United States Customs Service, Region I, Boston and National Treasury Employees Union (Authority decision, August 30, 1984)

Final FLRA decision. The Authority dismisses exceptions to an arbitration award as untimely. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

The Customs Service challenged an arbitrator's award after asking him to clarify it. The Authority found that the agency filed its exceptions months after the deadline measured from service of the original award. The arbitrator's retention of jurisdiction for compliance questions and his later clarification did not restart the filing clock, because he did not modify the award in a way that gave rise to a new deficiency. The Authority dismissed the exceptions without reviewing their merits.

Decision snapshot

• Authority: Arbitration exception deadline under 5 U.S.C. § 7122(b).
• Outcome: Agency exceptions dismissed as untimely.
• Key point: A clarification that does not materially modify an award does not restart the deadline to file exceptions.

Full text (FLRA public release)

[ v15 p816 ]

15:0816(155)AR

The decision of the Authority follows:

15 FLRA No. 155

UNITED STATES CUSTOMS SERVICE,
REGION I, BOSTON, MASSACHUSETTS
Activity

and

NATIONAL TREASURY EMPLOYEES UNION
Union

Case No. O-AR-616

ORDER DISMISSING EXCEPTIONS

This case is before the Authority on exceptions to the award of Arbitrator Jerome Rubinstein filed by the Activity pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute and section 2425.1 of the Authority's Rules and Regulations. For the reasons stated below, it has been determined that the exceptions must be dismissed as untimely filed.

The Arbitrator's award in this case is dated January 24, 1983, and appears to have been served on the parties by mail on the same day. In the award the Arbitrator retained jurisdiction for a period of 60 days "for the purpose of supervising compliance . . . and resolving any question that might arise with respect (to the award)." The Activity submitted a request for clarification within the 60 day period asking that the Arbitrator clarify the actions necessary in order to comply with the award. On July 20, 1983, the Arbitrator responded to the Activity's request for clarification, essentially reiterating determinations set forth in his January 24, 1983, award. The Activity filed exceptions to the July 20 award with the Authority on August 15, 1983. In this regard, the Activity had previously filed exceptions to the January 24 award, which exceptions were dismissed by the Authority as untimely (11 FLRA No. 87, Case No. O-AR-516).

Under section 7122(b) of the Statute, as amended, /1/ and section 2425.1 of the Authority's Rules and Regulations, as amended, /2/ which amendments are applicable to exceptions pending or filed with the Authority on or after March 2, 1984, and under sections 2429.21 and 2429.22 of the Rules and Regulations, which are also applicable to computation of the time limit here involved, any exceptions to the Arbitrator's award in this case had to be filed with the Authority no later than the close of business on February 22, 1983. Thus, it immediately and clearly appears that the exceptions filed by the Activity on August 15, 1983, are untimely. The Activity, however, appears to take the position that its exceptions are timely since the Arbitrator retained jurisdiction for 60 days; thus, the January 24 award was not a final award and the time limit for filing did not begin to run until the clarification of July 20, 1983.

In arbitration cases that have come before the Authority, it is not uncommon for an arbitrator to have retained jurisdiction for a period of time to resolve question or problems that might arise concerning the award. However, retention for such purposes does not render an award interlocutory or extend the time limit for filing exceptions. Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA No. 28 (1984); see Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 14 FLRA No. 70, n.1 (1984). Nor does a party's request for clarification of an award and the mere possibility of modification of the award by the arbitrator render the award interlocutory. See American Federation of Government Employees, AFL-CIO, Local 1612 and U.S. Department of Justice, Bureau of Prisons, U.S. Medical Center for Federal Prisoners, Springfield, Missouri, 6 FLRA 5 (1981). The Authority has held, however, in cases in which an arbitrator, in response to a clarification request, modifies an award in such a way as to give rise to alleged deficiencies, the filing period begins with the modified award. U.S. Department of the Interior, Bureau of Land Management, Eugene District Office and National Federation of Federal Employees, Local 1911, 6 FLRA 401, 403 n.2 (1981). In this case, however, the Arbitrator did not modify his award in any way as to give rise to the deficiencies alleged in the Activity's exceptions. Indeed, the Activity predicated the instant exceptions and its exceptions to the January 24 award on substantially identical grounds.

Thus, the time limit for filing exceptions to the Arbitrator's award in this case began on the date the award was served on the parties, i.e., January 24, 1983, and expired on February 22, 1983. The exceptions filed by the Activity on August 15, 1983, are therefore untimely.

Accordingly, as the Activity's exceptions were untimely filed, they are hereby dismissed.

For the Authority.

Issued, Washington, D.C., August 30, 1984
Jan K. Bohren
Executive Director/Administrator

--------------- FOOTNOTES$ ---------------

/1/ Section 7122(b) of the Statute was amended by the Civil Service Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98 Stat. 47, 48 (1984)) to provide that the 30-day period for filing exceptions to an arbitrator's award begins on the date the award is served on the filing party.

/2/ 49 Fed.Reg. 22623 (1984).