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51:0514(43)AR - - AFGE Local 1945 and Army, Anniston Army Depot, Anniston AL - - 1995 FLRAdec AR - - v51 p514

[ v51 p514 ]
The decision of the Authority follows:

51 FLRA No. 43





LOCAL 1945










November 13, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John A. Menzies 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator determined that the Union's grievance was not arbitrable because it was not timely filed. For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute and, therefore, we deny the Union's exceptions.

II. Arbitrator's Award

As a result of a realignment and reduction in force, the Agency reassigned certain employees from WG-11 Welder positions to WG-10 Welder positions. Thereafter, the Agency eliminated all WG-11 Welding Inspector positions and reassigned three Welding Inspectors to WG-11 Welder positions. The Union filed a grievance on behalf of the displaced WG-10 Welders, alleging that the transfers of the Welding Inspectors were improper, that the WG-10 Welders should have been returned to their prior WG-11 positions, and that the Welding Inspectors should have been placed in WG-10 positions.

The Arbitrator determined that there was a threshold arbitrability issue concerning whether the grievance was timely filed under the parties' collective bargaining agreement.(1) Noting that the grievance was filed over 21 months after the Welding Inspectors were transferred to WG-11 Welder positions, the Arbitrator found that it was "well outside the fifteen (15) . . . calendar day time limit specified in the Negotiated Agreement. . . ." Award at 5. In so finding, the Arbitrator rejected the Union's claim that it had only become aware of the grievance 2 days before it was filed. Citing pertinent provisions of the parties' bargaining agreement, the Arbitrator additionally rejected the Union's contention that the Agency was precluded from raising the arbitrability issue at arbitration.(2) Accordingly, the Arbitrator concluded that the grievance was not arbitrable.

III. Exceptions

A. Union's Contentions

The Union contends that the award is deficient because "through undue pressure from [the Arbitrator] it was denied a proper presentation of its case." Exceptions at 2. According to the Union, the parties were "strongly encouraged" by the Arbitrator to complete the arbitration proceeding in 1 day, and, in order to do so, the Union agreed to stipulate to the testimony of five of its witnesses. Id. The Union argues that "the testimony of an examined and cross examined witness has much stronger credibility than mere and untested stipulations." Id.

The Union also argues that the award is based on nonfacts. The Union asserts that the Arbitrator erred by setting forth a date 1 year earlier than the actual date on which the Agency decided to eliminate the WG-11 Welding Inspector positions. The Union further points out that, because of this error, the Arbitrator incorrectly calculated the number of months between the date the Welding Inspectors were transferred and the date the grievance was filed. The Union additionally contends that other portions of the award are based on nonfact, including the Arbitrator's statement that "it would strain credibility to affirm that the Union and/or grievants were unaware of the fact [that the Agency had placed uncertified Welding Inspectors into the WG-11 Welder classification] until March 8, 1994." Id. at 4 (citing Award at 8).

Finally, the Union maintains that the Arbitrator erred in failing to apply current rulings of the Merit Systems Protection Board (MSPB) concerning reductions-in-force. According to the Union, although the Agency's reassignment of the WG-11 Welders violated MSPB case law, the Arbitrator gave that fact no consideration.

B. Agency's Opposition

The Agency contends that the Union merely disagrees with the Arbitrator's decision that the grievance was not timely filed and that the exceptions should be rejected on that basis. In addition, the Agency maintains that, even though the Arbitrator made a clerical error regarding the effective date of the Welding Inspectors' reassignments, it was not a central fact upon which his decision was based. The Agency also points out that the Union's concern over the submission of stipulated testimony is irrelevant in view of the Arbitrator's conclusion that the grievance was not timely filed.

IV. Analysis and Conclusions

A. Procedural Arbitrability

The award is based on the Arbitrator's determination of the procedural arbitrability of the grievance under the parties' collective bargaining agreement. Such determinations may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. 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). The Union's dispute with the Arbitrator's credibility findings, as well as its contention that the Arbitrator's decision is based on nonfacts, directly challenge the Arbitrator's findings and reasons for concluding that the grievance was not timely filed and, thereby, challenge the determination of procedural arbitrability itself. Accordingly, these contentions do not establish that the award is deficient.

B. Fair Hearing

We construe the Union's contention that it was denied the opportunity to properly present its case as a contention that the Arbitrator failed to provide a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).

The Union has not established that by encouraging the parties to complete the arbitration in 1 day, and accepting stipulated testimony, the Arbitrator refused to consider pertinent or material evidence. Nor has the Union established that the Arbitrator took any other actions that affected the fairness of the proceedings as a whole. Accordingly, we deny this exception.

V. Decision

The Union's exceptions are denied.(3)

(If blank, the decision does not have footnotes.)

1. Article 33, Section 7 of the parties' agreement provides, in pertinent part, that "[g]rievances must be presented within 15 calendar days from the date the employee or Union first became aware of the grievance. . . ." Award at 4 (footnote omitted).

2. Specifically, the Arbitrator cited Article 33, Section 6, and Article 34, Section 10. These sections provide:

Article 33
Section 6
. Grievability and Arbitrability. Disputes as to whether a matter is grievable or arbitrable shall be referred to arbitration for a determination. All disputes of grievability or arbitrability shall be referred to arbitration as a threshold issue in a related grievance.

Article 34
Section 10
. In the event either party declares a matter non-arbitrable, the arbitrator shall hear arguments regarding both the arbitrability and the merits of the case at the same hearing.

Id. at 6.

3. Because the Arbitrator determined only that the grievance was not arbitrable under the parties' negotiated grievance procedure and did not reach the subtantive issue presented by the grievance, the Union's exception that the award is contrary to current rulings of the MSPB provides no basis for finding the award deficient. For example, American Federation of Government Employees, Local 1931 and U.S. Department of the Navy, Naval Weapons Station, Concord, California, 50 FLRA 279, 281 (1995).