United Power Trades Organization, (Union) and United States Department of the Army, United States Army Corps of Engineers, Northwestern Division, Pacific Region, Portland District, Portland, Oregon (Agency)

[ v63 p208 ]

63 FLRA No. 80

UNITED POWER
TRADES ORGANIZATION
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
UNITED STATES
ARMY CORPS OF ENGINEERS
NORTHWESTERN DIVISION
PACIFIC REGION, PORTLAND DISTRICT
PORTLAND, OREGON
(Agency)

0-AR-4252

_____

DECISION

April 15, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jonathan S. Monat 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. [n1] 

      As relevant here, the Arbitrator determined that the Union's grievance was untimely and that the Agency had not committed any unfair labor practices (ULPs). For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency repudiated an MOU that was agreed to on December 19, 2005, by refusing to sign it. The MOU was intended to address the impact of staffing changes implemented by the Agency at its activity at Bonneville Dam. See Exceptions, Union Ex. 2(a) at 1-3. The Union filed its grievance pursuant to the parties' negotiated grievance procedure set forth under Article 6.9 of the parties' agreement. [n2]  See Exceptions, Union Ex. 2(e) at 1-6; Union Ex. 2(f) at 2. The grievance was not resolved and was submitted to arbitration.

      The parties were unable to stipulate to the issues, and agreed that the Arbitrator should frame them. See Award at 2. The Arbitrator did not frame any issues for resolution but did describe the parties' proposed issues in the award. The Arbitrator noted that the Agency proposed the following issues: (1) "did [the Agency] send to a negotiation employees who lacked authority to negotiate"; and (2) "did [the Agency] repudiate an agreement by refusing to sign a document memorializing the agreement[.]" See id. at 2-3. The Arbitrator noted that the Union proposed ten issues -- five alleging ULPs and five alleging violations of the parties' agreement. [n3]  See id. at 3. The Agency claimed that the Union's grievance was not timely. See id.

      The Arbitrator concluded that the Union's grievance was not timely filed. In this regard, the Arbitrator found that, under Article 6.9 of the parties' agreement, the Union is required to file a grievance within thirty days of either the incident giving rise to the grievance or from when the Union first learns about the incident. See id. at 4, 6. The Arbitrator found that the incident giving rise to the Union's grievance occurred when the parties agreed to the MOU on December 19, and that the grievance filed on March 2, 2006, was therefore untimely. Id. at 6.

      The Arbitrator also concluded that the Agency did not act or bargain in bad faith, without full authority, or repudiate the agreement. See id. [ v63 p209 ]

III.     Positions of the Parties

A.     Union's Exceptions

      The Union challenges the Arbitrator's finding that the grievance was untimely. Specifically, the Union alleges that the Arbitrator did not identify a triggering event or the relevant sections of the parties' agreement. Exceptions at 3. The Union further argues that the Arbitrator did not address its arguments that the Agency's violation was "ongoing," that the third-step deciding official accepted the grievance as timely, and that the Arbitrator determined that the Agency did not engage in bad faith bargaining after he found that the grievance was untimely. See id. at 3-4. The Union further alleges that the Arbitrator did not address its proposed issues or identify the issues he would resolve. See id. at 4. According to the Union, the award should be remanded for a decision on the grievance.

B.     Agency's Opposition

      The Agency argues that the facts underlying the award establish that the Union's grievance was filed more than thirty days after it became aware of the issues set forth in its grievance, and, as such, the Arbitrator correctly found that the Union's grievance was untimely. See Opposition at 1, 2-3. The Agency contends that an arbitrator's finding that a grievance is untimely is a determination as to the procedural arbitrability and that an arbitrator's procedural arbitrability determination may only be challenged on grounds that do not directly challenge that determination. See id. at 2 (citation omitted). The Agency asserts that the Union's arguments constitute nothing more than direct challenges to the Arbitrator's procedural arbitrability determination and should be denied. See id.

      The Agency also asserts that the Arbitrator denied the merits of the Union's grievance, and that the Union's exceptions do not provide a basis for overturning the award. See id. at 3-4. Further, the Agency claims that the parties' agreement precludes arbitration of matters that arise after the grievance was filed. See id. at 4-5, 7-8.

IV.     Analysis and Conclusion

A.     The Arbitrator's award constitutes a procedural arbitrability determination.

      An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arb