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The decision of the Authority follows:
39 FLRA No. 95
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
FORT RUCKER, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 12, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to the award of Arbitrator Felix A. Nigro. The grievant filed a grievance alleging that she had performed higher-graded duties for 23 months, but was paid for only 4 months at the higher salary. The Arbitrator determined that the grievance was not arbitrable because it had not been timely filed, and he denied the grievance.
The Union filed exceptions to the award under 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 exceptions.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On January 23, 1990, the grievant filed a grievance alleging that she had performed higher-graded duties from May 5, 1986, through April 1, 1988. The grievant further alleged that she was paid at the higher grade for only 4 months during that time period. The grievant contended that she was not "aware that she was entitled to 19 months back pay with interest under the Back Pay Act." Award at 1.
The Agency contended that the grievance was not timely filed under Article 36, Section 9 of the parties' collective bargaining agreement.(*) The Union contended that the grievance was timely filed because the grievant was not aware of her rights under the Back Pay Act until the grievance was filed.
The Arbitrator found that the grievance was not filed within the time limit set forth in the parties' agreement. Therefore, the Arbitrator concluded that the grievance was not arbitrable and he denied the grievance. The Arbitrator stated that "[a]s a supervisor and employee of some years, the grievant should have, or must have, known about any rights under the Back Pay Act long before she filed her grievance on January 23, 1990." Id.
III. Position of the Parties
A. The Union
The Union contends that the award is contrary to law, rule or regulation. The Union argues that because the grievant was denied wages to which she was entitled under the Fair Labor Standards Act of 1938, as amended, (the Act), the Act controls whether the grievance was timely filed. The Union also argues that a "reasonable interpretation" of the parties' agreement leads to a conclusion that the "[a]greement must . . . yield to higher authority." Exceptions at 2. The Union also contends, in this regard, that the Arbitrator's interpretation of the agreement constituted "harmful error." Id. at 3. Finally, the Union asserts that the Arbitrator based his decision on "facts not in evidence" concerning the grievant's knowledge about her rights. Id.
B. The Agency
The Agency contends that the Union's exceptions should be denied because they constitute nothing more than disagreement with the findings of the arbitrator.
IV. Analysis and Conclusions
We reject the Union's contention that the grievance was timely filed pursuant to the Fair Labor Standards Act, as amended, and therefore, the "statute of limitations contained in the [c]ollective [a]greement must defer to statutory preemption." Exceptions at 3. The Union has not shown, and it is not otherwise apparent, that time periods applicable to lawsuits under the Act apply to grievances filed under a collective bargaining agreement.
We construe the Union's arguments regarding the Arbitrator's interpretation of the parties' agreement as contentions that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990).
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator addressed, and rejected, the Union's argument that the grievance was timely filed because the grievant's lack of knowledge about her rights under the Back Pay Act constituted a "'continuing condition.'" Award at 1 (quoting parties' agreement). Nothing in the Arbitrator's interpretation of the relevant portion of the parties' agreement is irrational or implausible. Accordingly, there is no basis on which to conclude that the award fails to draw its essence from the agreement.
Finally, we construe the Union's argument that the Arbitrator relied on facts that were not in evidence as a contention that the award is based on nonfacts. For an award to be found deficient on this basis, a party must demonstrate that the central fact underlying the award is clearly erroneous and is a gross mistake of fact, but for which a different result would have been reached. For example, U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183, 1187 (1990).
The Union asserts that the Arbitrator erred in basing his award on his "assum[ption] . . . that . . . long[-]time employees are educated on circumstances giving rise to remedies[.]" Exceptions at 3-4. Contrary to the Union's assertion, however, the Arbitrator's award evidences no such assumption. In addressing the Union's argument that the grievance was timely filed because the grievant's lack of knowledge about provisions of the Back Pay Act constituted a continuing condition, the Arbitrator stated that the grievant "should have, or must have, known" of her rights under the Back Pay Act. Award at 1. There is no basis on which to conclude that the Arbitrator based his award on an assumption that the grievant was aware of her rights under the Back Pay Act. Accordingly, even if such assumption were clearly erroneous, the Union has not demonstrated that the assumption was a central fact underlying the award. The Union has not demonstrated, therefore, that the award is based on a nonfact.
In our view, the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation of the parties' agreement and with his findings and conclusions regarding the grievant's failure to comply with the procedural requirements of the agreement. Exceptions merely disagreeing with arbitral determinations regarding the procedural arbitrability of a grievance generally provide no basis for finding an award deficient. For example, U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 35 FLRA 372, 374 (1990); Naval Plant Representative Office and National Association of Government Employees, Local R1-143, 34 FLRA 234, 236 (1990). Accordingly, we will deny the exceptions.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ Article 36, Section 9 provides that "[g]rievances resulting from a one-time act or decision must be initially presented within 20 calendar days after learning about the matter giving rise to the grievance. Grievances resulting from continuing conditions may be presented at any time." Award at 1.