35:1187(134)AR - - Army, Fort Monroe, Virginia and NAGE Local R4-11 - - 1990 FLRAdec AR - - v35 p1187



[ v35 p1187 ]
35:1187(134)AR
The decision of the Authority follows:


35 FLRA No. 134

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

FORT MONROE, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-11

(Union)

0-AR-1847

DECISION

May 31, 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 Arthur T. Van Wart. A grievance was filed and submitted to arbitration contesting the 1-day suspension of the grievant. The Arbitrator determined that the grievance had not been timely filed under the provisions of the parties' collective bargaining agreement. He ruled, therefore, that the grievance was not arbitrable and denied the grievance.

The Union filed an exception 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 filed an opposition to the Union's exception.

For the following reasons, we find that the Union has failed to establish that the Arbitrator's award is deficient.

Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievance concerned the Agency's 1-day suspension of the grievant for insubordination. The grievance was submitted to arbitration. At the arbitration hearing, the Agency argued that the grievance should be dismissed because neither the Union nor the grievant had timely completed certain mandatory steps contained in the parties' negotiated grievance procedure before invoking arbitration. The Union, noting that the Agency had not raised any procedural objection prior to the arbitration hearing, contended that the Agency had waived its right to raise the issue at the arbitration hearing.

The Arbitrator stated that "[t]he first question to be resolved is that of the arbitrability of this grievance." Award at 17. The Arbitrator found that the Agency's right to raise the issue of arbitrability was not barred and was not waived by the Agency's participation in the hearing.

The Arbitrator determined that the Union had timely processed the grievance at Steps 1 and 2 of the parties' grievance procedure. The Agency did not reach a decision at Step 2 of the grievance procedure. The Arbitrator found that Article XXXVII, Section 11 of the parties' agreement established the procedures that, absent a mutually agreed-upon waiver by the parties, governed grievance processing time limits in situations where a management official had not made a decision at a step of the grievance procedure.

Based on his interpretation of the parties' agreement, the Arbitrator found that: (1) there was no evidence to indicate that the parties had mutually agreed to waive the procedural time limits contained in the parties' grievance procedure; (2) either the Union or the grievant must advance the processing of a grievance where a management official has failed to act in rendering a decision at any step of the negotiated grievance procedure; and (3) the Union had not complied with the applicable grievance processing time limits with respect to Step 3. The Arbitrator ruled that the grievance was not arbitrable and that he did not have jurisdiction to consider the merits of the grievance.

III. Positions of the Parties

A. Union's Exception

The Union contends that: (1) the Arbitrator's award is deficient because it does not draw its essence from the parties' agreement; and (2) the Arbitrator did not apply the proper legal standards in resolving the arbitrability issue.

The Union asserts that the processing of this grievance was a "detour" from the normal grievance steps. Exception at 2. The Union claims that the management official who normally would have decided Step 2 of the grievance procedure disqualified himself and designated a subordinate to handle the decision. According to the Union, the subordinate official had transferred to another activity and was not present to render a decision. The Union asserts that it sought to determine who would render a second-step decision and, eventually, was informed that "the agency had simply decided to refuse to process the grievance further because [the grievant] had been terminated." Id. The Union contends that, after being so advised, it "had no alternative but to invoke arbitration." Id.

The Union asserts that Article XXXVII, Section 11 of the parties' agreement contemplates a waiver of grievance processing time limits where the parties mutually agree that the limits should be extended. The Union claims that the evidence demonstrates that the divergence from the grievance procedure was initiated by the Agency and that the Union and the grievant agreed to proceed in the manner suggested by the Agency. Therefore, the "agreement, by necessity, included an agreement to the extension of any time limits needed for the modified procedure." Union's Exception at 5.

The Union also contends that the Agency was barred from raising the arbitrability of the grievance as an issue at the arbitration hearing because it had not been raised previously. The Union relies on Gunn v. Veterans Administration Medical Center, Birmingham, Alabama, 892 F.2d 1036 (Fed. Cir. 1990) (Gunn) to support its position. According to the Union, the Arbitrator erred when he permitted the Agency to raise the issue of procedural arbitrability at the hearing because the Agency had waived its right to do so. Union's Exception at 7.

