U.S. Department of the Interior, Bureau of Indian Affairs, Billings Area Office and National Federation of Federal Employees, Local 478 (Authority decision, November 21, 1990)

Final FLRA decision. The Authority dismisses the agency's exceptions to an arbitration award as untimely. This is an order concerning an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

The Bureau of Indian Affairs' Billings office filed exceptions to an arbitration award after the filing deadline. It could not prove a later service date for the award and said an Authority staff member had given it incorrect deadline advice. The Authority acknowledged the mistake but held that its rules did not permit it to extend or waive the filing period. It dismissed the exceptions without considering the arbitration merits.

Decision snapshot

• Authority: Arbitration exception deadline under 5 C.F.R. § 2425.1(b); no extension under § 2429.23(d).
• Outcome: Agency exceptions dismissed as untimely.
• Key point: Incorrect deadline advice from Authority staff could not extend a filing limit the rules made nonwaivable.

Full text (FLRA public release)

[ v38 p256 ]

38:0256(27)AR

The decision of the Authority follows:

38 FLRA NO. 27
38 FLRA 256

21 NOV 1990

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
BILLINGS AREA OFFICE
BILLINGS, MONTANA
(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 478 (Union)

0-AR-2001

ORDER TO DISMISS

November 21, 1990

The Agency has filed exceptions to the award of Arbitrator Roger Tilbury in the above-captioned case. On October 11, 1990, the Authority issued an Order directing 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.

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 August 21, 1990, absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. Therefore, an exception to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than September 24, 1990, in order to be considered timely filed. 5 C.F.R. 2425.1(b), 2429.21(b) and 2429.22.

In its response to the Order to Show Cause the Union states that the agency is unable to provide proof of service of the Arbitrator's award "since the envelope bearing the postmark was not retained." The agency argues that it relied upon the "advice and guidance provided by an agent of the Federal Labor Relations Authority who determined the date of timely filing ... and complied with that date by personal delivery." The Agency contends that its "reliance upon the misinformation provided constitutes extraordinary and equitable grounds" to warrant acceptance of the Agency's exceptions.

The advice provided by the Authority's agent is inexcusable, and the Authority does not condone it. Although the circumstances of this case are regrettable, the time limit for filing an exception to an Arbitrator's award may not be extended or waived by the Authority. 5 C.F.R. 2429.23(d). See U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 34 FLRA 309 (1990), and U.S. Department of Housing and Urban Development and American Federation of Government Employees, AFL - CIO, Local 476, 27 FLRA 852, 854 (1987). The Agency is unable to provide proof of service of the Arbitrator's award. Absent evidence to the contrary, the Authority must presume that the Arbitrator's award was served on August 21, 1990. Therefore, the Agency's exceptions filed on October 1, 1990 were not timely filed.

Accordingly, the Agency's exceptions are dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office