45:0588(50)AR - - AFGE Local 916 and Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK - - 1992 FLRAdec AR - - v45 p588
[ v45 p588 ]
The decision of the Authority follows:
45 FLRA No. 50
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 Samuel J. Nicholas, Jr. 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 exceptions.
The Arbitrator denied a grievance on the basis that it was untimely filed. 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
On or about July 24, 1988, the grievant voluntarily entered a training program to train for the position of WG-3703-11 Welder. In accordance with the terms of the training program, the grievant was temporarily downgraded from the WG-10 level to the WG-8 level for training purposes and was placed in a retained pay status. The grievant "received some training" from a Government contractor which "ended sometime in October 1988." Award at 4. The grievant remained at the WG-8 level until approximately August 6, 1989, at which time he was promoted to the WG-11 level.
The Union filed a grievance on August 22, 1989, contending that the grievant should have been promoted in October 1988, after the training was completed. In addition to requesting backpay on behalf of the grievant, the grievance requested backpay on behalf of three other employees who also had been in training. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Union argued that the grievance was timely filed. The Union noted that under the parties' agreement, grievances must be filed within 21 calendar days from "reasonable awareness of the incident." Id. at 5. According to the Union, the incident in this case was each individual employee's promotion, and each employee filed his grievance within 21 days from the date that he was promoted. The Union contended that the employees' training program was supposed to take 1 year and that had the employees filed their grievances before the "one[-]year formal training" period had expired, the Agency would have argued that they were prematurely filed. Id.
The Union also argued that the grievance was "properly advanced to arbitration as a collective or 'et al.' grievance" because the request for arbitration in January 1990 clearly indicated that the dispute included the grievant and the other employees. Id. The Union also asserted that the Agency did not object to the inclusive nature of the grievance prior to the arbitration hearing.
On the merits of the grievance, the Union asserted that all of the formal training that the grievants received ended in September or early October 1988. Therefore, the Union requested the Arbitrator to sustain the grievance, to direct the Agency to grant the employees promotions retroactive to October 1, 1988, and to make them whole for lost wages and benefits.
The Agency asserted that the grievance was untimely filed and, thus, not arbitrable. The Agency argued that if the grievant had a basis for filing a grievance when he was not promoted in October 1988, he should have filed it within 21 days of that time instead of filing it almost a year later. The Agency also asserted that, although several employees were contesting the timing of their respective promotions, the only grievance properly before the Arbitrator was that filed by the grievant. The Agency contended that it did not agree to consider all of the employees' contentions in the grievance and that it was not required to advise the Union in advance of the arbitration hearing that it would object to the inclusive nature of the grievance. Further, the Agency asserted that the Union failed to prove that the employees' contentions were properly advanced to arbitration or that there was any merit to the contentions. According to the Agency, the grievant was not performing WG-11 duties until he was promoted in August 1989. In sum, the Agency contended that it acted in compliance with all applicable laws, rules, regulations, and the parties' collective bargaining agreement, and that the grievance should be denied.
The Arbitrator stated that there were three issues before him: (1) was the grievance timely filed in accordance with the agreement; (2) if so, was the grievance properly advanced to arbitration as an "et al." grievance; and (3) was the promotion of the grievant and the other employees in violation of any law, rule, or regulation?
As to the first issue, the Arbitrator concluded that the grievance was not timely filed and was, therefore, not arbitrable. The Arbitrator noted that although the grievant alleged that he was not promoted in September or October 1988, he did not file his written grievance until almost a year later, in August 1989. Noting that the purpose of the time limits in the parties' agreement "is to prevent the processing of stale grievances or matters which have not been placed into the grievance process in sufficient time to prevent prejudice to the opposing party[,]" the Arbitrator found that the grievant did not put the Agency on notice of his grievance until almost a year of backpay had accrued and the Agency had been unable to prevent that accrual. Id. at 8. The Arbitrator found that "[c]learly, [the g]rievant was aware of his 'grievable event' or the 'triggering event' for his grievance" as early as September 1988 and, therefore, the grievant should have filed his grievance at that time. Id. Noting that the agreement "mandates that the grievance be brought forward within 21 days of the relevant incident[,]" the Arbitrator concluded that "the grievance was not filed in a timely manner and is, therefore, non-arbitrable." Id.
As to the second issue, the Arbitrator stated that although he had determined that the grievance was untimely filed, "in order to truly serve the parties" he felt "compelled to offer [his] findings on the issue of the 'et al.' status of the grievances." Id. at 9. The Arbitrator found that "the grievances . . . were constructively consolidated" and were properly considered as an "et al." matter. Id.
As to the third issue, the Arbitrator stated that because he had concluded that the grievance was untimely and not arbitrable, he was without authority to consider the merits of the case. The Arbitrator went on to state that "in an advisory capacity only, the Arbitrator would like to inform the parties that he is of the opinion that [the] Union has failed to carry its burden of proof on the merits of the dispute." Id. at 9-10 (emphasis in original). Finding that there was "ample evidence that none of the [g]rievants were ful