46:1328(128)AR - - AFGE, Local 48, Bremerton Metal Trades Council and Navy, Puget Sound Naval Shipyard, Bremerton, WA - - 1993 FLRAdec AR - - v46 p1328
[ v46 p1328 ]
The decision of the Authority follows:
46 FLRA No. 128
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
BREMERTON METAL TRADES COUNCIL
U.S. DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
February 5, 1993
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 Eric B. Lindauer filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Rules and Regulations. The Union filed an opposition to the Agency's exception.
The Arbitrator found that two grievances were timely filed and, as such, were arbitrable. For the following reasons, we conclude that the Agency's exception fails to establish that the award is deficient. Therefore, we will deny the exception.
II. Background and Arbitrator's Award
The Union filed two grievances on behalf of a grievant, claiming that she had been assigned supervisory duties on several occasions in 1989, 1990, and 1992, without receiving additional compensation for such work. The Agency denied the grievances on the basis that they were not timely filed pursuant to the parties' collective bargaining agreement.(*) The matter was not resolved and was submitted to arbitration.
The parties stipulated the following issue for arbitration:
Were the grievances of [the grievant] (EG-01945A and EG-01944A) timely filed in accordance with Article 30, Section 3002.a.3 of the Negotiated Agreement?
Award at 2.
As described by the Arbitrator, the grievant performed four details to a supervisory position but was not compensated at the supervisory level for those details. During the most recent detail, which lasted from December 8, 1991, to January 27, 1992, the grievant contacted her Union representative regarding the Agency's policy of not paying her at the supervisory rate. The Union representative advised the grievant that she could not file a grievance until she returned to her position in the bargaining unit, insofar as her status as a temporary supervisor excluded her from coverage of the parties' agreement. After the grievant's detail terminated on January 27, 1992, the Union filed the grievances on her behalf on January 29, 1992. The first grievance related to a failure to compensate the grievant for the most recent detail. The second grievance related to a failure to compensate the grievant for the three prior details.
Citing the language of Section 3002.a.3 of the parties' agreement, the Arbitrator found that two primary issues were presented for resolution: (1) what was the time frame that should have been observed by the grievant in order to properly initiate the grievances; and (2) what constitutes "reasonable awareness" of the occurrences that gave rise to the grievances. Award at 10. The Arbitrator found that, although the grievant was reasonably aware of the occurrences and failed to file the grievances within the established time limits, the time limits did not apply "based procedurally on the majority rule in labor arbitration law that certain types of alleged contract violations are continuous." Id. at 11. Accordingly, the Arbitrator concluded that both grievances were timely filed.
In reaching this result, the Arbitrator addressed the positions of the parties as to the asserted continuing nature of the violation. The Arbitrator rejected the Agency's contention that the grievant would have to remain in the supervisory position in order to assert a continuing violation. According to the Arbitrator, "the alleged violation is based on whether the [g]rievant continues to be harmed for the [Agency's] decision not to pay her for the duties she performed in the temporary detail." Id. at 13. The Arbitrator found that "[e]ach subsequent paycheck received by the [g]rievant without the additional wages creates a new 'occurrence,' and a grievance presented to the [Agency] within the 15-day limit would be timely." Id.
The Arbitrator also rejected the Agency's assertion that a finding of timeliness would negate the agreement's time limitation provision, allow the Union to raise matters based on "years-old occurrences[,]" and violate the requirement in section 7121(b)(2) of the Statute to process grievances expeditiously. Id. at 14. The Arbitrator stated that the issue here involved the Union's right to grieve on behalf of an employee who had not received pay for a temporary detail and that any entitlement to pay would be decided on the substantive merits of the case. In the Arbitrator's view, "the Union has satisfied its contractual and statutory obligation for expeditious processing of grievances." Id. at 15.
The Arbitrator also found that a prior arbitration award relied on by the Agency, relating to the timely filing of grievances, was not applicable to the grievances in this case. According to the Arbitrator, the matter here "is a continuing violation of the [a]greement not otherwise regulated by the contract provision on timeliness." Id. at 16.
Next, the Arbitrator addressed the portion of the parties' agreement that requires grievances to be the result of an occurrence of which a grievant is aware or reasonably aware. With respect to the grievance concerning the three prior details, the Arbitrator found that the grievant was reasonably aware of the occurrences of the alleged violation when she received a Leave and Earnings Statement at the conclusion of each of the details. In fact, the Arbitrator noted that the grievant had discussed the question of pay with her supervisor on at least one occasion and had otherwise expressed concern about payment for the details.
With respect to the grievance concerning the most recent detail, the Arbitrator found that the grievant also became aware of the alleged violation when she received a Leave and Earnings Statement showing no adjustment in her pay. The Arbitrator rejected the Union's contention that the grievant was required to wait until the end of the detail in order to file a grievance under the negotiated grievance procedure. Instead, the Arbitrator stated that he "agrees with the [Agency's] position that the [g]rievant is bound by the [a]greement's [g]rievance [p]rocedure and its time limitations." Id. at 21. In the Arbitrator's view, the grievant had the choice of grieving through the Agency's administrative grievance procedure or the negotiated grievance procedure and, having chosen the latter, she was "bound . . . to the timeliness restrictions of the [a]greement." Id. The Arbitrator continued with the following statement:
the facts of this case give clear indications of when the [g]rievant became aware or reasonably aware of the possibility that she had been harmed, and that she should have filed a grievance within the 15-day time limit described in the [a]greement. This issue would have been decided for the [Agency] if the grievances were based on any grievable matter other than the [g]rievant's wages[.]
In conclusion, the Arbitrator found that because wage disputes are not subject to the agreement's time limitations, the grievances were timely filed and were procedurally arbitrable. The Arbitrator stated that the grievant's potential harm continues based on the Agency's "biweekly determination not to pay the [g]rievant for her work in the temporary supervisory detail." Id. The Arbitrator also reiterated his view that had the grievances not concerned the alleged denial of wages, the Arbitrator would have concurred with the Agency's position that the grievances were untimely filed based on the grievant's reasonable awareness of the occurrences giving rise to the grievances.
III. Positions of the Parties
A. The Agency
The Agency claims that the award is deficient because it fails to draw its essence from the parties' agreement. More specifically, the Agency asserts that the Arbitrator did not base his award on the clear language of the agreement and, in fact, "totally ignored" the agreement. Exceptions at 5. The Agency points to the Arbitrator's finding that wage disputes are not subject to the agreement's time limitations and states that the Arbitrator cited no provision of the agreement that would rationally lead to the conclusion that the parties intended to exclude wage disputes from the negotiated time limits.
In addition, while noting that the stipulated issue before the Arbitrator involved an interpretation of Section 3002.a.3 of the agreement, the Agency maintains that the Arbitrator based his decision on an asserted "well-recognized labor law doctrine[.]" Id. As to this latter assertion, the Agency contends that the Arbitrator misapplied the theory of a continuing violation in finding that the grievances were timely filed. According to the Agency, there is no basis on which to conclude that the subject matter of a grievance determines whether the grievance involves a continuing violation.
Finally, the Agency argues that it is not disagreeing with the Arbitrator's application of the agreement, noting particularly the Arbitrator's findings that the matter would have been resolved in the Agency's favor had the grievances not involved the grievant's wages. Rather, the Agency argues that the Arbitrator simply ignored the agreement. The Agency states that if the Arbitrator's award is upheld, any grievances involving wages could be filed at any time, without regard to