32:1293(177)AR - - GSA, Region 4, Kennedy Space Center, FL and AFGE Council 236 - - 1988 FLRAdec AR - - v32 p1293
[ v32 p1293 ]
The decision of the Authority follows:
32 FLRA No. 177
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL SERVICES ADMINISTRATION
REGION 4, KENNEDY SPACE CENTER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236
Case No. 0-AR-1527
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Ferrin Y. Mathews. The issues presented were: (1) whether the grievance was timely filed and, therefore, arbitrable; and (2) whether employees were entitled to environmental differential pay for exposure to asbestos. The Arbitrator concluded that the grievance had not been filed timely and was not arbitrable. Accordingly, the Arbitrator dismissed the grievance and made no decision concerning the entitlement to environmental differential pay.
The Union filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union claims that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. The Agency filed an opposition to the Union's exceptions.
For the reasons set forth below, we find that the Union has failed to demonstrate that the award is contrary to law, regulation or the parties' agreement. Therefore, we deny the exceptions.
II. Background and Arbitrator's Award
On September 24, 1986, the Union notified the Agency by letter that under the terms of the parties' agreement, the Union intended to pursue environmental differential pay for employees who were exposed to asbestos. The Agency responded on April 27, 1987. Among other things, the Agency indicated that there was no evidence to justify the payment of environmental differential pay.
On May 18, 1987, the Union filed a group grievance claiming that before December 11, 1984, certain employees were exposed to hazardous asbestos levels which warranted environmental differential pay. The Union requested retroactive environmental differential pay and medical examinations for all affected employees as well as a training class for unit employees concerning asbestos. The Agency responded on June 3, 1987, denying the grievance on the basis that it was filed untimely.
The issue before the Arbitrator, as stipulated by the parties, was:
Whether the Grievance is procedurally arbitrable from a timeliness standpoint?
Award at 5.
As to the merits of the dispute, the parties agreed to the following statement of the issue:
Were employees, who were employed at the facility prior to December 11, 1984, exposed to airborne asbestos fibers as described in Subchapter S8-7 and Appendix J and are they entitled to differential pay as defined by that FPM Supplement 532-1, S8-7 and Appendix J, and under other applicable laws and regulations, including Government wide regulations and the National Negotiated Agreement?
Award at 6.
The Agency argued before the Arbitrator that the grievance was filed untimely under the parties' agreement. The agreement provides that the Union shall file a grievance within 30 days of the incident giving rise to the grievance or within 30 days after the Union becomes aware of or should reasonably have become aware of the matter out of which the grievance arises. The Agency also argued that as early as December 1985, the Union knew or should have known about employee exposure to asbestos. At that time, according to the Agency, various Agency instructions relating to asbestos were issued, new work procedures were instituted and employees were aware they were working with asbestos, as evidenced by their testimony at the arbitration hearing.
The Union argued that it could not have filed a grievance until the Agency denied the claim for retroactive pay on April 27, 1987. Therefore, the Union claimed that the grievance which was filed on May 18, 1987, was filed timely.
The parties also raised arguments in support of their respective positions on the merits of the grievance.
The Arbitrator addressed, at great length, the timeliness of the grievance and concluded that it had not been filed timely. The Arbitrator found that the dispute in this case involved the Agency's denial of the existence of a work situation warranting coverage under provisions of the Federal Personnel Manual (FPM) Supplement 532-1, Subchapter S8-7, Appendix J. Award at 46. The Arbitrator concluded that when the Union believed that a local work situation warranted payment of environmental differential pay under the FPM, the Union was required to notify the Agency under provisions of the parties' agreement. The Arbitrator found that the Union was not required to delay the filing of a grievance until the Agency responded to the Union's notification. Award at 47.
The Arbitrator interpreted the parties' agreement and found that in its September 24, 1986 letter, the Union established its belief that a local work situation warranted coverage under the provisions of the FPM. Award at 49. Therefore, the Arbitrator found that the incident giving rise to the grievance occurred on September 24, 1986--the date on which the Union notified the Agency of its belief that environmental differential pay was warranted. Id. The Arbitrator found that within 30 days thereafter, the Union was required to raise the grievance in writing. Id. The grievance was not filed until May 18, 1987, which was more than 30 days after September 24, 1986. Therefore, the Arbitrator concluded that the grievance was not filed timely. Id.
In view of his finding that the grievance was not filed timely, the Arbitrator found it unnecessary to determine whether the grievance was also untimely because the Union sought retroactive payment of environmental differential pay for a period of "at least one and three-fourths years before the [g]rievance was filed." Award at 53. The Arbitrator also found it unnecessary to decide the merits of the grievance, although the Arbitrator discussed the merits. Id.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award fails to draw its essence from the parties' agreement. The Union claims that the issue involved in the grievance is backpay and that it acted appropriately in raising the issue with management at the time that it did. The Union claims that until the Agency established its position regarding backpay, there was no basis on which the Union could file a grievance. The Union further argues that the Arbitrator co-mingled findings on the merits of the grievance with the issue of backpay and incorrectly decided the arbitrability question. Therefore, the Union requests that the Authority remand the case to the Arbitrator for a decision on the merits of the payment of backpay.
B. Agency's Opposition
The Agency argues, as it argued before the Arbitrator, that the grievance was filed untimely. Additionally, with regard to the Union's exceptions, the Agency argues that they present no basis for finding the award deficient.
IV. Analysis and Conclusions
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule or regulations or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union is expressing disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the grievance was filed timely. A party's disagreement with an arbitrator's determination as to the procedural arbitrability of a grievance provides no basis for finding an award deficient. See, for example, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 30 FLRA 1151 (1988) (an exception which simply disagrees with an arbitrator's determination on the procedural arbitrability of the grievance provides no basis for finding the award deficient). See also American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA No. 162 (1988) in which we stated that the denial of exceptions which merely disagree with an arbitrator's determination on the procedural arbitrability of a grievance is consistent with decisions of Federal courts in private sector labor relations cases.
Moreover, to the extent that the Union claims that the award fails to draw its essence from the parties' agreement, we find that the Union has not demonstrated that the award is deficient under the test set forth in Pension Benefit Guaranty Corporation and National Treasury Employees Union, Chapter 211, 32 FLRA 141 (1988). In that case, we held that in order for an award to be found deficient on the basis that it does not draw its essence from the agreement, the party m