40:0214(22)AR - - Air Force, HQ OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v40 p214
[ v40 p214 ]
The decision of the Authority follows:
40 FLRA No. 22
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Russell C. Neas filed by the Union 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 did not file an opposition to the Union's exceptions.
An employee filed a grievance over a 1-day suspension. The Arbitrator dismissed the grievance because he found that it was untimely filed at the second step of the grievance procedure under the parties' collective bargaining agreement. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient, and we will deny the exceptions.
II. Background and Arbitrator's Award
On September 27, 1988, the grievant received a notice of the Agency's decision to suspend him for 1 day based upon the Agency's conclusion that the grievant had been absent without leave for 45 minutes on July 11, 1988. The notice included specific guidance to the grievant on the filing of a formal grievance over the suspension in accordance with the parties' Master Labor Agreement (MLA). Article 5, Section 5.07(f) of the agreement provides that an employee who is suspended may "file a written grievance at Step 2 of the Negotiated Grievance Procedure contesting the action within 20 calendar days of receipt of the disciplinary action." Accordingly, the notice advised the grievant, among other things, that "[i]f you consider this action improper, you have the right to grieve under the negotiated grievance procedure contained in Article 6, Section 6.07, paragraph b, of the 1986 AFLC/AFGE Master Labor Agreement, within 20 calendar days of the effective date of this suspension. The formal written grievance must be submitted on the Standard Grievance Form, AFLC Form 913, to The Directorate of Distribution, Building 1, Room 204." Award at 6 (quoting Notice of Decision to Suspend for One Day).
The applicable language of Article 6, Section 6.07(b) states:
(1) Grievances over discipline taken under Article 5 . . . not resolved at Step 1 may be processed by the employee or a representative designated by the Union, with the Directorate, Staff Office, Tenant Commander . . . or equivalent level or their designee of his/her organization.
The grievant grieved the suspension by signing a standard grievance form and submitting it to his immediate supervisor on October 14, 1988. After examining the grievance, the supervisor returned the grievance form to the grievant because she was not authorized to process step 2 grievances under the parties' MLA. The supervisor offered to arrange for the grievant to get assistance and Union representation from the designated steward for the grievant's work area, but the grievant declined and requested that he be represented by a different steward whom he specifically named.
The representative designated by the grievant wrote and signed the step 2 grievance on November 21, 1988. On that same day, the step 2 grievance was received in the Directorate of Distribution. The Agency took the position that the grievance was untimely and also denied the grievance on the merits. The matter was not resolved and was submitted to arbitration.
The parties did not agree upon the issues to be decided by the Arbitrator. The Arbitrator framed the issues as:
Issue No. 1: Is the grievance arbitrable?
Issue No. 2: Was the one day suspension of [the grievant] for just cause? If not, what shall be the remedy?
Id. at 5.
The Arbitrator noted that the Union would not agree that there was a threshold issue of arbitrability. Rather, the Union took the position before the Arbitrator that the grievance was timely filed when the grievant submitted it to his immediate supervisor. The Union argued that there was no contractual requirement that step 2 grievances be filed with the Directorate of Distribution. The Union further contended that any delays in processing the grievance were caused by the immediate supervisor because she was responsible for contacting the Union to have a steward assigned and for arranging a meeting and she failed to carry out these asserted duties in a timely manner.
The Arbitrator stated that arbitrators universally agree that "contractual grievance procedure time limits should be strictly enforced. Exceptions to the general rule are made only when there are extreme mitigating circumstances or there has been a history of lax or nonuniform enforcement." Id. at 6. The Arbitrator concluded that there was "no persuasive evidence that either of those conditions were present in [the grievant's] case." Id.
The Arbitrator determined that he was bound by the relevant clause in Article 5, Section 5.07(f) of the MLA which set forth the 20-day time limit for filing grievances at step 2 of the grievance procedure. The Arbitrator noted that it was undisputed that the grievance was submitted to the grievant's immediate supervisor within the time limit and that it was over the time limit when received at the Directorate. The Arbitrator concluded that his "mandate in this case is to determine whether the initial submission of the grievance to [the grievant's immediate supervisor] was in compliance with the MLA". Id.
As an initial matter, the Arbitrator rejected the Union's argument that the delay in processing the grievance could be attributed to the grievant's supervisor's delay in arranging for the steward requested by the grievant to meet with the grievant. The Arbitrator noted that the grievant's supervisor offered to arrange for the grievant to meet with the steward assigned to his area. The Arbitrator concluded that "in all probability there would have been no delay except for [the grievant's] desire to change Stewards. . . . Had [the grievant] consulted with a Steward in the beginning the procedural defect probably would not have occurred. Competent representation was available to him from the start, but he declined to accept it[.]" Id. at 7. The Arbitrator pointed out that had the grievance not been returned, the grievant "could have presumed that his grievance had been timely and properly filed . . . . However, when it was returned to him without any Agency action, it must have occurred to him that he needed to resubmit the form to someone." Id.
