U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12 (Authority decision, April 30, 1990)

Final FLRA decision. The Authority dismissed the union's exceptions to an arbitration award as untimely. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

AFGE Local 12 filed exceptions to an arbitration award dated February 14, 1990. Under the Authority's service date presumption and mail extension, the filing deadline was March 20, but the union's exceptions were postmarked March 22. The union showed that its office received the award on February 20 and argued that it could not have been mailed six days earlier. The Authority held that receipt did not control and that the union had not provided evidence overcoming the presumed service date. It dismissed the exceptions as late.

Decision snapshot

• Authority: 5 C.F.R. §§ 2425.1(b), 2429.22, and 2429.27(d).
• Outcome: Union's exceptions dismissed as untimely.
• Key point: The filing period ran from service of the award, not its receipt, and speculation did not rebut the presumed service date.

Full text (FLRA public release)

[ v35 p920 ]
35:0920(95)AR

The decision of the Authority follows:

35 FLRA NO. 95

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES

LOCAL 12

(Union)

0-AR-1893

ORDER DISMISSING EXCEPTIONS

April 30, 1990

The Union has filed exceptions to the award of Arbitrator Roger

Kaplan in the above-captioned case. On April 5, 1990, the

Authority issued an order directing the Union to Show Cause why

its exceptions should not be dismissed as untimely filed. The

Union filed a timely response to the Authority's Order. The

Agency filed an opposition to the Union's response. For the

reasons set out below, the Union'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 of the

award is the date that the matter served 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 Arbitrator's award is dated February 14, 1990.
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 March 20, 1990, in order to be considered timely. 5 C.F.R.

2425.1(b), 2429.21(b) and 2429.22. The Union's exceptions were

filed (postmarked) on March 22, 1990.

In its response to the Authority's Order, the
Union contends

that the Arbitrator's award was received at the Union office on

February 20, 1990 as evidenced by the Union's mail log. The Union

did not provide any other documentation to establish date of

service. The union argues, however, that the Arbitrator's award

could not have been served on February 14, 1990 since it was not

received until February 20, 1990 and both parties are located in

Washington, D.C.

It is well established that the date of receipt of
the award

is not controlling in the determination of the timeliness of

exceptions. U.S. Department of Health and Human Services, Federal

Employees, Council of Consolidated Social Security Administration

Locals 15 FLRA 1055 (1984). Instead, the date of service of the

award -- the date that the matter served is deposited in the U.S.

mall or is delivered in person -- controls. 5 C.F.R. 2429.27(d).

The Union acknowledges that it did not retain the envelope in

which the Arbitrator's award was mailed.

In these circumstances, noting particularly that
the Union's

assertion that "(i)t does not seem likely" that the award was

served on February 14, 1990 is speculative, it is concluded that

the Union's exceptions were not timely filed. Accordingly, the

Union's exceptions are dismissed.

For the Authority.

Alicia N. Columna

Director, Case Control Office

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