34:0916(153)AR - - Army, 7th Infantry Division (Light), Fort Ord, CA and AFGE Local 2082 - - 1990 FLRAdec AR - - v34 p916
[ v34 p916 ]
The decision of the Authority follows:
34 FLRA No. 153
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
7TH INFANTRY DIVISION (LIGHT)
FORT ORD, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 23, 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 William Eaton. The Arbitrator dismissed the grievance over the failure of the Agency to comply with an Equal Employment Opportunity Commission (EEOC) decision.
The Union filed exceptions to the award 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 exceptions.
For the reasons discussed below, we find that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
In 1977, the grievant was terminated from employment with the Department of the Army in Fort Wainwright, Alaska. In 1983, the grievant received a favorable decision from the EEOC awarding him reinstatement and other make whole relief. On October 9, 1984, the grievant received a letter from an EEOC official stating that action taken by the grievant's employer appeared to comply with the EEOC's decision and that, if the EEOC official was not notified within 20 days that the employer's corrective action did not comply with the decision, he would assume that the matter had been resolved. In response to the Arbitrator's question at the hearing "as to what reply, if any, [the grievant] had made" to the letter from the EEOC official, the grievant "produced documents bearing a number of different dates, but none within the 20 days, and none in direct response" to the letter. Arbitrator's Award at 8.
In 1988, the grievant filed a grievance concerning the Agency's compliance with the 1983 EEOC decision. The grievant alleged "that there has been improper deduction from his pay for interim earnings, that the Army has failed to pay night premium due him, and that it has failed to compensate him at the proper rate applicable in Alaska at the time in question." Id. at 2.
Before the Arbitrator, the Agency argued that the grievance was not arbitrable because: (1) it concerned an "individual" rather than a "party" matter and, therefore, was untimely under the parties' agreement; (2) the grievant took no action pursuant to the 1984 EEOC letter and, therefore, the complaint was untimely under EEOC procedures; and (3) the grievant has no standing under the parties' agreement to bring a dispute concerning compliance with an EEOC award. Id. at 3-4.
The Arbitrator stated that the nature of the grievance was "personal" and that the grievant's case appeared to be untimely under EEOC procedures. Id. at 7-8. The Arbitrator noted, however, that it "is not necessary . . . to rely on either of those grounds in order to make a definitive finding that the matter is not arbitrable" under the parties' agreement. Id. at 8. The Arbitrator stated that, under Article XXIX, Section 7 of the parties' agreement, he was "'authorized only to apply the existing provisions of this agreement to the specific issues involved and to interpret only applicable provisions of this agreement.'" Id. The Arbitrator concluded that because the grievant was "unable to point to any provision of the current [a]greement which he alleges to have been violated," the Arbitrator had no authority under Article XXIX, Section 7 to hear the grievance. Id. at 9. Consequently, the Arbitrator found that the grievance was not arbitrable.
The Union excepts to certain factual findings made by the Arbitrator, including the Arbitrator's finding that "the local [U]nion neither supports nor opposes the grievant's claims." Exceptions at 1. The Union also excepts to the Arbitrator's evaluation of evidence presented at the hearing and to the Arbitrator's authority to: (1) decide whether the nature of the grievance was "personal" or "individual"; and (2) interpret the meaning of the 1984 EEOC letter. Id. at 4.
Under section 7122(a) of the Statute, an arbitration award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases.
The Union does not contend that the award is contrary to any law, rule, or regulation. The Union excepts to certain factual and evidentiary findings made by the Arbitrator. These exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provide no basis for finding the award deficient