Navy Resale Activity Guam and AFGE Local 1689 (Authority decision, March 12, 1991)

Final FLRA decision. The Authority dismisses exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), an Authority 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 resolve an unfair labor practice.

Plain-English summary

The union challenged an arbitration award involving the Navy Resale Activity in Guam. The Authority first rescinded an earlier dismissal because the union had timely answered a show-cause order. It still dismissed the exceptions because they were mailed after the filing deadline. The award was mailed to the union on October 18, 1990, making November 21 the deadline with the extra five days for mail service; the union mailed its exceptions on November 26. The Authority rejected the union's argument that certified mail counted as personal service on the date received.

Decision snapshot

• Authority: Filing deadline under 5 C.F.R. §§ 2425.1(b), 2429.22, 2429.27(d).
• Outcome: Union exceptions dismissed as untimely.
• Key point: For an award served by certified mail, the filing clock starts when it is mailed, with the specified mail allowance.

Full text (FLRA public release)

[ v39 p1109 ]

39:1109(94)AR

The decision of the Authority follows:

39 FLRA NO. 94
39 FLRA 1109

12 MAR 1991

U.S. DEPARTMENT OF THE NAVY
NAVY RESALE ACTIVITY, GUAM
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1689 (Union)

0-AR-2025

ORDER DISMISSING EXCEPTIONS

On February 1, 1991, the Authority issued an Order dismissing the Union's exceptions to the award of Arbitrator Thomas Q. Gilson in the above-captioned case for failure to respond to the Authority's January 9, 1991 Order directing the Union to show cause why its exceptions should not be dismissed as untimely filed.

Subsequent to the issuance of the Authority's February 1, 1991 Order, the Authority received the Union's response to its January 9, 1991 Order to Show Cause. The envelope containing the Union's submission is postmarked January 25, 1991 and establishes that the Union's submission was timely filed. Therefore, the Authority's February 1, 1991 Order is rescinded. However, for the reasons stated below, the Union's exceptions are dismissed as untimely filed.

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). 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). See U.S. Department of Housing and Urban Development and American Federation of Government Employees, AFL - CIO, Local 476, 27 FLRA 852 (1987). Lee Also U.S. Department of the Air Force, Albrook Air Force Base, Panama and National Maritime Union, 39 FLRA No. 51 (1991).

The Union's submission in response to the Authority's Order to Show Cause includes a copy of the envelope in which the Arbitrator transmitted his award to the Union. The envelope shows a metered postmark of October 18, 1990. As the Arbitrator's award was served on the Union by mail on October 18, 1990, the Union's exceptions to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than November 21, 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 November 26, 1990.

The Union argues that the Arbitrator sent his award by certified mail, return receipt requested because the Arbitrator intended personal service on the Union. The Union concludes that since the award could not have been served on any person other than Mr. Cruz, the Union President, personal service was made upon the Union on October 27, 1990, the date the Union received the award. Consequently, the Union argues that the 30-day period for filing exceptions commenced on the date of receipt and the Union's exceptions should be considered timely filed.

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. mail or is delivered in person--controls. 5 C.F.R. 2429.27(d). In addition, the Union's argument that certified mail is a form of personal delivery is misplaced. Section 2429.27(b) of our Regulations provides that service of any document "shall be made by certified mail or in person." Clearly, the Authority's regulations contemplate two (2) modes of service, one by certified mail and the other by personal service. See also American Federation of State, County and Municipal Employees, Local 478 and U.S. Commission on Civil Rights 20 FLRA 164 (1985).

The Union further argues that the application of the principle of service by mail in the instant case would be "extremely unfair and unjust" to the Union since "mainland" parties are given five (5) days for service by mail and Guam parties are only provided four (4) days because Guam is geographically on the other side of the international date line and a day ahead of the continental U.S. The Union also states that mail from the U.S. does not arrive in Guam timely, and that there is considerable delay and back log of mail in Hawaii.

In Overseas Federation of Teachers. AFT, AFL - CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 366 (1988) (DODDS),:the Authority held that delay involved in overseas mailing, in and of itself, will not establish "extraordinary circumstances" within the meaning of the Authority's Rules to warrant reconsideration of an Authority Order dismissing exceptions to an arbitration award as untimely filed.

In calculating the time limit for filing exceptions to an arbitration award, the expiration date of the initial period for filing exceptions provided by section 2425.1--of the Authority's Regulations must first be determined. If an award was served by mail, the additional 5 days authorized under section 2429.22 must than be added. In the present case, the computation for determining the due date for the Union's exceptions is as follows: The Arbitrator served his award on October 18, 1990. The 30-day period for filing exceptions to the Arbitrator's award expired on November 16, 1990. Since the award was served by mail, 5 additional days must be added to the due date. Therefore, by operation of section 2429.22, the due date was November 21, 1990. Even if an additional day were added to the time provided under section 2429.22 for service by mail, consistent with the Union's argument that a day is lost because of the international date line, the due date would be November 22, 1990.

In DODDS, just as in this case, the union had a sufficient opportunity to file timely exceptions. The Union received the Arbitrator's award on October 27, 1990, and had until November 21, 1990, or 25 days, 1 in which to file timely exceptions. The Union's exceptions were filed (postmarked) on November 26, 1990.

The Union's exceptions were not filed with the Authority within the prescribed time limit. As the time limit for filing exceptions may not be extended or waived by the Authority, the Union's exceptions are dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office

FOOTNOTES

Footnote 1 If an additional day were added to the due date because of the international date line, the Union would have had 26 days to file its exceptions.