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59 FLRA No. 10

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2004
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION CENTER
DEFENSE DISTRIBUTION DEPOT
SUSQUEHANNA, PENNSYLVANIA
(Agency)

0-AR-3640

_____

DECISION

August 20, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

      This matter is before the Authority on exceptions to an award of Arbitrator George E. Marshall filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      We find that the exceptions are timely filed. The time limit for filing exceptions to an arbitration award is thirty days beginning on the date the award is served on the filing party. See 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the United States mail or is delivered in person, or in the case of facsimile transmissions, the date transmitted. See 5 C.F.R. § 2429.27(d). If the award is served by mail, five days are added to the period for filing exceptions. See 5 C.F.R. § 2429.22.

      Evidence submitted by the Union in response to an Authority order shows that although the award is dated November 19, 2002, it was not served on the Union until November 26. The Union's exceptions were filed with the Authority by certified mail on December 26, 2002.

      The Agency argues that although the award was mailed to the parties on November 26, it was also faxed to them on November 20 and, therefore, the Union's December 26 exceptions were untimely. However, the Agency's own evidence (Opposition, Exhibit 2) establishes that only a cover sheet and one page of the award were faxed to the parties on November 20. The remainder of the award, totaling another seven pages, was not faxed, but was only mailed on November 26. Additionally, the Agency's reliance on United States Small Business Administration, Washington, D.C., 38 FLRA 386 (1990) (SBA) does not provide a basis for finding the exceptions untimely because SBA concerned exceptions to an arbitrator's bench decision. The instant award is not a bench award.

      As the Union's exceptions were filed (postmarked) on December 26, 2000, the exceptions were filed timely. Accordingly, the Agency's request for the exceptions to be dismissed as untimely is denied.

      With regard to the merits of the award, under § 7122(a) of the Statute, an award is deficient if it is contrary to any law, rule, or regulation; or it is deficient on other grounds similar to those applied by federal courts in private sector labor-management relations. Upon careful consideration of the entire record in this case, and Authority precedent, the Authority concludes that the award is not deficient on the grounds raised in the exceptions and set forth in § 7122(a). See United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995) (award not deficient on ground that arbitrator exceeded his authority where excepting party does not establish that arbitrator failed to resolve an issue submitted to arbitration, disregarded specific limitations on his authority, or awarded relief to persons who were not encompassed within the grievance); AFGE, Local 1668, 50 FLRA 124, 126 (1995) (award not deficient on ground that arbitrator failed to provide a fair hearing where excepting party fails to demonstrate that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party so as to affect the fairness of the proceeding as a whole); AFGE, Local 1802, 50 FLRA 396, 399 (1995) (award not deficient as contrary to law where there is no explanation supporting such an exception and none is apparent to the Authority); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993) (award not deficient as based on a nonfact where excepting party either challenges a factual matter that the parties disputed at arbitration or fails to demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (award not deficient as failing to draw its essence from the parties' collective bargaining agreement where excepting party fails to establish that the award cannot in any rational way be derived from the agreement; is so unfounded in reason and fact and so unconnected to the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or evidences a manifest disregard of the agreement).

      Accordingly, the Union's exceptions are denied.

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