34:0150(33)AR - AU.S. DEPARTMENT OF THE AIR FORCE SCOTT AFB, ILLINOIS and NAGE LOCAL R-7-23 -- 1990 FLRAdec AR



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34:0150(33)AR
The decision of the Authority follows:


  34 FLRA NO. 33



               U.S. DEPARTMENT OF THE AIR FORCE
                SCOTT AIR FORCE BASE, ILLINOIS

                              and

         NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
                         LOCAL R-7-23

                           0-AR-1563

			   DECISION

     			January 5, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Neil N. Bernstein filed by the National
Association of Government Employees (the Union) under section
7122(a) of the Federal Service Labor - Management Relations
Statute (the Statute) and part 2425 of the Authority's Rules and
Regulations. Scott Air Force Base (the Agency) did not file an
opposition to the exceptions.

     A grievance was filed contesting a 3-day suspension of the
grievant for insubordinate defiance of authority and a refusal to
comply with proper orders from his supervisor. The Arbitrator
dismissed the grievance because the Union had not timely placed
the issues in dispute before the Arbitrator, as required by the
parties' collective bargaining agreement.

     For the reasons stated below, we deny the Union's
exceptions.

II. Background and Arbitrator's Award

     On December 31, 1986, the Agency issued a 3-day suspension
to the grievant for insubordinate defiance of authority
and refusal to comply with proper orders from his supervisor. The
grievance was not settled and the parties proceeded to
arbitration.

     At the arbitration hearing, the Agency moved to dismiss the
case because the Union had failed to comply with the time limits
provided for in Article XII, Section 11 of the parties'
collective bargaining agreement. Article XII, Section 11 provides
as follows:

     The party requesting arbitration must place the issue(s) in
dispute before the Arbitrator not sooner than fifteen (15) days
and not later than thirty (30)  days after the parties receive a
listing of available dates from the (A)rbitrator, unless the
parties mutually agree otherwise. With respect to the
above-referenced 15 to 30  day time frame, absent mutual
agreement, the last available date will be selected. If the
(A)rbitrator's first available date for a hearing falls outside
this thirty (30)  day period, then that date shall be the date of
the hearing, unless the parties agree otherwise. Failure by a
party to so present it's (sic) grievance for arbitration will
result in dismissal of that party's grievance with no right to
renew it.

     Award at 3-4.

     The Arbitrator wrote the parties on June 15, 1987, advising
them of his availability on July 27 or August 28, 1987. Neither
party responded. On August 31, 1987, the Agency notified the
Union that it considered this grievance (and five others) to have
been dismissed for failure to comply with Article XII, Section 11
of the parties' agreement. Subsequently, the Arbitrator wrote to
the parties and inquired as to the status of the proceedings in
the case. A date for the proceeding was finally agreed upon and
the arbitration hearing was held on January 20, 1988.

     The Arbitrator found that the uncontradicted evidence
demonstrated that the Union had not complied with the timeliness
standards set forth in Article XII, Section 11 of the collective
bargaining agreement. The Arbitrator rejected the Union's
arguments that (1) the time limits were unrealistic and (2) the
Activity had given no indication prior to August 31, 1987, that
it would insist on compliance with the time frames set forth in
the collective bargaining agreement. The Arbitrator also rejected
the Union's  argument that a decision by another
arbitrator rejecting the Agency's claim that another grievance
should be dismissed for failure to comply with the time limits of
Article XII, Section 11 was res judicata and binding in this
case.

     The Arbitrator found that the language of Article XII,
Section 11 was "clear, precise, and unambiguous," and that there
was no mutual agreement to waive its provisions. Award at 5. He
also found that there is no requirement for the Agency to notify
the Union of its intention to comply with the negotiated
agreement. Finally, the Arbitrator concluded that the prior
arbitrator's decision was not res judicata because the prior
arbitrator had "clearly ignored the agreement in favor of 'his
own brand of industrial justice.'" Award at 6. Consequently, the
Arbitrator dismissed the grievance.

III. The Union's Exceptions

     The Union contends that the Arbitrator's award is deficient
because it is contrary to law. In support of its position, the
Union argues that the Arbitrator must find a grievance arbitrable
if there is any interpretation of the contract that will allow
such a finding. The Union also argues that a decision of a prior
arbitrator interpreting the time limits of Article XII, Section
11 is res judicata on the issue of whether or not the instant
case is arbitrable.

     The Union further contends that the Arbitrator's award is
deficient because it is based on a nonfact. The Union argues that
the Arbitrator concluded that there was no evidence of any mutual
agreement to waive the timeliness provisions of Article XII,
Section 11. In the Union's view, the Agency previous failure to
invoke the requirements of Article XII, Section 11 constituted
silent consent to waive the time limits provided for in that
section of the parties' agreement.

IV. Analysis and Conclusion

     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
regulation or that the award is deficient on other grounds
similar to those applied by the Federal courts in private sector
labor relations cases. 

     The Union's exceptions constitute nothing more than
disagreement with the Arbitrator's determination on the
procedural arbitrability of the grievance. That is, the Union's
claim that the grievance is arbitrable under the contract
language constitutes simple disagreement with the Arbitrator's
conclusion that the parties' agreement clearly required adherence
to the time limits established by Article XII, Section 11.
Further, the Union's claim that the Agency silently consented to
waiving the time limits amounts to mere disagreement with the
Arbitrator's conclusion that there was no mutual agreement to
waive the contractual time limits. These exceptions provide no
basis for finding the award deficient. See, for example,
Department of the Air Force, Warner Robins Air Force Base and
American Federation of Government Employees, Local 987, 32 FL