34:0166(37)AR - U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, LEAVENWORTH, KANSAS and AFGE, LOCAL 85 -- 1990 FLRAdec AR
[ v34 p166 ]
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 exceptions are denied.