49:1063(99)AR - - Agriculture, Forest Service, Northern Region, ID Panhandle National Forest and NFFE, Local 1818 - - 1994 FLRAdec AR - - v49 p1063

[ v49 p1063 ]
The decision of the Authority follows:

49 FLRA No. 99











LOCAL 1818





May 20, 1994


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 William L. Corbett 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 Union filed a grievance concerning the Agency's alleged failure to extend meaningful priority consideration to the grievant, a designated surplus employee. The Arbitrator denied the grievance because the Union had not timely submitted the grievance to the Step 3 level of the parties' negotiated grievance procedure. 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

The only issue before the Arbitrator in this case was whether the grievance was procedurally defective. Specifically, the issue, as framed by the Arbitrator, was:

[W]hether the Union properly moved its grievance from Step 2 to Step 3, of the contract grievance procedure, and if not, whether that procedural failure precludes the grievance from being submitted to arbitration.

Award at 2.

Step 3 of the parties' negotiated grievance procedure provides that:

If the grievant is dissatisfied with the decision given in [S]tep 2, the grievant may submit the grievance in writing within twenty-one (21) days after receipt of the decision of the Step 2 grievance to the . . . Regional Forester.

The written grievance will specify unresolved issues and the relief requested . . . [.]

Id. at 2-3.

The Union argued before the Arbitrator that its Step 3 grievance was proper even if it had not been received by the Regional Forester. The Union asserted that because the grievance was received by the labor relations officials who normally prepare the response for the Regional Forester, the grievance was timely. The Union also asserted that the grievance complied with the written requirements of a Step 3 grievance.

The Agency contended that the Union's Step 3 grievance appeal was defective because: (1) it admittedly was not served on the Regional Forester; and (2) it did not meet the contractual procedural requirement that the grievant must submit a complete statement of the grievance, the unresolved issues, and the relief requested.

The Arbitrator found that Step 3 of the negotiated grievance procedure clearly specifies that a grievance at that level must be filed with the Regional Forester. The Arbitrator noted that this contract language is significant because at Step 3 a grievance moves both to a new level of the Agency's managerial structure and to a completely different geographical location. The Arbitrator explained that the contract provides that a grievance is not submitted to the Step 3 level unless and until the Regional Forester is served. The Arbitrator found that this process assures that the Union's final position on the Step 2 appeal will be communicated to the Regional Forester, who is charged with making the decision on the grievance. In this regard, the Arbitrator concluded that the contract clearly does not envision that the Union may serve any labor relations person at the regional level who might be involved in preparing the Regional Forester's response.

Further, the Arbitrator found that the contract procedure assures that the parties may carefully track the time limitations set forth in the grievance procedure. The Arbitrator determined that if the Union were allowed to claim compliance with the contract procedure by serving anyone who normally responds for the Regional Forester, a level of uncertainty would be introduced in the grievance procedure that would be contrary to the intent of the parties.

The Arbitrator also found that the Union failed to comply with the Step 3 grievance requirements because it did not include with its appeal the original grievance and underlying grievance information. The Arbitrator determined that the contract places that burden on the Union.

Accordingly, the Arbitrator concluded that the Union failed to comply with the Step 3 grievance procedure, that the Union's grievance was not timely and, therefore, that the grievance must be dismissed.

III. Preliminary Matter

In its opposition to the Union's exceptions, the Agency claims that the Union's exceptions were filed untimely. We reject the Agency's claim.

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). See U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 46 FLRA 878, 879 (1992) (HUD). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22. Further, the last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day that is neither a Saturday, Sunday, or a Federal legal holiday. 5 C.F.R. § 2429.21(a). The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).

In this case, the 30-day time for filing exceptions to the Arbitrator's award began December 11, 1993, and expired on Sunday, January 9, 1994. Because the award was served by mail, 5 additional days were added to the filing period. However, because the last day of the 30-day period was a Sunday, the time period was advanced until the next workday, Monday, January 10, 1994, prior to adding the additional 5 days. HUD, 46 FLRA at 880. With the additional 5 days, the time period was advanced to Saturday, January 15, 1994. Because this too was a nonworkday, the time limit for filing exceptions was again advanced to the end of the next workday. As Monday, January 17, 1994, was a Federal legal holiday, the next workday was Tuesday, January 18, 1994, the date on which the Union filed its exceptions. Accordingly, we find that the Union's exceptions were filed timely. See id.

IV. Positions of the Parties

The Union contends that the Arbitrator erred in dismissing the grievance based on his determination that the Union improperly served the wrong Agency official at Step 3 of the grievance procedure. The Union argues that the Arbitrator's award is: (1) internally inconsistent; and (2) fails to draw its essence from the parties' collective bargaining agreement. In the latter regard, the Union asserts that the award does not constitute a plausible interpretation of the agreement as a whole because the award ignores pertinent contract language. The Union claims that the contract places on the Agency a substantial portion of the burden of transmitting a grievance to the proper management official. The Union notes the Arbitrator's finding that the grievance was timely served on the management officials who normally respond to Step 3 grievances on behalf of the Regional Forester. The Union contends that a logical construction of the contract language requires service of a grievance on officials who "possess the authority to effectively resolve grievances." Exceptions at 6 (emphasis omitted).

The Agency contends that the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation and application of the provision of the parties' agreement before him and, therefore, do not provide a basis for review. The Agency further contends that disagreements with an arbitrator's findings and conclusions regarding compliance with the procedural requirements of a negotiated agreement do not ordinarily provide a basis for finding an award deficient.

V. Ana