Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO (Authority decision, June 27, 1984)

Final FLRA decision. The Authority dismissed both parties' exceptions to an arbitration award as untimely under 5 U.S.C. § 7122(b). 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.

Plain-English summary

Portsmouth Naval Shipyard and the Federal Employees Metal Trades Council each challenged an arbitrator's July 28, 1983 award. The arbitrator had kept jurisdiction for 90 days to resolve questions and later responded to clarification requests without changing the award in a way that raised the claimed deficiencies. The Authority held that retaining jurisdiction and receiving clarification requests did not extend the deadline for exceptions. Both parties had to file by August 31, 1983, but the shipyard filed in October and the union filed in November. The Authority dismissed both sets of exceptions without reaching their merits.

Decision snapshot

• Authority: Deadline for arbitration exceptions under 5 U.S.C. § 7122(b).
• Outcome: Both parties' exceptions dismissed as untimely.
• Key point: An arbitrator's retained jurisdiction and clarifications that did not materially modify the award did not restart the filing period.

Full text (FLRA public release)

[ v15 p181 ]

15:0181(28)AR

The decision of the Authority follows:

15 FLRA No. 28

PORTSMOUTH NAVAL SHIPYARD
Activity

and

FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
Union

Case No. O-AR-657

ORDER DISMISSING EXCEPTIONS

This case is before the Authority on exceptions to the award of Arbitrator John P. McCrory separately filed on behalf of the Activity and the Union 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 of both parties must be dismissed as untimely filed.

The Arbitrator's award in this case is dated July 28, 1983, and appears to have been served on the parties by mail on the same date. In the award, the Arbitrator retained jurisdiction "for a period of 90 days to resolve any issue which may arise with respect to this award." The Activity submitted two requests for clarification and the Union submitted one such request to the Arbitrator within the 90-day period. On October 21, 1983, while those requests were pending before the Arbitrator, the Activity filed its exceptions to the award with the Authority. On October 25 and 26, 1983, the Arbitrator responded to the parties' requests for clarification, essentially reiterating determinations set forth in his July 28 award. The Union filed its exceptions to that award with the Authority on November 23, 1983. The Activity renewed its exceptions by submissions of November 9 and 25, 1983.

Under section 7122(b) of the Statute, as amended, /1/ and section 2425.1(b) of the Authority's Rules and Regulations, as amended, /2/ which amendments are applicable to exceptions to arbitration awards 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 of July 28 had to be filed with the Authority by the close of business on August 31, 1983. Thus, it immediately and clearly appears that the exceptions filed by the Activity on October 21, 1983, and by the Union on November 23, 1983, are untimely. Indeed, the Union admits as much in its exceptions, advising the Authority that it was only filing in the event the Authority determined that the time limit had not expired. The Activity, however, appears to take the position that its exceptions are timely because the Arbitrator retained jurisdiction of the case for 90 days and the time limit for filing exceptions did not begin to run at least until the expiration of the retention period.

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 questions or problems that might arise concerning the award. However, retention for such purpose does not render an award interlocutory or extend the time limit for filing exceptions. /3/ 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. /4/ The Authority has, however, held in the particular circumstances of the case where an arbitrator, in response to a clarification request, modifies the award in such a way as to give rise to alleged deficiencies, the filing period begins with the modified award. /5/ In this case, however, the Arbitrator did not modify his award in any way as to give rise to the deficiencies alleged in the parties' exceptions. Indeed, the Activity, in its submissions of November 9 and 25, 1983, states that the Arbitrator's responses to the parties' requests did not affect the basis upon which the Activity had predicated its October 21, 1983, exceptions.

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., July 28, 1983, and expired on August 31, 1983. The exceptions filed by the Activity and the Union therefore are untimely.

Accordingly, the Activity's and Union's exceptions are hereby dismissed.

For the Authority.

Issued, Washington, D.C., June 27, 1984
Harold D. Kessler, Director, Case
Management

--------------- 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 time limit 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).

/3/ See, Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 14 FLRA No. 70, n.1 (1984).

/4/ See, e.g., 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).

/5/ 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).