51:0576(50)AR - - AFGE Local 1923 and HHS, Health Care Finance Administration, Baltimore, MD - - 1995 FLRAdec AR - - v51 p576



[ v51 p576 ]
51:0576(50)AR
The decision of the Authority follows:


51 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCE ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

0-AR-2684

_____

DECISION

November 30, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles E. Donegan 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance contesting the Agency's failure to provide the grievant a temporary promotion. For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The Union filed a grievance in April 1993, claiming that the grievant, a GS-12, had been performing higher-graded GS-13 duties since September 1989, and was entitled, under Article 26, Section 5 of the parties' agreement, to a temporary promotion to the higher-graded position.(1) The grievance was submitted to arbitration.

The Arbitrator stated that the grievance was not timely filed because the grievant had "slept on his alleged rights for approximately five (5) years." Award at 38. Nevertheless, the Arbitrator determined that the grievance was arbitrable. On the merits, the Arbitrator found that the grievant was not entitled to a temporary promotion. Crediting the testimony of the grievant's supervisor and an Agency classification specialist, the Arbitrator found that the grievant "did not perform any significant duties of a specific GS-13 position for any substantial period of time." Id. at 40.

III. Positions of the Parties

A. Union

The Union claims that the Arbitrator exceeded his authority in finding the grievance untimely. According to the Union, the Arbitrator's finding is inconsistent with Article 24, Section 5 of the parties' agreement, which permits a grievance "concerning a continuing practice or condition [to be] presented at any time[,]" and Article 25, Section 4.H, which provides that an arbitrator has no authority to "amend or modify any provision of this Agreement." Exceptions at 1.

The Union also asserts that the Arbitrator's conclusion that the grievant did not perform higher-graded work is based on nonfacts. The Union contends that the Arbitrator's reliance on the testimony of the grievant's immediate supervisor and the classification specialist in reaching this conclusion was misplaced because that testimony is contrary to previous oral and written statements made by those individuals.

B. Agency

The Agency asserts that the Union's exception to the Arbitrator's finding that the grievance was untimely is moot because the Arbitrator addressed the merits of the grievance. Moreover, the Agency contends that the Arbitrator correctly interpreted the parties' agreement in finding the grievance untimely.

The Agency also contends that the Union has not demonstrated that the award is based on nonfacts. In particular, the Agency claims that the previous statements of the grievant's supervisor and the classification specialist that are relied on by the Union either are consistent with the Arbitrator's award or were quoted out of context by the Union.

IV. Analysis and Conclusions

A. Exceptions to the Arbitrator's Untimeliness Finding Provide No Basis for Finding an Award Deficient

The Arbitrator stated that "the grievance was not timely filed." Award at 37. However, it is clear that the Arbitrator did not conclude that the grievance was not arbitrable. In fact, the Arbitrator specifically concluded that the grievance was "arbitrable" and decided it on its merits. Id. at 36. As the Arbitrator did not dismiss the grievance as untimely filed, the exception to the Arbitrator's statement regarding the timeliness of the grievance does not provide a basis for finding the award deficient. See, e.g., 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, 592-94 (1992).(2)

B. The Award Is Not Based on Nonfacts

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact. See Electronics Corp. of America v. IUE, AFL-CIO, Local 272, 492 F.2d 1255 (1st Cir. 1974).

The Union asserts that the Arbitrator's conclusion that the grievant did not perform GS-13 work was based on nonfacts contained in the testimony of Agency witnesses at the arbitration hearing. However, the Union has not established that the disputed testimony, or the Arbitrator's conclusions that the testimony established that the grievant did no