Federal Trade Commission, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 2211 (Authority decision, September 8, 1989)

Final FLRA decision. The Authority dismisses the agency's arbitration exceptions as untimely, leaving the arbitration 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

The FTC challenged an arbitration award dated and mailed May 30, 1989. It argued that the five days allowed for mail service should be counted before the 30-day exception filing period began. The Authority held that the 30 days began on the service date and that the mail allowance was added afterward. The resulting deadline was July 3; the agency's exceptions were postmarked July 5. The Authority dismissed them without reviewing the award.

Decision snapshot

• Authority: Exception period under 5 U.S.C. § 7122(b) and former 5 C.F.R. §§ 2425.1 and 2429.22.
• Outcome: Agency exceptions dismissed as untimely.
• Key point: The five-day mail allowance follows the 30-day period; it does not postpone when that period begins.

Full text (FLRA public release)

[ v34 p14 ]

34:0014(3)AR

The decision of the Authority follows:

34 FLRA NO. 3

FEDERAL TRADE COMMISSION, HEADQUARTERS
WASHINGTON, D.C.

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2211

0-AR-1760

ORDER DISMISSING EXCEPTIONS

September 8, 1989

The Federal Trade Commission (Agency) has filed exceptions to the award of Arbitrator Roger P. Kaplan in the above-referenced case. On July 24, 1989, the Authority directed the Agency to show cause why its exceptions should not be dismissed as untimely filed. The Agency filed a timely response to the Authority's Order. For the reasons set out below, the Agency's exceptions are untimely and must be dismissed.

In its response, the Agency contends that the Authority's practice of adding 5 days, as authorized under section 2429.22 of the Authority's Regulations, after the prescribed period for filing exceptions to the Arbitrator's award effectively extends the 30-day period and presents a conflict between the Authority's Regulations and the Federal Service Labor - Management Relations Statute (the Statute). The Agency argues that the time allowed for service by mail should be taken into account before the period prescribed for filing exceptions begins to run. Applying this interpretation to the subject case, the Agency argues that its exceptions are timely filed.

The Agency's argument cannot be sustained. Section 7122(b) of the Statute refers to the time period for filing exceptions as "beginning_on the date the award is served on the party,. .
."(emphasis added) Absent evidence to the contrary, the date of the arbitrator's award is the date the award is served. 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). Adding 5 days' mail time before calculating the prescribed time for filing exceptions would disregard the date the arbitrator's award is served and would, therefore, be contrary to the Authority's Regulations and the Statute. In addition, the 5-day allowance for service by mail in section 2429.22 of our Regulations is "added to the prescribed period(.)" It does not extend the prescribed period for filing documents but rather is an allowance for mail service.

Applying the Authority's procedure to the subject case, we calculate the due date for filing exceptions as follows: The Arbitrator's award is dated May 30, 1989. The Agency does not dispute that the award was served by mail on the same date. Therefore, under section 7122 (b) of the Statute, as amended, and section 2425.1 of the Authority's Rules, as amended, the 30-day period for filing exceptions started to run on May 30, 1989, and expired on Wednesday, June 28, 1989. Since the award was served by mail, 5 additional days must be added to the due date as provided by section 2429.22. Therefore, by operation of section 2429.22, the due date for filing exceptions was Monday, July 3, 1989. The Agency's exceptions were filed (postmarked) on July 5, 1989.

The Agency's exceptions were not timely filed. Accordingly, the Agency's exceptions are dismissed.

For the Authority.

Clyde B. Blandford, Jr.
Acting Executive Director