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The decision of the Authority follows:
51 FLRA No. 44
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
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 Edward V. Ott 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. Accordingly, we deny the Union's exceptions.
II. Arbitrator's Award
The Union filed a grievance alleging that an Agency manager restricted his promotion selections to employees who were not members of the Union. The Arbitrator ruled that the grievance was not timely filed under Article 13, Section 7 of the parties' collective bargaining agreement, which provides that grievances must be filed "within 30 calendar days of the date that the employee or the Union became aware or should have become aware of" the disputed matter. Award at 4-5. The Arbitrator determined that the grievance was filed more than 30 days after the Union should have become aware of the manager's alleged restrictions on promotions. On this basis, the Arbitrator dismissed the grievance.
A. Union's Contentions
The Union argues that the Arbitrator's determination that the grievance was untimely filed is contrary to the language of the collective bargaining agreement. The Union contends that it filed the grievance within 30 days of the date it became aware of the matter and that, contrary to the Arbitrator's finding, there was no basis on which it should have known of the matter before it did.(1)
B. Agency's Opposition
The Agency asserts that the Union fails to establish that the award is deficient under the Statute.(2)
IV. Analysis and Conclusions
An arbitrator's determination of the procedural arbitrability of a grievance under the parties' collective bargaining 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 can be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. Id. at 186. The Union's contention that the grievance was timely filed directly challenges the Arbitrator's findings and reasons for concluding that the grievance was not timely filed and thereby challenges the determination of procedural arbitrability itself. Accordingly, it provides no basis for finding the award deficient. Therefore, we deny the exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Although the Arbitrator specifically dismissed the grievance only on the ground that it was untimely filed, he also discussed the Union's allegations on the merits. The Union contends that, in this regard, the award is contrary to the Authority's decision in Letterkenny Army Depot, 35 FLRA 113 (1990). Because we find that the Arbitrator resolved the grievance on the basis that it was not timely filed under the parties' agreement and did not resolve the merits of the grievance, this contention provides no basis for finding the award deficient. See American Federation of Government Employees, Local 1931 and U.S. Department of the Navy, Naval Weapons Station, Concord, California, 50 FLRA 279, 281 (1995).
2. In addition, the Agency objects to the Union's attachment to its exceptions of the Union's post-hearing brief to the Arbitrator. The Agency maintains that the Authority should strike the brief because it does not constitute argument in support of the exceptions and was not served on the Agency. We deny the objection. We find that the brief constitutes support for the stated grounds for review within the meaning of section 2425.2 of the Authority's Regulations, and we note that the Union subsequently cured its service deficiency.