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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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 FLRA 1081 (1988) (an exception which simply disagrees with an arbitrator's determination on the procedural arbitrability of a grievance provides no basis for finding the award deficient). In addition, as to the Union's contention that the Arbitrator should be bound by a prior arbitration award interpreting the time limitations of Article XII, Section 11, we note that an arbitrator's award in one case is without precedential effect on the outcome of another case. See, for example, Department of the Army, Headquarters, U.S. Army Materiel Command and National Federation of Federal Employees, Local 1332, 32 FLRA 961 (1988). As the Union has not established that the Arbitrator's award is deficient, the exceptions must be denied. V. Decision The Union's exceptions are denied.