48:0646(64)AR - - AFGE, Local 4042 and DOD, Army and Air Force Exchange Service, Waco Distribution Center, Waco, TX - - 1993 FLRAdec AR - - v48 p646
[ v48 p646 ]
The decision of the Authority follows:
48 FLRA No. 64
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
ARMY AND AIR FORCE EXCHANGE SERVICE
WACO DISTRIBUTION CENTER
October 8, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator A. Dale Allen, 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 alleging that the Agency improperly refused to negotiate a local supplemental agreement with the Union. 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
The Arbitrator noted that a world-wide bargaining unit of employees in the Army and Air Force Exchange Service was certified as appropriate in 1981. The Arbitrator further noted that new local units are merged into the world-wide unit as they become certified by the Authority and are automatically covered by the parties' master agreement in effect at the time local unit enters the world-wide unit.
According to the Arbitrator, the bargaining unit at the Waco Distribution Center was merged into the world-wide bargaining unit in February 1990. Two months later, the local Union submitted a demand to Agency management to negotiate a local agreement for official time. The Union submitted its demand pursuant to Article 4, Section 4(b)(1) of the parties' then-existing 1987 master agreement.(1) That master agreement permitted local negotiations over official time, among other things. The Agency refused to bargain and asserted, among other things, that the demand was not timely under Article 4, Section 4(b)(1). The parties exchanged correspondence on this issue until mid-September 1990. In November 1990, the 1987 agreement expired and a new master agreement became effective which did not permit local bargaining over official time.
In May 1992, the Union filed a grievance over the Agency's refusal to bargain over official time and, when the grievance was not resolved, it was submitted to Arbitration on the following issue:
Did the Employer improperly refuse to negotiate a Supplementary Agreement with the Local Union? I[f] so, what is the appropriate remedy?
Award at 3.
As relevant here, the Arbitrator determined that the grievance was not timely filed and, therefore, was not arbitrable.(2) According to the Arbitrator, the final correspondence between the parties regarding the Union's request to bargain occurred in mid-September 1990, and, at that time, the Agency's position that the bargaining demand was untimely was clear. The Arbitrator credited the testimony of the Union witness who acknowledged that, after receiving the Agency's last letter on the subject, she did not file a grievance for 20 months.
The Arbitrator rejected the Union's arguments that the grievance procedure contained no time limits for filing a Union grievance. The Arbitrator found that, although Article 43, Section 8, of the parties' 1990 agreement did not specify a time limit for filing such grievances, Article 43 nonetheless contained "'implied' reasonable time limits." Id. at 21. The Arbitrator pointed out that Article 43, Section 1 stated that "the 'purpose of this Article is to provide a mutually acceptable method for prompt . . . settlement of grievances.'" Id. The Arbitrator concluded that "a delay of 20 months cannot be considered . . . 'prompt.'" Id.
III. Positions of the Parties
The Union argues that the award is based on "gross error, but for which a different result would have been reached[.]" Exceptions at 3 (emphasis omitted). In this connection, the Union alleges that the Arbitrator failed to consider the Supreme Court's decision in Nolde Bros. Inc., v. Local No. 388, Bakery and Confectionery Workers Union, 97 S.Ct. 1067 (1977). According to the Union, its right to negotiate a supplemental agreement with the Agency continued after the expiration of the parties' 1987 agreement because the Union engaged in "'on-going'" attempts to assert its right. Exceptions at 4.
The Union also argues that the award does not draw its essence from the parties' collective bargaining agreement. In this regard, the Union contends that the Arbitrator erred in finding the grievance untimely. The Union asserts that the parties' negotiated grievance procedure is intended to "be open and unrestricted by rigid time limits." Id. The Union asserts that "[i]t is an error on the Arbitrator's part, and a failure to base his decision on the specific language of the contract, to view this matter otherwise." Id.
The Agency asserts that the Union's arguments constitute disagreement with the Arbitrator's findings and do not demonstrate that the award is deficient.
IV. Analysis and Conclusions
We reject the Union's contention that the