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35:0973(103)AR - - Defense Mapping Agency Aerospace Center, St, Louis, MO and NFFE Local 1827 - - 1990 FLRAdec AR - - v35 p973

[ v35 p973 ]
The decision of the Authority follows:

35 FLRA No. 103








LOCAL 1827




May 1, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Robert W. Smedley filed by the Union pursuant to 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 exception.(1)

An employee filed a grievance over his poor performance rating and work shift reassignment. The Arbitrator dismissed the grievance because he found that it was untimely filed under the parties' agreement. In its exception, the Union claims that the Arbitrator's award violates the parties' collective bargaining agreement because it contravenes the parties' contractual intent. We conclude that the Union's exception provides no basis for finding the award deficient and we deny the exception.

II. Background and Arbitrator's Award

By notice dated April 21, 1989, the grievant was informed that he would be reassigned from the evening shift to the day shift. The grievant also received a poor performance rating which was reviewed on April 24, 1989. The grievant's reassignment became effective on May 7, 1989.

On May 15, 1989, the grievant filed a grievance protesting the shift reassignment and poor performance rating. The parties were unable to resolve the dispute and submitted the grievance to arbitration.

The Arbitrator determined that the threshold issue concerned the timeliness of the grievance. Article 8, Section 8-4 e. of the parties' collective bargaining agreement requires grievances to be filed within 21 calendar days of (1) the date of the occurrence or (2) the date on which the aggrieved party becomes aware of the matter grieved. Section 8-9 b. states that "[f]ailure on the part of the party filing the grievance to meet any of the established time limits shall cause the grievance to be terminated." Award at 5.

The Union contended that the grievance was timely filed because the filing deadline should be measured from either the effective date of the reassignment or the date on which the performance rating that contributed to the reassignment was reviewed. The Agency claimed that the grievance was untimely filed because the deadline for filing was May 12, which was 21 days after the notice of reassignment.

Noting that the grievance was filed on Monday, May 15, only 1 work day after the deadline as determined by the Agency, the Arbitrator made a "preliminary finding" at the hearing that the alleged untimeliness of the grievance was "a de minimus [sic] lapse" and proceeded to hear the merits of the case, "reserving the timliness [sic] question for later deliberation." Award at 6.

Based on testimony given at the hearing and the parties' post-hearing briefs, the Arbitrator noted in his award that Section 8-6 e. of the parties' agreement required him to rule on the timeliness issue prior to deciding the merits of the case. Article 8, Section 8-6 e. states:

Questions of Grievability. In the event either party should declare a grievance non-grievable or non-arbitrable, the original grievance shall be considered amended to include that issue and all disputes of grievability/arbitrability shall be referred to the arbitrator as a threshold issue in the related grievance. The arbitrator will be instructed to rule on the grievability/ arbitrability issue prior to considering the merits of the grievance. Should the arbitrator find that the issue is not grievable/arbitrable, he/she shall not address the merits of the grievance and shall dismiss the same.

Id. at 6; Opposition, Enclosure 3.

The Arbitrator ruled that the grievance was untimely filed and stated that "[f]urther deliberation makes it clear that the timeliness issue question cannot be lightly put aside as de minimus [sic]." Id. at 8. He determined that "[t]he contract [was] definite, precise and strong requiring (1) [grievances to be filed within] the 21 day limit, and (2) if not met the grievance to be terminated, and (3) dismissed." Id., citations omitted. Finding that the "[c]ontractual history supports the parties' resolve to make the time limit firm," the Arbitrator concluded that the agreement "leaves no room for debate or musing about ambiguity or equivocation of the parties." Id. at 9. Accordingly, the Arbitrator dismissed the grievance.

III. Positions of the Parties

A. Union's Exception

The Union claims that the award violates Article 8, Section 8-6 e. of the parties' collective bargaining agreement.(2) The Union argues that that section requires the Arbitrator to "decide the timeliness issue in its entirety before moving on to the merits [of the case]." Exception at 2. The Union asserts that "[t]he Parties made the Arbitrator well aware of [the intent of Section 8-6 e.] when they insisted on a threshold bench ruling on the timeliness question before going on to the merits." Id. at 3-4.

The Union contends that the Arbitrator issued a bench ruling at the hearing finding that "even if the Union's grievance was untimely the violation was de minimus [sic]." Id. at 2, 4. The Union argues that "[b]y so ruling, the Arbitrator decided the timeliness issue in favor of the Union and instructed the parties to present the merits of the case." Id. at 3. The Union asserts that the Arbitrator's actions "complied with the contractual intent [of Section 8-6 e.] by deciding the timeliness question before hearing the merits." Id. at 4. The Union contends that it assumed that the Arbitrator requested the parties to address the timeliness issue in their post-hearing briefs "simply [because he] wanted requisite authorities for citation in his decision." Id. at 3.

The Union argues that, once the Arbitrator ruled on the timeliness question, he "[w]as not free to hear the merits, reverse himself on the timeliness question and, not address the merits." Id. at 4. The Union contends that the Arbitrator "clearly contravened the Parties' contractual intent . . . and did exactly what the Parties sought to avoid by negotiating [Section 8-6 e.]." Id. The Union requests that the Authority remand the case to the Arbitrator for a decision on the merits.

B. Agency's Opposition

The Agency disputes the Union's contention that the Arbitrator's statement at the hearing regarding the timeliness of the grievance was final. The Agency contends that the Union's exception provides no basis for setting aside the award and merely constitutes disagreement with the Arbitrator's ruling on procedural arbitrability and with the Arbitrator's interpretation of the parties' agreement.

IV. Analysis

Under section 7122(a) of the Statute, an award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases.

The Union does not contend that the award is contrary to any law, rule, or regulation. The Union contends that the award is deficient because the Arbitrator violated the parties' collective bargaining agreement by "clearly contraven[ing] the Parties' contractual intent." Exception at 4. The Union's exception amounts to nothing more than disagreement with the Arbitrator's interpretation of the procedural requirements of the collective bargaining agreement and the application of those requirements to the circumstances of the grievance before him. The Authority has consistently held that disagreement with an arbitrator's determinations concerning the procedural arbitrability of a grievance provides no basis for finding an award deficient. See Oklahoma City Air Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 568 (1990).

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

1. The Agency filed an exception to the portion of the Arbitrator's award requiring it to pay one-half of the Arbitrator's fee. Subsequently, the Agency requested permission to withdraw its exception. The Agency's request is granted.

2. The Union inadvertently refers to the section in dispute as Article 8-5(e). Section 8-5 does not contain a section "e." and the language quoted by the Union is the text of Section 8-6 e.