34:0166(37)AR - U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, LEAVENWORTH, KANSAS and AFGE, LOCAL 85 -- 1990 FLRAdec AR



[ v34 p166 ]
34:0166(37)AR
The decision of the Authority follows:


 34 FLRA NO. 37



              U.S. DEPARTMENT OF VETERANS AFFAIRS
                        MEDICAL CENTER
                      LEAVENWORTH, KANSAS

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                            LOCAL 85

                           0-AR-1611

			   DECISION

     			January 9, 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 Robert G. Bailey. The American Federation of
Government Employees, Local 85 (the Union) filed a grievance
alleging that the Veterans Administration Medical Center,
Leavenworth, Kansas (the Agency) did not properly notify the
grievant of the cancellation of a vacancy notice. The Union
requested that the Arbitrator sustain the grievance, asserting
that the Agency did not respond timely to the grievance as
required under the agreement. The Arbitrator denied the
grievance.

     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 Agency did not file an opposition to the Union's
exceptions.

     For the reasons discussed below, we find that the Union's
exceptions provide no basis for finding the award deficient.
Therefore, we will deny the Union's exceptions. 

II. Procedural Matter

     Although the Agency did not file an opposition to the
Union's exceptions, the Agency filed a letter, dated September
29, 1988, in which it asserted that the Union's exceptions were
untimely filed. Under section 7122(b) of the Statute, the time
limit for filing an exception to an arbitration award is 30  days
beginning on the date the award is served on the filing party.
The date of service is the date the exceptions were deposited in
the U.S. mail or delivered in person. 5 C.F.R. 2429.27(d).

     The Arbitrator's award is dated August 8, 1988. Based on
this date, the Union's exceptions had to be either postmarked by
the U.S. Postal Service or received in person at the Authority no
later than September 12, 1988, to be considered timely. The
Union's exceptions were postmarked September 6, 1988. Therefore,
the exceptions were timely filed.

III. Background and Arbitrator's Award

     This case arose when an employee grieved that management
failed to notify her properly when a vacancy notice was
cancelled. During processing of the grievance, the Union asserted
that the Agency failed to file a timely response at the second
step of the grievance procedure. The Union argued that the Agency
must sustain the employee's grievance because of its untimely
response. Management asserted that its response was timely. The
parties were unable to resolve this dispute and agreed to
arbitrate the matter.

     The questions before the Arbitrator were "(w)hether the
grievance is arbitrable; and, if so, whether the Agency failed to
issue a response to the Union within the time limits set forth in
the parties' agreement?" Award at 2. Initially, the Arbitrator
concluded that the grievance was arbitrable. He found that the
Union and Agency met to discuss the timeliness issue and that
this meeting was equivalent to a third step hearing. Award at 5.
Based on this finding, the Arbitrator held that the Agency was
estopped from asserting that the grievance was not arbitrable.
Award at 8-9.

     The Arbitrator also concluded that the Agency responded
timely at the second step of the grievance procedure. In reaching
this decision, the Arbitrator discussed the requirement in
Article 13, section 7 of the parties' agreement that the Agency
provide its answer to the second step meeting in writing
within 10 calendar days. Award at 10. The Arbitrator noted that
the parties agreed that all the Union's mail deliveries would be
deposited in the mail slot in the Union office door and that the
parties had been using the mail slot delivery system for over a
year. In addition, the Arbitrator found that the Agency
implemented a "witness of delivery" procedure. Award at 9-10.

     The Arbitrator found that on the day the Agency response was
due, two Agency employees followed the delivery procedure and
completed the witness verification statement. The Arbitrator held
that evidence of delivery was credible and persuasive. Award at
10. Additionally, the Arbitrator found that "(n)othing in the
contract requires that the delivery be a personal service
delivery or that the delivery be provided to both the Union and
the Grievant." Id. The Arbitrator also noted that the "parties'
reasonable past practice has been for delivery to the Union
office mail slot." Id. Based on these findings, the Arbitrator
denied the grievance.

