43:0963(77)AR - - Air Force, OK City Air Logistics Center, Tinker AFB and AFGE Local 916 - - 1992 FLRAdec AR - - v43 p963



[ v43 p963 ]
43:0963(77)AR
The decision of the Authority follows:


43 FLRA No. 77

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2146

DECISION

January 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Russell C. Neas 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 exceptions.

The Arbitrator denied a grievance alleging that the grievant was entitled to a promotion. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a WG-5 equipment cleaner, filed a grievance alleging that he had performed WG-7 duties and was entitled to be promoted to that grade. When the grievance was not resolved, it was submitted to arbitration.

As relevant here, the Arbitrator stated that the "threshold issues" before him included whether: (1) the grievance was timely filed; and (2) the Agency violated the parties' collective bargaining agreement by the manner in which it processed the grievance. Award at 18. The parties stipulated to the following "merits" issue:

Was the grievant . . . assigned or detailed to the grade controlling duties of a WG-7009-07 Equipment Cleaner position from October 7, 1985 to the current time? If so, were any laws, rules, regulations or the Master Labor Agreement violated which provide him entitlements to retroactive promotion and backpay?

Id.

As to the threshold issues, the Arbitrator determined that insofar as the grievance alleged that the grievant was improperly denied a temporary promotion, it was not timely filed. The Arbitrator noted that the parties' agreement requires an employee to file a grievance within 21 calendar days of the occurrence or knowledge of the occurrence giving rise to the grievance. The Arbitrator found no evidence that any details, formal or informal, or any other actions that could give rise to a temporary promotion occurred within 21 days of the filing of the grievance. The Arbitrator also found that the grievance encompassed a claim for a permanent promotion, however, and concluded that to this extent, the grievance was timely filed. Finally, the Arbitrator rejected the Union's argument that the Agency violated the parties' agreement by the manner in which it processed the grievance.

On the merits, the Arbitrator stated that the Union submitted "no hard evidence by which to show the extent of [the grievant's] performance of higher-graded or job-controlling duties." Id. at 31. Accordingly, the Arbitrator denied the grievance.

III. The Union's Exceptions

The Union argues that the award is deficient because the Arbitrator exceeded his authority in finding that the grievance was, in part, untimely filed. According to the Union, that issue was not presented to the Arbitrator or considered at the arbitration hearing. The Union also argues that this aspect of the award conflicts with the parties' agreement and 5 U.S.C. § 7513.

On the merits, the Union disputes the Arbitrator's conclusion that the evidence did not support a finding that the grievant was entitled to a promotion to WG-7 is erroneous. According to the Union, numerous witnesses testified that the grievant performed higher-graded duties. Moreover, the Union claims that the lack of evidence is attributable to the Agency's violation of Air Force Regulation (AFR) 40-321.(*) Finally, the Union asserts that the Arbitrator improperly refused to consider another arbitrator's award on relevant issues.

IV. Analysis and Conclusions

We will address separately the Union's exceptions to the Arbitrator's resolution of the timeliness and the merits issues.

A. Timeliness

An arbitrator exceeds his or her authority by, among other things, resolving an issue not submitted to arbitration or awarding relief to persons not encompassed with the grievance. For example, U.S. Department of Veterans Affairs, Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1988, 37 FLRA 1092, 1094-95 (1990). However, in the absence of a stipulation by the parties, an arbitrator's formulation of the issues to be resolved in arbitration is accorded substantial deference. For example, U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 97 (1991).

In this case, the parties stipulated the "merits" issue to be resolved in arbitration. Award at 18. There is no assertion, however, that the parties stipulated the "threshold" issues, which, according to the Arbitrator, encompassed the matter of the timeliness of the grievance. Id. Accordingly, there is no basis for concluding that the Arbitrator exceeded his authority by resolving this issue.

In addition, questions concerning procedural arbitrability are appropriate for resolution by an arbitrator and are generally not subject to review or challenge before the Authority. For example, U.S. Department of the Navy, Naval Base, North Island, San Diego, California, 38 FLRA 1509, 1512 (1991). Nothing in the Union's argument regarding the Arbitrator's alleged violation of the parties' agreement in resolving the timeliness issue provides a basis for concluding that the Arbitrator's resolution of the procedural arbitrability question in this case is deficient.

Finally, we reject the Union's contention that the Arbitrator's award violates 5 U.S.C. § 7513, which pertains to adverse actions, such as removals and suspensions for more than 14 days. The grievance in this case did not concern an adverse action. Accordingly, 5 U.S.C. § 7513 does not apply.

B. The Merits

The Arbitrator determined that the Union had not proven that the grievant was improperly denied a promotion. In particular, the Arbitrator found "very little evidence, if any, to support such a claim." Award at 31.

We reject the Union's assertion that the Arbitrator's finding is deficient because numerous witnesses testified in favor of the grievant. This contention constitutes mere disagreement with the Arbitrator's evaluation of the evidence and findings and conclusions based thereon. As such, it provides no basis for finding the award deficient. See U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and National Federation of Federal Employees, Local 977, 40 FLRA 1099, 1104 (1991).

We also reject the Union's contention that the award violates AFR 40-321. Section 7122(a) of the Statute provides that an award is deficient if it conflicts with a governing rule or regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990).

AFR 40-321 requires the Agency to document certain details. The Arbitrator stated that "[i]n order to hold the supervisor responsible for violation of [the] regulation it must be established that such details occurred." Award at 33. The Arbitrator concluded that as there was "neither documented [n]or convincing evidence[]" of such details, the Agency did not violate the regulation. Id. It is clear that the Union's interpretation of the regulation differs from that of the Arbitrator. The Union has not shown, however, that the Arbitrator's interpretation conflicts with the plain wording of the regulation or is otherwise impermissible. Therefore, the Union has not shown that the award conflicts with the regulation. For example, U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center,