I can’t take a bit of credit for the following. One of best in the business prepared this heads-up for practitioners in his Agency. I pass it along to you with much thanks to him for his efforts.
The Federal Labor Relations Authority (FLRA) has just issued its final rules on arbitration exceptions.
The rules go into effect October 1, 2010 (5 CFR 2425.1)
In computing 30-day time limit for filing an exception, the first day counted is the day after the award was served, not the day of service (2425.2(b))
The parties need to determine the method of service of the arbitrator’s award (mail, fax, e-mail, etc). That agreed to method will be controlling for purposes of calculating the time limit for filing the exception. If there is no agreement, then the method used by the arbitrator is controlling for calculating the time limit. (2425.2(c))
The date of service (which is used for determining when an exception has to be filed) depends on the method of service (2425.2(c)(1-5):
If by mail, date of service is the postmark date, but if no visible postmark, then it is the date of the award. Five days are added to the 30 days for timely filing of the exception.
If by commercial delivery, date of service is date deposited with the commercial delivery service, or if date not indicated, then the date of the award. Five days are added.
If by e-mail or fax, date of service is the date of transmission. Five days are not added.
If by personal delivery, date of service is date of delivery. Five days are not added.
If by more than one method, then the first method of service is controlling for determining the date of service. If served by e-mail, fax, or personal delivery and by mail or commercial delivery on the same day, five days will not be added.
In an exception, provide the arbitrator’s e-mail address or fax number, if authorized for use by the arbitrator. (2425.4(a)(6)
Exceptions may not rely on any evidence, factual assertions, arguments, requested remedies, or challenges to an awarded remedy that could have been, but were not, presented to the arbitrator. (2425.4(c)
Exceptions may be filed on optional forms provided by the Authority. ((2425.4(d)
An opposition can be filed on an optional form provided by the Authority. The opposition should address any assertions from the exceptions that the opposing party disputes, including any assertions that any evidence, factual assertions, arguments, requested remedies, or challenges to an awarded remedy were raised before the arbitrator (2425.5)
The new rules provide more detail as to the bases for filing an exception, e.g., The arbitrator exceeded his authority and identifies those actions for which it does not have authority to consider an exception, e.g., A removal for more than fourteen days. (2425.6)
An excepting party can request an expedited decision from the Authority. An expedited decision will resolve the exception without a full explanation of the background, arbitration award, parties’ arguments, and analysis of those arguments. (2425.7) The opposition should state whether it supports or opposes an expedited decision and provide supporting arguments. (2425.5) Even absent a request, the Authority may issue an expedited decision. (2425.7)
The parties may request assistance from the Authority’s Collaboration and Alternative Dispute Resolution (CADR) Program. The request can come before or after an opposition has been filed. The Authority will toll the time limit for filing an opposition if the request for CADR comes prior to the filing of the opposition. (2425.8)
The Authority can request the parties to clarify the record when doing so would aid in the disposition of the matter. To clarify the record, the Authority can direct the parties to provide additional information; meet with the parties; direct the parties to provide oral arguments; and take any other appropriate action. (2425.9)
The Authority makes clear that it will not consider any evidence, factual assertions, arguments, requested remedies, or challenges to an awarded remedy that could have been, but were not, presented before the arbitrator. (2429.5)
What is particularly relevant for agency practitioners is the need to raise all potential arguments to the arbitrator since failing to raise an argument, or a challenge to what the unions are arguing, or seeking as a remedy, will limit the arguments that can be raised in any exception.”
I would like to second the writer’s final point on raising issues before the arbitrator. FLRA’s policy on this is ya snooze ya lose. While I’m critical of a policy that potentially hears but allows statutory violations, it is what it is so ignore the above at your peril. BG