34:0551(93)AR - - AFGE Local 916 and Air Force, Tinker AFB - - 1990 FLRAdec AR - - v34 p551



[ v34 p551 ]
34:0551(93)AR
The decision of the Authority follows:


34 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 916

and

DEPARTMENT OF THE AIR FORCE

TINKER AIR FORCE BASE

0-AR-1728

DECISION

January 24, 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 Richard F. Dole, Jr. The Arbitrator determined that the appeal of American Federation of Government Employees, AFL-CIO, Local 916 (the Union) to step 3 of the negotiated grievance procedure was untimely and that, consequently, the case was not procedurally arbitrable. Accordingly, the Arbitrator dismissed 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. Tinker Air Force Base (the Activity) did not file an opposition to the Union's exceptions.

For the reasons stated below, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and the Arbitrator's Award

By notice dated January 4, 1988, the Activity notified the grievant of its decision to suspend the grievant for 10 days for "abusive and offensive language, and insolence on 2 September 1987." Arbitrator's Award at 1. On January 5, the grievant filed a grievance protesting the suspension. The Activity denied the grievance at step 2 of the negotiated grievance procedure on February 9 and the decision was received by the Union on February 11. The Union's appeal of the grievance to step 3 of the negotiated grievance procedure was received in the office of the Activity's commander on February 18, but was not received by the employee relations division until February 23.

The grievance was not resolved and was submitted to arbitration on the following issues:

1. Is the grievance arbitrable?

2. If so, was the 10-day suspension for just cause?

3. If not, what is the appropriate remedy?

Id. at 3.

The Arbitrator concluded that the Union's appeal to step 3 was untimely. The Arbitrator determined that Article 6, Section 6.07(c) of the parties' collective bargaining agreement requires receipt of a Union appeal by the employee relations division within 10 calendar days following the Union's receipt of a step 2 decision in order to be timely. The Arbitrator noted that under section 6.07(c), the Union is entitled to file a copy of the appeal in the commander's office. However, the Arbitrator determined that the filing with the commander does not satisfy the contractual requirement to file with the employee relations division within the 10-day deadline.

The Arbitrator determined that, under the agreement, the commander's office is not required to forward a step 3 appeal. The Arbitrator held that when the commander's office forwards an appeal within the 10-day deadline, the transmittal would satisfy the contractual requirement, but when the commander's office does not forward an appeal within the 10-day deadline, the appeal is untimely and the grievance is not arbitrable.

Because the Union did not file its step 3 appeal with the employee relations division and the commander's office did not transmit the Union's step 3 appeal to the employee relations division within the 10-day deadline of Article 6, Section 6.07(c), the Arbitrator ruled that: (1) the Union's step 3 appeal was untimely; and (2) the grievance was not procedurally arbitrable. Accordingly, the Arbitrator dismissed the grievance.

III. Exceptions

The Union contends that the award is: (1) contrary to and not within the intent of the parties' collective bargaining agreement; and (2) contrary to law.

IV. Discussion

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 Federal courts in private sector labor relations cases.

The Union's contentions that the award is not within the intent of the parties' collective bargaining agreement and that it is contrary to law provide no basis for finding the award deficient. These contentions constitute nothing more than disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the Union's step 3 appeal was timely filed and provide no basis for finding the award deficient. American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223 (1988) (denial of exceptions which merely disagree with an arbitrator's determination on a procedural arbitrability question is consistent with the decisions of Federal courts in private sector labor relations cases).