45:0813(74)AR - - AFGE, Council 236 and GSA - - 1992 FLRAdec AR - - v45 p813
[ v45 p813 ]
The decision of the Authority follows:
45 FLRA No. 74
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 Ira F. Jaffe 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 dismissed a Union grievance protesting the Agency's failure to notify the Union before implementing a policy for contracting out custodial services. The Arbitrator found that the Union's grievance was untimely filed. After finding the grievance untimely filed, the Arbitrator also made a finding, in the alternative, as to the merits of the grievance.
For the following reasons, we conclude that the Union fails to establish that the award is deficient as to the Arbitrator's finding that the grievance was untimely. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance concerning a change in the Agency's policies relating to the contracting out of custodial services pursuant to Office of Management and Budget Circular A-76. As a result of the Agency's change in contracting out policies, certain preference eligible employees covered by 5 U.S.C. § 3310, who were serving under temporary appointments, were separated from the service.*/ The separations occurred at various locations and times from 1985 until 1991.
The Union grievance was filed on May 7, 1991, and "alleged that the Agency had failed to notify the Union of a policy change of January 22, 1986 relative to the separation prior to their anniversary dates of Section 3310 preference eligible veteran employees holding only temporary appointments upon the contracting out of the work that those employees performed to the National Industries for the Severely Handicapped . . . ." Award at 1.
The grievance was submitted to arbitration. The Agency denied that it had made a policy change that required notification of the Union. Further, the Agency contended that, even if such a change had been made, the Union's grievance was untimely under Article 34, Section 8.B.1 of the parties' national collective bargaining agreement, which provides:
1. The Union or the Employer shall raise the grievance in writing within thirty (30) days of the incident giving rise to the grievance, or within thirty (30) days after the Union or the Employer becomes aware or reasonably should have become aware of the matter out of which the grievance arises.
Id. at 18.
The Arbitrator agreed with the Agency and ruled that "[t]he record evidence established that the Union knew or should have known of the Agency's policy of separating temporary Section 3310 eligible employees more than thirty (30) days prior to May 7, 1991. Accordingly, this grievance must be dismissed as untimely filed." Id. at 20. The Arbitrator also made "a finding that the record evidence failed to establish a mutually accepted past practice/policy or any change in working conditions in regard to the separation of temporary Section 3310 employees since at least 1986." Id.
The Arbitrator made the following award:
The instant grievance is dismissed as procedurally nonarbitrable due to the Union's failure to have filed the grievance within thirty days of when it knew, or should have known, of the complained of policy of separating Section 3310 eligible employees holding temporary appointments prior to their anniversary dates in situations where the work that those employees performed was contracted out.
Alternatively, the proof of such a claimed policy/past practice was unpersuasive in this case.
For both reasons, the instant grievance must be dismissed.
Id. at 26.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's award is contrary to law because the Arbitrator failed to require the Agency to comply with 5 U.S.C. § 3310 and because the award permits the Agency to continue an illegal past practice of circumventing that law. The Union maintains that the Arbitrator's finding that the grievance was untimely filed does not preclude the Arbitrator from enforcing the provisions of law designed to protect preference eligible employees.
The Union asserts that the Arbitrator exceeded his authority and disregarded the intent of the parties' agreement. The Union contends that the Arbitrator did not consider the fact that the violations of the law occurred in various regions of the Agency and it was not possible under the parties' agreement to file a grievance until a violation affected at least two regions. The Union claims that it filed a timely grievance when two regions were affected and the matter became suitable for action at the national level.
B. The Agency
The Agency denies that the award is contrary to law and maintains that the Arbitrator properly found that the grievance was untimely filed under the parties' agreement. The Agency asserts that the legal protections for preference eligible employees apply only to permanent employees and not to temporary employees. The Agency argues that the Union should have filed a grievance at the time of the first alleged violation by the Agency because the matter at issue, contracting out, was national in scope and subje