47:0165(10)AR - - AFGE, Local 916 and Air Force Logistics Command, Tinker AFB, OK - - 1993 FLRAdec AR - - v47 p165



[ v47 p165 ]
47:0165(10)AR
The decision of the Authority follows:


47 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

0-AR-2357

_____

DECISION

March 19, 1993

_____

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 Donald Daughton 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 did not file an opposition to the Union's exceptions.

The grievant filed a grievance contending that she was entitled to a promotion and backpay. The Arbitrator found that the grievance was untimely filed and denied the grievance. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In April 1988, the grievant became a WG-5 Sheetmetal Worker in the Sheetmetal Backshop, an area in which aircraft parts are repaired. In February 1989, the grievant was promoted to WG-8. On April 8, 1991, the grievant filed a grievance contending that she had performed WG-10 duties in the Backshop without being promoted to or paid at the WG-10 level. In order to be promoted to WG-10, an employee must have, among other things, 1 year of experience at the WG-8 level. The grievance was not resolved and was submitted to arbitration.

As relevant to the decision herein, the Arbitrator framed one of the threshold issues as follows:

1. Was the grievance filed in a timely manner in accordance [with] Article 6 of the Master Labor Agreement? If not, is the grievance arbitrable?

Award at 2.

Before the Arbitrator, the Agency contended that the grievance was not arbitrable because Article 6.07 of the parties' agreement requires that grievances must be raised within 21 days of the occurrence giving rise to the grievance.(*) The Agency argued that the "[g]rievant sat on her rights for approximately one year" before she filed her grievance. Id. at 13.

The Union contended, however, that the grievance was arbitrable because: (1) the parties' agreement does not establish specific penalties for untimeliness; and (2) the Agency did not demonstrate that it was prejudiced or inconvenienced by "any alleged untimeliness . . . ." Id. The Union also argued that "to deprive the [g]rievant of her only right to be heard on the merits would be unreasonable and would not be for just cause." Id.

The Arbitrator noted that Article 6.07 of the parties' agreement provides that grievances must be filed within 21 days "from either the date of the management action or occurrence giving rise to the grievance or reasonable awareness of such action or occurrence." Id. at 15. The Arbitrator found that the grievant had "waited approximately 14 months from the time she believed she was first entitled to promotion to the WG-10 level before she filed her grievance." Id. The Arbitrator also found that neither the grievant nor the Union had presented any explanation or evidence "as to why the [g]rievant was justified in waiting 14 months from the day she contends she was originally entitled to promotion before filing her grievance." Id. The Arbitrator stated that "sometime well in advance of the date she filed her grievance[, the grievant] had reasonable awareness that she was not going to be promoted to the WG-10 level." Id. The Arbitrator concluded that he could "find no justification for [the grievant's] failure to comply with the time limit prescribed in the [parties' agreement] for filing a grievance." Id. Accordingly, the Arbitrator found that the grievance was untimely filed and denied the grievance.

III. First Exception

A. Union's Contentions

The Union contends that the Arbitrator's award is inconsistent with Article 6.07 of the parties' agreement. The Union argues that "[t]here was no evidence submitted at the hearing that would prove by a preponderance of the evidence standard that the [g]rievant was aware of the timeliness of filing her grievance." Exceptions at 3. The Union also argues that the Agency did not challenge the grievant as to the timeliness of the grievance.

B. Analysis and Conclusions

The Union argues that the Arbitrator's determination that the grievance was untimely filed is inconsistent with the parties' agreement. We interpret the Union's argument as a contention that the Arbitrator's award does not 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, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992) (Tinker Air Force Base).

The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator concluded, based on the evidence, that the grievant was not justified in failing to comply with the time limit for filing grievances established in Article 6.07 of the parties' agreement. In particular, the Arbitrator concluded that the grievant was reasonably aware, as provided in Article 6.07, that she was not going to be promoted to WG-10 well in advance of the filing of her grievance. The Union has not shown that the Arbitrator's conclusion that the grievance was untimely filed under Article 6.07 of the parties' agreement is irrational, implausible, or otherwise deficient under the tests set forth above. There is, therefore, no basis on which to conclude that the award fails to draw its essence from that agreement.

The Union also contends that a preponderance of the evidence does not support a determination that the grievant was aware of the timeliness of filing the grievance. The Union's contention constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence. Such disagreement does not provide a basis for finding an award deficient. See, for example, National Labor Relations Board and National Labor Relations Board, Professional Association, 35 FLRA 1116, 1127 (1990).

The Union further argues that the Agency did not object to the timeliness of the grievance when it was filed. The Union's contention constitutes 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. 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, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 588, 592 (1992). Accordingly, we will deny the Union's first exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the award is contrary to the Back Pay Act. The Union argues that, because the Back Pay Act establishes a 6-year limit within which claims must be filed, the "[g]rievant in the instant case would have had six years in which to have filed a claim." Exceptions at 4. The Union notes that "employees covered by a collective bargaining agreement must exhaust administrative remedies . . . unless the collective bargaining agreement specifically states [that backpay] is excluded from the negotiated agreement." Id. According to the Union, "promotion and backpay are not excluded from the [parties'] collective bargaining agreement." Id. The Union argues, however, that the parties' agreement is silent with respect to whether the collective bargaining agreement or the Back Pay Act control the timeliness of grievances. The Union contends that, because the grievant had 6 years in which to file a grievance for backpay under law, the Arbitrator's award denying the grievance is inconsistent with law.

B. Analysis and Conclusions

The Union's argument that the award is inconsistent with the Back Pay Act provides no basis for finding the award deficient. The grievant filed her grievance under the parties' agreement claiming entitlement to a promotion and backpay. The Arbitrator found that the grievance was untimely filed under Article 6.07 of the parties' agreement and concluded, therefore, that the grievance was procedurally nonarbitrable. The Union has not cited any portion of the Arbitrator's award that is inconsistent with the Back Pay Act and no conflict is apparent to us. In our view, therefore, the Union's contentions constitute nothing more than disagreement with the Arbitrator's conclusion that the grievance was controlled by the time limits prescribed in Article 6.07. Such disagreement provides no basis for finding the award deficient. Tinker Air Force Base, 45 FLRA at 1142. Accordingly, we will deny the Union's second exception.

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