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 fully qualified for promotion in September or October 1988[,]" and that even if they had been so qualified they had "no reasonable basis" based on the terms of the training program "for expecting to be promoted" at that time, the Arbitrator found "no basis for sustaining the grievance on its merits even if [he] had found the matter to be properly before [him]." Id. at 10.
As his award, the Arbitrator stated:
The grievance is deemed properly advanced to arbitration as an "et al." matter. However, the Arbitrator concludes that the grievance was untimely filed and is non-arbitrable. Thus, the grievance is denied.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator violated the parties' collective bargaining agreement and exceeded his authority by: (1) determining that the grievance was untimely filed; and (2) issuing an advisory opinion on the merits after he had determined that the grievance was not arbitrable. According to the Union, if the grievants had filed grievances before the expiration of the scheduled 1-year training program, the grievances "would have been premature, as the Agency could have accomplished additional training at any time." Exceptions at 1-2.
With respect to the Arbitrator's determination that the grievance was untimely filed, the Union asserts that the award does not draw its essence from the parties' agreement and that but for the Arbitrator's misapplication of the agreement, the grievances would have been heard on the merits and not dismissed as not arbitrable.
B. Agency's Opposition
Noting that the parties' agreement states that arbitrators shall have the authority to make all grievability and/or arbitrability determinations, the Agency asserts that the agreement "[c]learly . . . authorize[d] the [A]rbitrator to make decisions on the timeliness of [the] grievances" and that the Union has not identified any law, rule, or regulation that the award violates. Opposition at 3. The Agency cites cases in which the Authority has held that questions involving procedural requirements of collective bargaining agreements, including timeliness determinations, are properly questions for resolution by an arbitrator. Accordingly, the Agency contends that the Union's exception in this regard should be denied.
As to the Union's contention that the Arbitrator lacked authority to provide an advisory opinion on the merits of the grievance after finding that the grievance was untimely filed, the Agency asserts that this contention should be rejected. Citing Department of the Air Force, Warner Robins Air Force Base and American Federation of Government Employees, Local 987, 32 FLRA 1081 (1988) (Warner Robins), the Agency contends that "exceptions to dicta in awards provide no basis for [the Authority's] review since dicta is not part of an award." Id. at 4.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the award deficient.
The Union contends that the Arbitrator violated the parties' collective bargaining agreement and exceeded his authority by determining that the grievance was untimely filed. The Arbitrator's determination that the grievance was untimely filed constitutes a determination of the procedural arbitrability of the grievance. The Authority has consistently held that disagreement with arbitral determinations concerning procedural arbitrability does not demonstrate that an award is deficient under section 7122(a) of the Statute. See, for example, U.S. Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 973, 977 (1990). Rather, the Union's assertions amount to nothing more than disagreement with the Arbitrator's interpretation of the procedural requirements of the collective bargaining agreement and the application of those requirements to the circumstances of the grievance before him.
Moreover, even if the award did not concern procedural arbitrability, the Union has not demonstrated that the award is deficient. The Union asserts that with respect to the Arbitrator's determination that the grievance was untimely filed, the award fails to draw its essence from the parties' agreement. To demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council Local 3725, 36 FLRA 928, 933 (1990).
The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator considered and rejected the Union's argument that the relevant incident for measuring the timeliness of the grievance under the parties' agreement was each individual employee's promotion