mailing date was one day beyond the filing deadline.

Full text (FLRA public release)

[ v33 p883 ]
33:0883(126)AR

The decision of the Authority follows:

33 FLRA No. 126

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT

WASHINGTON, D.C.

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 476

0-AR-1741

ORDER TO DISMISS

August 4, 1989

The U.S. Department of Housing and Urban Development (Agency) has filed exceptions to the award of Arbitrator Roger P. Kaplan in the above-referenced case. On July 14, 1989, the Authority directed the Agency to show cause why its exceptions should not be dismissed as untimely filed. The Agency has not filed a 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 April 19, 1989. Presuming that the award was deposited in the U.S. mail on that date, an exception to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than May 23, 1989, in order to be considered timely. 5 C.F.R. §§ 2425.1(b), 2429.21(b) and 2429.22. However, the Agency's exceptions are dated May 24, 1989. Further, in its statement of service which accompanied the exceptions, the Agency represented that the exceptions were mailed to the Authority on May 24, 1989.

The Agency's exceptions were not timely filed and the Agency has not responded to the Authority's Order to Show Cause. Accordingly, the Agency's exceptions are dismissed.

For the Authority.

_______
Clyde B. Blandford,
Jr.
Acting Executive Director

FOOTNOTES:
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have footnotes.)