U.S. Department of Agriculture, Food Safety and Quality Service (Activity) and National Joint Council of Food Inspection Locals, AFGE, AFL-CIO (Union)

 



[ v06 p278 ]
06:0278(48)AR
The decision of the Authority follows:


 6 FLRA No. 48
 
 U.S. DEPARTMENT OF AGRICULTURE,
 FOOD SAFETY AND QUALITY SERVICE
 Activity
 
 and
 
 NATIONAL JOINT COUNCIL OF
 FOOD INSPECTION LOCALS,
 AFGE, AFL-CIO
 Union
 
                                            Case No. O-AR-171
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR GEO. SAVAGE KING FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT FILED A WRITTEN GRIEVANCE
 IN JUNE 1980 CLAIMING THAT DURING A REASSIGNMENT IN OCTOBER 1977 HE HAD
 BEEN DENIED CERTAIN "BUMPING RIGHTS" GUARANTEED HIM BY CHAPTER 351 OF
 THE FEDERAL PERSONNEL MANUAL AND ARTICLE XXIII, SECTION (B)(2) OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THE ACTIVITY DENIED THE
 GRIEVANCE, MAINTAINING THAT IT WAS NOT TIMELY FILED UNDER ARTICLE XXXII,
 SECTION F OF THE PARTIES' AGREEMENT WHICH STATES:
 
    GRIEVANCES MUST BE PRESENTED WITHIN THIRTY (30) CALENDAR DAYS FROM
 THE DATE THE EMPLOYEE OR
 
    THE UNION BECAME AWARE OF THE ACTIONS WHICH FORM THE BASIS FOR THE
 GRIEVANCE.
 
    WHEN THE GRIEVANCE WAS ADVANCED TO ARBITRATION, THE PARTIES
 STIPULATED THE ISSUE BEFORE THE ARBITRATOR TO BE:
 
    DID THE AGENCY VIOLATE THE PROVISIONS OF ARTICLE XXXII, SECTION F OF
 THE NATIONAL BASIC
 
    AGREEMENT, DATED MARCH 25, 1980, BY REJECTING MR. IVEY W.  HURST'S
 GRIEVANCE, DATED JUNE 8,
 
    1980?
 
    THUS THE SOLE ISSUE IN THIS DISPUTE WAS WHETHER THE SUBJECT GRIEVANCE
 HAD BEEN TIMELY FILED UNDER ARTICLE XXXII, SECTION F OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.
 
    AFTER SPEAKING BRIEFLY TO THE MERITS OF THE GRIEVANCE, THE ARBITRATOR
 DETERMINED THAT IT WAS NOT FILED IN A TIMELY MANNER SINCE THE ACTION
 WHICH PRECIPITATED THE GRIEVANT'S CLAIM (I.E. HIS OCTOBER 1977
 REASSIGNMENT) OCCURRED MORE THAN TWO AND ONE-HALF YEARS PRIOR TO THE
 JUNE 1980 FILING OF THE GRIEVANCE.  ACCORDINGLY, IN HIS AWARD THE
 ARBITRATOR CONCLUDED THAT THE GRIEVANCE "WAS NOT TIMELY AND THEREFORE IT
 IS DISMISSED."
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).
 
    IN ITS EXCEPTION THE UNION ASSERTS THAT THE ARBITRATOR'S AWARD IS IN
 DIRECT CONFLICT WITH ARTICLE XXXII, SECTION F OF THE AGREEMENT.  THE
 THRUST OF THAT CONTENTION IS IDENTICAL TO THE ARGUMENT THE UNION MADE
 BEFORE, AND HAD REJECTED BY, THE ARBITRATOR, I.E., THAT THE CONTRACTUAL
 30 DAY TIME LIMIT FOR FILING THE GRIEVANCE IN THIS CASE DID NOT BEGIN
 UNTIL MAY 22, 1980, WHEN THE GRIEVANT CLAIMS TO HAVE FIRST BECOME AWARE
 OF THE PURPORTED IRREGULARITY IN HIS OCTOBER 1977 REASSIGNMENT.
 
    IT IS WELL ESTABLISHED THAT QUESTIONS OF WHETHER THERE HAS BEEN
 COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF A NEGOTIATED GRIEVANCE
 PROCEDURE ARE QUESTIONS FOR RESOLUTION BY AN ARBITRATOR.  UNITED STATES
 ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA, GEORGIA AND
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1907, 5 FLRA NO.
 36(1981).  THE UNION'S EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS AND CONCLUSIONS REGARDING THE PROCEDURAL
 ARBITRABILITY OF THE GRIEVANCE.  SUCH DISAGREEMENT DOES NOT PROVIDE A
 BASIS FOR FINDING AN ARBITRATION AWARD DEFICIENT UNDER 5 U.S.C. 7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.