American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Command, McClellan Air Force Base, California (Authority decision, July 31, 1992)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. 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. The Authority dismisses the exceptions as untimely.

Plain-English summary

AFGE Local 1857 challenged an arbitration award involving McClellan Air Force Base. The award was dated May 12, 1992, and the union mailed its exceptions on June 17. Under the Authority's filing rules, the deadline was June 15 if the award was mailed on its date. The union disputed that presumed mailing date but could not provide the envelope or other proof of a later service date. The Authority applied its usual presumption and dismissed the exceptions because it could not extend or waive the filing deadline.

Decision snapshot

• Authority: 5 C.F.R. §§ 2425.1(b) and 2429.22.
• Outcome: Arbitration exceptions dismissed as untimely; the award remains in place.
• Key point: Without evidence of a later service date, the date on an arbitration award is presumed to be its service date for the exception deadline.

Full text (FLRA public release)

[ v45 p794 ]

45:0794(70)AR

The decision of the Authority follows:

45 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

AIR LOGISTICS COMMAND

MCCLELLAN AIR FORCE BASE, CALIFORNIA

(Agency)

0-AR-2302

ORDER DISMISSING EXCEPTIONS

July 31, 1992

The Union has filed exceptions to the award of Arbitrator William H. Shea in the above-captioned case. On June 29, 1992, 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 to show cause. The Agency has filed an opposition to the Union's exceptions. For the reasons set forth below, the Union's exceptions 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 May 12, 1992. 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 June 15, 1992, 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 June 17, 1992.

The Authority's June 29, 1992 Order to Show Cause directed the Union to provide proof of service of the Arbitrator's award. The Order stated that the Union could submit a copy of the envelope in which the award was mailed and on which the postmark is evident. In its response to the Authority's Order, the Union states that it does not have the envelope in which the Arbitrator mailed his award to the Union.

The Union asserts that the Authority's presumption is erroneous that the date of the award in the above-captioned case, May 12, 1992, is the date the award was deposited in the U.S. mail. The Union argues that because the date of service of the Arbitrator's award on the Union is unknown, the Authority should apply the presumption found in the Authority's Regulations concerning the filing of documents with the Authority.*/

The Union has provided no compelling reasons for the Authority to depart from its well established presumption that absent evidence to the contrary, the date of an arbitration award is presumed to be the date of service of the award. See, for example, U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 40 FLRA 1236, 1241 (1991); and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 326 (1991). The Authority's June 29, 1992 Order to Show Cause provided the Union with an opportunity to rebut the presumption by providing proof of service of the Arbitrator's award on the Union. The Union has failed to provide such proof.

Therefore, as Union's exceptions were not filed within the prescribed time limit, and 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:
(If blank, the decision does not
have footnotes.)

*/ Under Section 2429.21(b) of the Authority's Regulations, if no postmark is evident on a mailing to the Authority, the filing is presumed to have been mailed 5 days prior to receipt by the Authority. 5 C.F.R. § 2429.21(b). While Section 2429.21(b) defines the date of filing of documents with the Authority, it has no application for defining the date of service of documents between parties, or the date of service by an arbitrator of his or her award on the parties.