The Arbitrator noted that even if the grievant did not read or was free to ignore the instructions in the notice of decision to suspend, "that would not have removed his obligation to comply with the MLA." Id. The Arbitrator concluded that although paragraph b of Article 6, Section 6.07 of the agreement contains no requirement that a grievance be filed at the specific location referenced in the notice, it does require that a grievance be filed at the Directorate level or its equivalent. The Arbitrator determined that "[t]hat provision obviously excludes a first level foreman as an appropriate recipient of a formal Step 2 grievance[.]" Id. at 8.
As his award, the Arbitrator concluded that the grievance was not arbitrable and, based upon that determination, that he could make no decision on the merits of the grievance.
III. The Union's Exceptions
The Union contends that the award is contrary to various provisions of the parties' MLA, the Americans with Disabilities Act of 1990 (ADA), and Agency policy.
The Union contends that under provisions of the MLA, the grievance was timely because the longstanding practice of the parties is for employees to fill out part I of the standard grievance form and give this to their first-level supervisor within the 20-day period and because the grievant should not be faulted for management's failure to allow him his chosen representative in a timely manner. The Union also argues that the issue of timeliness could not be considered because the Union had not mutually agreed to that issue as required under Article 7 of the MLA.
The Union also contends that the award is contrary to the ADA, Pub. L. No. 101-336, 104 Stat. 327 (1990). The Union argues that the grievant is mentally and physically handicapped within the meaning of the ADA and cannot be expected to comprehend the time requirements for filing grievances.
The Union further contends that the award is contrary to Agency policy because such policy states that "[t]here are no contractual time limits that would render a grievance untimely because of the delay in receiving a letter of designation and you cannot unilaterally close a grievance because you have not received a letter of designation." Exceptions at 5 (quoting September 19, 1988 letter from Chief, Labor Relations on the subject of Union steward list).
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has not established that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
We construe the Union's arguments with respect to the interpretation and application of various provisions of the MLA as assertions that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from the agreement, the Union 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 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. See U.S. Department of the Treasury, U.S. Customs Service, New York, New York and National Treasury Employees Union, 39 FLRA 278, 284 (1991).
The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator addressed pertinent provisions of the parties' agreement and concluded that the grievance was not arbitrable under the agreement because it was not timely filed at the appropriate step of the negotiated grievance procedure. We conclude that the Union's assertions amount 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 generally provides no basis for finding an award deficient. See U.S. Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 973, 977 (1990). Accordingly, we will deny this exception.
We conclude that the Federal Government is not an employer covered by the ADA and that, consequently, no basis is provided for finding the award contrary to the ADA. Section 101(5)(B)(i) of the Act provides as follows:
The term "employer" does not include --
(i) the United States . . . .
104 Stat. at 330. However, because the Federal Government is covered by the Rehabilitation Act of 1973, 29 U.S.C. § 791, on which the employment provisions of the ADA are based, we will construe the Union's exception as an assertion that the award is contrary to the Rehabilitation Act.
We conclude that the Union fails to establish that the award is contrary to the Rehabilitation Act. Although the Union suggests that the award is deficient because the grievant was a handicapped employee, who, as a result of his handicap, could not comprehend the 20-day filing period requirement for his grievance, the Union provides no support for its assertion and none is apparent.
The Rehabilitation Act imposes a duty on Federal agencies to make reasonable accommodations to the limitations of their qualified handicapped employees unless they can show that to do so would impose undue hardship on their operations. See Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989). The Union fails to establish that the grievant is a qualified handicapped employee, within the meaning of the Act, who is entitled to reasonable accommodation. Even assuming that the grievant is a qualified handicapped employee, the Union fails to specify what reasonable accommodation the grievant was entitled to that the Agency failed to provide. In this respect, we note the Arbitrator's findings that the grievant's supervisor offered to provide Union representation by the assigned steward, but that the grievant "declined to accept it and therefore must assume the responsibility for the results." Award at 7. Consequently, we find no basis in the Act for excusing the grievant's untimely filing of the grievance. Accordingly, we will deny this exception.
We also conclude that the Union fails to establish that the September 1988 letter concerning steward lists provides a basis for finding the award contrary to Agency policy. As quoted by the Union, the policy letter applies only to grievances in which there has been a delay in receiving a letter of designation of representative. The Union does not establish, and it is not otherwise apparent, that the policy letter addresses the situation in this case in which the