35:0372(42)AR - - Air Force, San Antonio Air Logistics Center, Kelly AFB, TX and AFGE Local 1617 - - 1990 FLRAdec AR - - v35 p372
[ v35 p372 ]
The decision of the Authority follows:
35 FLRA No. 42
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator I. B. Helburn filed by 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. The Agency did not file an opposition to the Union's exception.
The Arbitrator found that the grievance was not arbitrable because the Union failed to timely file the grievance at step 3 of the grievance procedure. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we deny the exception.
II. Background and Arbitrator's Award
The Union filed a written grievance over the grievant's 1-day suspension for using profanity and other improper language towards a supervisor. The step 2 deciding official denied the grievance on April 12, 1989. The Union then filed, and the Agency approved, two requests for extensions of time to file the grievance at step 3 of the parties' negotiated grievance procedure. The Arbitrator found that on April 27, the Union filed a third request for "'extension of time limits, to C.O.B. May 9, 1989, to process subject grievance to step 2.'" Award at 2. The Agency approved the request. On May 11, 1989, the Union filed the grievance at step 3. On June 15, the Agency denied the grievance on the basis that it was untimely filed at step 3 of the negotiated grievance procedure.
The Union invoked expedited arbitration and, before the Arbitrator, the Agency asserted that the matter was not arbitrable. The Arbitrator found that "the April 27 request erroneously referred to step 2," and was intended to refer to step 3. Award at 3. He determined that the "Union did not follow the step 3 limit in this case, thus losing the right to arbitrate on the merits because procedural compliance is a prerequisite to arbitration." Id. Accordingly, the Arbitrator concluded that the grievance was not arbitrable.
III. Union's Exception
The Union contends that the award is deficient because the Arbitrator based his decision on an extension of time request which did not concern the grievant, but rather, concerned another employee with the same last name as the grievant. According to the Union, a request for an extension of time until May 13, 1989, to process the grievance was approved by the Agency on May 5, 1989. The Union asserts that it "can only assume that the improper extension request was put into the grievance package for the sole purpose as to confuse the Arbitrator and discredit the Union[']s case." Exception at 2. The Union states that "[h]ad the Union been put on notice that the advocate for the Agency intended to bring up this threshold issue . . . the Union would have been better prepare[d] to deal with this issue." Id. The Union requests that the Authority set aside the Arbitrator's award and direct the Arbitrator to rule on the merits of the grievance.
IV. Analysis and Conclusion
The Union contends that the grievance was timely filed at step 3 based on a request for an extension of time which had been granted by the Agency. The Union asserts that it did not foresee the arbitrability question being raised and that it would have been better prepared at the hearing if it had been apprised that the question would be raised. Based on these assertions, as well as the Arbitrator's award, we conclude that evidence concerning the extension of time on which the Union relies was not submitted to the Arbitrator.
There is no question that evidence concerning the extension of time was available to the Union at the time of the arbitration hearing. Further, because the grievance had been denied at step 3 on the ground that it was untimely filed, there is no question that the Union was, or should have been, aware of the existence of a question concerning timeliness. As the evidence was available at the time of the arbitration hearing, its submission to us provides no basis for finding the award deficient. See, for example, AFGE Local 1815 and U.S. Army Aviation Center, 26 FLRA 610 (1987) (arbitration awards are not subject to review on the basis either of evidence in existence at the time of the arbitration hearing but not presented to the arbitrator or evidence that has come into existence only since the arbitration hearing). See also Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Company, 442 F.2d 1234, 1238 (D.C. Cir. 1971) ("Unless parties are bound by the records made before the arbitrators, the piecemeal or staggered submission of evidence would be likely to erode the effectiveness of a