U.S. Department of the Navy, Marine Corps Support Activity, Kansas City, Missouri and American Federation of Government Employees, Local 2904 (Authority decision, September 20, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing exceptions to 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 the order involves an unfair labor practice under 5 U.S.C. § 7116. This order dismisses the exceptions on filing grounds and does not decide the merits of the award.

Plain-English summary

The union filed exceptions to an arbitration award involving the Marine Corps Support Activity in Kansas City. The Authority ordered the union to correct deficiencies in its filing by July 24, 1991. The union said it mailed one response on the deadline, but the package was postmarked July 25 and it supplied no receipt proving earlier filing. A second package was mailed July 26, and the union also served the agency after the deadline. The Authority dismissed the exceptions without deciding the arbitration issues.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122 and proof of service under 5 C.F.R. § 2429.27(b).
• Outcome: Union's exceptions dismissed for failure to prove a timely cure and timely service.
• Key point: An unsupported statement that a response was mailed by the deadline did not establish timely filing.

Full text (FLRA public release)

[ v42 p264 ]
42:0264(21)AR

The decision of the Authority follows:

42 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY
MARINE CORPS SUPPORT ACTIVITY
KANSAS CITY, MISSOURI
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2904
(Union)

0-AR-2132

ORDER DISMISSING EXCEPTIONS

September 20, 1991

On August 16, 1991, the Authority issued an Order directing the Union to show cause why its exceptions to the award of Arbitrator Frank J. Murphy in the above-captioned case should not be dismissed for failure to timely respond to the Authority's July 12, l991, Order. The Union filed a timely response to the Authority's August 16, 1991 Order. However, for the reasons set out below, the Union's petition for review must be dismissed.

On July 12, 1991, the Authority issued an Order directing the Union to cure deficiencies in its exceptions by providing the Authority with certain information. The Authority's July 12, l991 Order stated that the Union's submission must be filed by July 24, l991, and that failure to comply with the Order may result in dismissal of the Union's exceptions. The Union's response was filed in two separate packages. The first package was filed (postmarked) on July 25, 1991, by first class mail. The second package was filed (postmarked) on July 26, 1991, by certified mail.

The Union asserts that although the first package is postmarked July 25, its response was mailed on the evening of July 24. The Union did not provide a postal receipt to support its assertion, however. The Union confirms, with

copies of postal receipts, that the second package was mailed on July 26, 1991, by certified mail.

Section 2429.27(b) of the Authority's Regulations provides that a return post office receipt or other written receipt executed by the party or person served shall constitute proof of service. The Union's assertion that it filed its response with the Post Office on July 24, l991, does not constitute proof of service pursuant to section 2429.27(b). See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877 (1990).

The Union has failed to provide proof, within the meaning of the Authority's Regulations, to support its assertion that it timely filed its response on July 24, l991.*/

Accordingly, as the Union has failed to timely respond to the Authority's July 12, l991 Order, the Union's exceptions are dismissed.

For the Authority.

________
Alicia N. Columna Director,
Case
Control Office

*/ In addition, the Union did not comply with the Authority's Order to serve the Agency with a copy of its exceptions until July 26, l991, 2 days after the deadline established in the Authority's Order. See Postal receipts; Union response dated 22, August, 1991.