American Federation of Government Employees, Local 933 (Union) and United States, Department of Veterans Affairs, Medical Center, Detroit, Michigan (Agency)

[ v58 p480 ]

58 FLRA No. 118

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 933
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
DETROIT, MICHIGAN
(Agency)

0-AR-3585

_____

DECISION

April 18, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Sheldon H. Adler filed by the Union under § 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 dismissed the grievance, finding that it was untimely filed under the parties' agreement. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      As relevant here, in 1999, the Union filed a grievance seeking hazardous duty pay (HDP) for asbestos exposure beginning in 1993. The grievance was unresolved and submitted to arbitration.

      The Arbitrator dismissed the grievance, concluding that it was untimely filed. In reaching that conclusion, the Arbitrator applied Article 42 of the parties' agreement, which provides that a grievance must be filed within "thirty (30) calendar days of the date that the employee or union became aware of the act or occurrence or anytime if the act or occurrence is of a continuing nature." Award at 8. The Arbitrator rejected the Union's claim that the grievance was timely because [ v58 p481 ] the events giving rise to the grievance were of a continuing nature. The Arbitrator found instead that for the grievance to be timely, it must have been filed within thirty days after June 8, 1993 -- the date the regulations providing entitlement to HDP became effective. Id. at 27. Accordingly, the Arbitrator concluded that the grievance, which was filed in June 1999, was untimely under the parties' agreement.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the Arbitrator's conclusion that the grievance was untimely filed fails to draw its essence from the parties' agreement and "has absolutely no support in the record," because the record establishes that the events giving rise to the grievance were continuous. Exceptions at 6. The Union further asserts that the Arbitrator "strayed far outside his authority" in determining that the grievance should have been filed within thirty days after the date the HDP regulations became effective. Id. at 7. In addition, the Union claims that the timeliness conclusion is inconsistent with the Back Pay Act, 5 U.S.C. § 5596 [n1] , and the Barring Act, 31 U.S.C. § 3702(b)(1) [n2]  , because grievances seeking back pay are subject to a six-year statute of limitations under the Back Pay Act. Relying on Allen Park Veterans Admin., Med. Ctr., 34 FLRA 1091 (1990), the Union asserts that the grievance was timely because it was filed within six years of the date the HDP entitlement regulations were implemented. Exceptions at 7-8. Finally, addressing the merits of the grievance, the Union asserts that the grievants are entitled to HDP under the parties' agreement and law.

B.     Agency's Opposition

      The Agency asserts that the Arbitrator's conclusion that the grievance was untimely is a procedural arbitrability determination, which may be challenged only on grounds that do not challenge the determination itself. The Agency further claims that the Arbitrator's timeliness conclusion is consistent with the parties' agreement. In addition, the Agency asserts that the Union has failed to establish that the timeliness conclusion is contrary to law, and that the Union's reliance on Allen Park is misplaced.

IV.     Analysis and Conclusions

      An arbitrator's determination regarding the timeliness of a grievance under a collective bargaining agreement constitutes a procedural arbitrability determination, which may be found deficient only on grounds that do not challenge the determination itself. NFFE, Local 422, 56 FLRA 586, 587 (2000); AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). The Authority has found that the grounds on which such award may be found deficient include arbitrator bias or a finding that the arbitrator exceeded his/her authority. In addition, the Authority has resolved the merits of contrary to law claims challenging an arbitrator's procedural arbitrability determination. See NFFE, Local 422, 56 FLRA at 587; Nat'l Gallery of Art, Wash., D.C., 48 FLRA 841, 845 (1993); United States Dep't of the Army, Aviation Ctr., Fort Rucker, Ala., 39 FLRA 1113, 1115 (1991). This is consistent with the fact that statutory, procedural requirements may be established that apply to negotiated grievance procedures and recognizes that a statute could be enacted establishing a filing period for grievances. See, e.g., 5 U.S.C. § 7121.

A.     The award draws its essence from the parties' agreement and is not based on a nonfact

      The Union asserts that the Arbitrator's conclusion that the grievance was untimely filed fails to draw its essence from the parties' agreement. In addition, the Union asserts that the Arbitrator erred in finding that the events giving rise to the grievance were not of a continuing nature. We construe this latter assertion as a claim that the award is based on a nonfact.

      The Union's essence and nonfact claims directly challenge the Arbitrator's determination that the grievance was not timely filed under Article 42 of the parties' agreement. As set forth above, an arbitrator's determination regarding the timeliness of a gr