50:0244(43)AR - - AFGE, Local 916 and Defense Distribution Depot. Oklahoma City, OK - - 1995 FLRAdec AR - - v50 p244

[ v50 p244 ]
The decision of the Authority follows:

50 FLRA No. 43














March 15, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Don J. Harr filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

The Arbitrator concluded that the parties were not bound by a supplemental collective bargaining agreement between the American Federation of Government Employees, Local 2501 and the Defense Depot Memphis, Memphis, Tennessee (the Memphis Supplement).(1)

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

A grievance was filed over the Agency's denial of two requests for administrative leave based on an application of the Memphis Supplement. Prior to arbitration, the Agency provided the disputed administrative leave. In his decision, the Arbitrator stated the issue as that set forth by the Union: "Are the Parties bound by [the Memphis Supplement]? If not, what shall the remedy be?" Award at 2.

The Arbitrator rejected the Agency's contention that the original grievance was rendered moot because the Agency had provided administrative leave. The Arbitrator found that when management relied on the Memphis Supplement to deny the request for administrative leave, the applicability of that agreement became an integral part of the grievance and was properly before him. The Arbitrator also rejected the Agency's contention that because the Union had failed to file a grievance when it was first advised of the Agency's intention to apply the Memphis Supplement, the grievance was untimely.

The Arbitrator concluded that testimony "confirmed that [the parties] could not come to a written agreement over the use of the Memphis Supplement." Id. at 4. The Arbitrator also concluded, citing various provisions of the MLA, including "MOU 90-1," that the Agency had violated "Article 42, 44 and the memorandums of understanding contained in the Master Labor Agreement" and that the Union and the Agency were not bound by the Memphis Supplement. Id. at 6.

III. Exceptions

A. Agency's Contentions

The Agency asserts that the Arbitrator exceeded his authority by ruling on the applicability of the Memphis Supplement because the entire grievance was rendered moot when the Agency granted administrative leave to the grievants. The Agency also argues that the Arbitrator exceeded his authority by failing to confine his award to the two individual grievants, and that the "normal discretion allowed arbitrators on timeliness issues" is unwarranted in this case. Exceptions at 12.

The Agency also contends that the award fails to draw its essence from the MLA because the Arbitrator cited MOU 90-1, which does not apply to the employees in this case.

Finally, the Agency argues that the award is based on the following nonfacts: (1) the Arbitrator's implicit finding that the Union was not aware that management was applying the Memphis Supplement months before the grievance was filed; and (2) the Arbitrator's presumed finding that MOU 90-1 covers the employees in this case.

B. Union's Opposition

The Union asserts that the Agency is attempting to relitigate this case. The Union also claims that an agreement that covered the employees when they were employed by the Air Force is still in effect and requests that the Authority clarify whether the parties are bound by that agreement.(2)

IV. Analysis and Conclusions

A. Timeliness

An arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to challenge. American Federation of Government Employees Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such determination may be found deficient only on grounds other than grounds that challenge the determination of procedural arbitrability itself. Id. at 186. The Agency's assertion that the Arbitrator found that the issue of the Memphis Supplement was timely raised constitutes a challenge to the Arbitrator's determination regarding the procedural arbitrability of the grievance and does not establish that the award is deficient.

B. Arbitrator's Authority

An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See, for example, Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518 (1986) (Air Force Space Division). In the absence of a stipulated issue, we accord substantial deference to an arbitrator's formulation of an issue that may include, as here, adoption of a party's statement of the issue. U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, 48 FLRA 74, 80 (1993). We grant the arbitrator the same broad discretion to fashion appropriate remedies for contract violations. Air Force Space Division, 24 FLRA at 519.

The parties did not stipulate the issue to be resolved and the award, including the remedy, is directly responsive to the issue as framed by the Arbitrator. Consequently, the Agency has failed to establish that the Arbitrator exceeded his authority.

C. Nonfact

To establish that an award is based on a nonfact, the party making the allegation must dem