46:0061(4)AR - - AFGE, Local 2142 and Corpus Christi Army Depot, Corpus Christi, TX - - 1992 FLRAdec AR - - v46 p61

[ v46 p61 ]
The decision of the Authority follows:

46 FLRA No. 4





LOCAL 2142










October 6, 1992


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator David R. Acheson 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 filed an opposition to the Union's exceptions.

An employee filed a grievance challenging the Agency's failure to temporarily promote him during the time he performed higher-graded duties. The Arbitrator sustained the grievance, in part, and ordered a make-whole remedy for a certain period of time.

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

According to the Arbitrator, the grievant, a WG-5 employee, was detailed to a WG-7 position on June 4, 1990, and performed WG-7 duties until November 19, 1990, when the Agency directed that the assignment be terminated. The grievant filed a grievance alleging that the WG-7 assignment did not end on November 19, 1990, and requesting WG-7 compensation for all the time he spent performing higher-graded duties. In response, the Agency acknowledged that the grievant had performed WG-7 duties without proper documentation. The Agency offered to detail the grievant, retroactively, from June 4 until September 1, 1990, and temporarily promote the grievant to WG-7 from September 2 to November 19, 1990. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator framed the issues as follows:

1. Was the remedy provided by the Agency for the stipulated contract violation proper?

2. Can the Arbitrator properly consider the allegations of the Union that assignment to WG-07 duties continued beyond the substance of this grievance?

Award at 7.

As to the first issue, the Arbitrator determined that, consistent with the parties' collective bargaining agreement, the Agency properly detailed the grievant and converted the detail to a temporary promotion on the 91st day of the detail. According to the Arbitrator, in the absence of a "punitive damages provision in the contract for management['s] deliberate or inadvertent violation of the provisions of the Collective Agreement, this is the maximum remedy available." Id. at 9. As his award, the Arbitrator stated that the Agency provided the "maximum remedy possible to the [g]rievant," and that "[t]he grievant should be . . . made whole for all time worked at the WG-07 level during the time frame, June 4, 1990, through November 19, 1990." Id. at 10.

With respect to the second issue, the Arbitrator concluded that the grievance was "limited to the issue of proper remedy . . . for the period of June 4, 1990 until November 19, 1990." Id. Accordingly, the Arbitrator stated that "[t]he grievance . . . to cover ongoing assignments beyond November 19, 1990 is denied." Id. The Arbitrator noted that the Union could file a "new grievance[] if a dispute exists as to the [g]rievant's ongoing improper assignments." Id.

III. Positions of the Parties

A. Union

The Union contends that the Arbitrator incorrectly "limit[ed] the period of time" that the grievance covered. Exceptions at 1. According to the Union, November 19, 1990, is "not the limit of the . . . grievance" and the Arbitrator "heard unrefuted testimony" and "accepted documented evidence" that the grievant was assigned higher-graded duties after that date. Id. at 1-2.

The Union also contends that the award is contrary to the parties' collective bargaining agreement, Federal Personnel Manual (FPM) chapter 335, subchapter 1-5[a](1), and 5 C.F.R § 335.102(f)(1). In this connection, the Union argues that the Agency's violations of the parties' agreement constituted an unjustified and or unwarranted personnel action within the meaning of the Back Pay Act. The Union asserts that, in view of the Agency's violations of the parties' agreement as well as law and regulation, the Arbitrator should have awarded the grievant a temporary position, with backpay and interest, from November 19, 1990 to July 16, 1991.

B. Agency

The Agency contends that the Union's exceptions are untimely. The Agency also contends that the Union has not "established that the [a]ward [is] contrary to any law, rule, or regulation." Opposition at 1.

IV. Analysis and Conclusions

A. The Exceptions Are Timely

Under section 2425.1(b) of the Authority's Rules and Regulations, the time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). Absent evidence to the contrary, the date of an arbitration award is presumed to be the date of service. See U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 326 (1991). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

In this case, the Union established that the Arbitrator's award was served on it by mail on March 9, 1992. Therefore, any exception to the award had to be filed with the Authority no later than April 13, 1992, to be considered timely. 5 C.F.R. §§ 2425.1(b), 2429.21 and 2429.22. As the Union's exceptions were filed (postmarked) on April 7, 1992, they are timely.

B. The Award Is Not Based on a Nonfact

We construe the Union's assertion that the Arbitrator "misinterpreted" November 19, 1990, as the latest date encompassed by the grievance as a contention that the award is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the awar