52:0042(3)AR - - AFGE, Local 916 and DOD, DLA, Defense Distribution Region West, Defense Distribution Depot, Oklahoma, Oklahoma City, OK - - 1996 FLRAdec AR - - v52 p42
[ v52 p42 ]
The decision of the Authority follows:
52 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION REGION WEST
DEFENSE DISTRIBUTION DEPOT OKLAHOMA
OKLAHOMA CITY, OKLAHOMA
August 16, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator David R. Acheson 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 determined that the Union's grievance was not arbitrable because it was not timely filed. For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance contending that the Agency had violated the parties' Master Labor Agreement (MLA) by allegedly conducting a classification survey without officially notifying the Union.(1) The grievants claimed that they became aware of the survey on March 10, 1995, and promptly filed a grievance thereafter. They further argued that the Union should have been notified of the alleged classification survey so as to have had a representative present at its opening, as required by the parties' agreement.
The Agency denied that a classification survey, within the meaning of the parties' agreement, had occurred. The Union then submitted the matter to arbitration, where the Arbitrator framed the issues as follows:
1. Is the matter procedurally arbitrable due to the fact the grievance was initiated more than twenty (20) days after the "opening" of the so-called "classification survey?"(2)
2. Did the Agency violate the agreements between the parties when they conducted "an arguably termed a [sic] 'classification survey'" in September of 1994? If so, what shall the remedy be?
Award at 2.
The Arbitrator found that the grievance was untimely filed and that the Union had been well aware of the "survey" prior to March 10, 1995. Specifically, the Arbitrator noted that, although the Union "was aware of the desk audit late in the year of 1994," it filed the grievance on March 29, 1995, well in excess of the twenty-day limitation set forth in the parties' agreement. Id. at 3. As a result, the Arbitrator found that the grievance was not procedurally arbitrable.
A. Union's Exceptions
The Union argues that it became aware of the "classification survey" on March 10, 1995, and that, therefore, the grievance filed on March 29, 1995, was timely. Furthermore, the Union argues that the award fails to draw its essence from the parties' agreement because the award does not represent a plausible interpretation of the MLA. According to the Union, management failed to timely raise the issues of grievability and arbitrability.
B. Agency's Opposition
The Agency argues that the Union's exceptions constitute disagreement with the Arbitrator's findings of fact and, as such, provide no basis for review. Additionally, the Agency argues that the Arbitrator's interpretation of the MLA is plausible because there is no time limit in the agreement on management's raising the issue of arbitrability or grievability.
IV. Analysis and Conclusions
An arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to direct challenge. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such determinations can be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. Id. at 186. The Union's exception that the grievance was timely filed, as well as the contention that the award fails to draw its essence from the parties' agreement, directly challenge the Arbitrator's determination of procedural arbitrability. Id. See also American Federation of Government Employees, Local 3614, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 51 FLRA No. 128, slip op. at 3 (1996). As such, these exceptions provide no basis on which to find the award deficient.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 12, Section 5 of the MLA states, in relevant part:
B. When a classification survey at a PLFA involves unit employees, the DLA Council Local is permitted to have an observer present at the opening of the survey . . . . The supervisors and the DLA Council Local will be notified in advance of classification survey openings.
Union Exceptions, Attachment 7 at 21.
2. Article 36, Section 8 of the MLA states, in relevant part:
A. Time frames may be extended by mutual agreement . . . .
Step 1. The informal grievance must be initiated within 20 calendar days from the date the grievant(s) became aware of the act or occurrence that gave rise to the grievance.
Union Exceptions, Attachment 7 at 74.