IV. Union's Exceptions

     The Union contends that the Arbitrator's award does not draw
its essence from the parties' agreement. The Union asserts that
the Arbitrator did not rely on the agreement when he determined
that the Agency's second step grievance response was timely.
Further, the Union asserts that the Arbitrator erred when he
determined that a third step meeting took place. The Union also
argues that the Arbitrator failed to consider that the parties'
past practice was to notify the grievants as well as the Union of
grievance responses; ignored previous arbitration awards on the
same issue; and did not consider the evidence before him. The
Union requests that the Authority overturn the Arbitrator's award
and that the adjustment of the grievance be granted.

V. Analysis and Conclusion

     The Union's exceptions fail to establish that the
Arbitrator's award does not draw its essence from the parties'
agreement. In order for an award to be found deficient on the
basis that it does not draw its essence from the agreement, the
party making the allegation must demonstrate that the award: (1)
cannot in any rational way be derived from the agreement; or (2)
is so unfounded in reason and fact, and so unconnected with the
wording and purpose of the agreement, as to manifest an
infidelity to the obligation of the arbitrator; or (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. See
General Services Administration, Region 4, Kennedy Space Center,
Florida and American Federation of Government Employees, Council
236, 32 FLRA  1293, 1297 (1988).

     The Union has not persuaded us that the award is deficient
under any of these tests. Compare American Federation of
Government Employees, Local 547 and Tampa Veterans Administration
Hospital, 19 FLRA  725 (1985) (award deficient where arbitrator
decided issue which was excluded from coverage under the
grievance procedure).

     In this case, the Arbitrator noted that Article 13, section
7 of the parties' agreement required that the Agency answer the
grievance in writing in 10 calendar days as the second step of
the grievance procedure. After reviewing the evidence, the
Arbitrator concluded that the Agency complied with this
requirement. Award at 10. Therefore, the Arbitrator's award was
based on contractual provisions.

     The Union also asserted that the Arbitrator erred when he
found that a third step meeting occurred and that he failed to
consider the parties' past practice, the evidence presented, and
previous arbitration awards on the same issue. The Arbitrator
decided the arbitrability issue based on his determination that a
meeting to discuss the timeliness of the Agency's response
constituted a third step hearing. This finding constituted a
procedural ruling and provides no basis on which to set aside an
award. See, for example, Veterans Administration Medical Center,
Birmingham, Alabama and American Federation of Government
Employees, Local 2207, 32 FLRA  1078 (1988) (exceptions
challenging an arbitrator's determination on the procedural
arbitrability of a grievance provide no basis for finding the
award deficient).

     Contrary to the Union's assertions, the Arbitrator evaluated
the parties' evidence and their past practice concerning delivery
of grievance responses. He stated that nothing in the agreement
required delivery to the grievant and that the parties' past
practice was that delivery be made to the Union office mail slot.
Award at 10. The Union's arguments that the Arbitrator did not
consider prior arbitration awards with similar issues do not
provide a basis for finding the award deficient. An arbitrator is
not bound to follow previous arbitration awards with similar
issues when deciding a dispute before him. See, for 
example, Warner Robins Air Logistics Center, Robins Air Force
Base, Georgia and American Federation of Government Employees,
AFL - CIO, Local Union 987, 28 FLRA  107 (1987).

     In summary, we find the Union's exceptions constitute
nothing more than disagreement with the Arbitrator's findings of
fact, evaluation of the evidence, interpretation and application
of the parties' agreement, and conclusion that the Agency
fulfilled its obligation to notify the Union within the time
limit set by the parties' agreement. See, for example, American
Federation of Government Employees, Local 85 and Veterans
Administration Medical Center, Leavenworth, Kansas, 32 FLRA  53
(1988). These contentions provide no basis for finding the award
deficient, and we deny the Union's exceptions.

VI. Decision

     The Union's