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