[ 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Authority's February 1, 1991 Order is rescinded.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.