44:0143(12)AR - - VA, Olin E. Teague Medical Center, Temple, TX and AFGE Local 2109 - - 1992 FLRAdec AR - - v44 p143
[ v44 p143 ]
The decision of the Authority follows:
44 FLRA No. 12
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
OLIN E. TEAGUE MEDICAL CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 27, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator John A. Bailey 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 filed an opposition to the Union's exception.
The Arbitrator denied a grievance contesting an employee's performance rating on the ground that the grievance was untimely filed. For the following reasons, we conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
A grievance contesting the grievant's performance rating was submitted to arbitration. The Arbitrator concluded that, as the grievance was not filed until 35 days after the grievant received the disputed rating, the grievance was untimely filed. The Arbitrator found that, under the parties' collective bargaining agreement, a grievance must be filed "'in writing within 30 calendar days of the date that the employee . . . became aware . . . of the act [complained of][.]'" Award at 2 (Article 13, section 7 of the parties' agreement) (emphasis in original). The Arbitrator rejected the Union's argument that the grievant's refusal to sign her performance rating constituted the filing of a grievance. Consequently, the Arbitrator denied the grievance.
III. The Union's Exception
The Union contends that the Arbitrator's award is based on a nonfact. The Union argues that because the grievant attempted to resolve her performance appraisal dispute with her supervisor informally, the time limit for filing her grievance did not begin until the informal attempt failed.
IV. The Agency's Opposition
The Agency argues that the Union's exception does not demonstrate that the award is deficient.
V. Analysis and Conclusions
To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 342 (1991).
The Union has not demonstrated that the Arbitrator's award is based on a nonfact. Rather, the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence and interpretation of the parties' collective bargaining agreement in resolving a question of procedural arbitrability. As such, it provides no basis on which to find the award deficient. See, for example, id. at 343. Accord