Finally, noting that Article XXXVII, Section 11 provides that the "'[f]ailure of a management official of the employer to comply with any applicable processing time limit will constitute a valid basis for the grievance to be promptly advanced to the next higher step[,]'" the Union contends that the Arbitrator should have determined that the grievance was automatically advanced to the next step of the grievance procedure. Exception at 6.

B. Agency's Opposition

The Agency asserts that the Union's exception should be denied. The Agency argues that, because "[a]ll the issues raised by the [U]nion in its exception were raised and addressed by the [A]rbitrator" in his award, the Union is merely attempting to relitigate the case before the Authority. Opposition at 4.

The Agency also argues that the Union's reliance on Gunn is misplaced. The Agency maintains that, in Gunn, the parties had followed the steps of their grievance procedure and, after arbitration had been invoked, delayed the proceedings. According to the Agency, "[t]he court in Gunn ruled that failure to abide by such nonjurisdictional procedural time requirements did not negate the arbitrator of jurisdiction." Id. (emphasis in original).

The Agency also states the following with respect to Gunn:

In the matter now before the Authority, the union failed to follow a jurisdictional prerequisite to arbitration, namely the third step of the grievance procedure. In its final footnote, the court in Gunn specifically stated that there was a difference between a delay pertaining to the initiation of a grievance or arbitration and dilatoriness during the course of the proceedings. That difference is the fatal fallacy in this aspect of the union's exception.

Id.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has not established 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 has not demonstrated that the award fails to draw its essence from the parties' collective bargaining agreement. The Arbitrator addressed pertinent provisions of the parties' agreement and concluded that the grievance was not arbitrable under Article XXXVII, Section 11 of that agreement. The Union has not shown 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 agreement; 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).

We find that the Union's contentions constitute nothing more than disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the grievance was timely filed. These contentions provide no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 34 FLRA 203, 205 (1990) (an exception which does nothing more than disagree with an arbitrator's determination on the procedural arbitrability of a grievance provides no basis for finding the award deficient). See also American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223 (1988), in which the Authority stated:

Our denial of exceptions which merely disagree with an arbitrator's determination on the procedural arbitrability of the grievance is consistent with the decisions of Federal courts in private sector labor relations cases. For example, John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grew out of the dispute and bear on its final disposition should be left to the arbitrator."); Teamsters Local 744 v. Metropolitan Distributors, 763 F.2d 300, 303 (7th Cir. 1985) (the effect of a party's failure to submit a grievance within the time limitations specified in the collective bargaining agreement is an issue for determination by the arbitrator.).

32 FLRA at 1225.

In light of Authority precedent, we find that the Union's reliance on Gunn is misplaced. In Gunn, the U.S. Court of Appeals for the Federal Circuit reviewed the arbitrator's ruling on arbitrability in accordance with 5 U.S.C. § 7703(c), which is the same standard of review that it applies to final decisions of the Merit Systems Protection Board.(*) The court in Gunn noted that, because its review was governed by the statutory standard of 5 U.S.C. § 7703(c), the standard set forth in John Wiley & Sons v. Livingston (that "procedural questions should be left to the arbitrator to decide") did not apply in the case before it. Gunn, 892 F.2d at 1037 n.1.

In reviewing exceptions to arbitrator's awards under section 7122(a) of the Statute, the Authority does not apply the standard set forth in 5 U.S.C. § 7703(c) but, as relevant here, is guided by decisions of "Federal courts in private sector labor-management relations[.]" 5 U.S.C. § 7122(a). See also, Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 821 (1979) (the Conference Committee stated that "[t]he Authority will only be authorized to review the award of the arbitrator on very narrow grounds similar to the scope of judicial review of an arbitrator's award in the private sector."). Consistent with the Supreme Court's decision in John Wiley & Sons v. Livingston and other decisions of Federal courts in private sector labor-management relations, we will deny exceptions that merely disagree with an arbitrator's determinations regarding the procedural arbitrability of a grievance. Accordingly, the decision in Gunn is inapplicable.

In this case, the steps of the grievance procedure were not timely completed. In resolving the grievance, the Arbitrator determined that the grievance was not procedurally arbitrable. Because the Union's exception does no more than express disagreement with the Arbitrator's