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51:1259(100)AR - - Federal Employees Metal Trades Council, Local 127 and Navy, Mare Island Naval Shipyard, Mare Island, CA - - 1996 FLRAdec AR - - v51 p1259

[ v51 p1259 ]
The decision of the Authority follows:

51 FLRA No. 100















April 30, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator L. Lawrence Schultz 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 exception.

The Arbitrator's award granted the Agency's motion to dismiss the Union's grievance because the Union did not pursue the grievance with due diligence.

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 exception.

II. Arbitrator's Award

The Union invoked arbitration over a grievance concerning a reduction-in-force and an initial hearing date was selected by the parties. Subsequently, the Agency requested that the hearing be postponed. Thereafter, by letter dated May 24, 1995,(*) with a copy to the Union, the Agency notified the Arbitrator that a September 14 hearing date had been mutually agreed to by the parties. On September 6, the Agency sent a letter of confirmation to the Arbitrator concerning the hearing, also with a copy to the Union. On September 11, the Arbitrator was informed that the Union had not been timely notified of the September 14 hearing date, that it was not prepared to go forward, and that it desired a continuance of the hearing. The Agency then filed a motion to dismiss the grievance on the ground that the Union had failed to justify its failure to proceed with the hearing on September 14.

The Arbitrator found that the "actions and inactions" of the Union demonstrated "an absence of due diligence." Award at 4. In so finding, the Arbitrator rejected the Union's contention that it had not received notice of the September 14 hearing because it had relocated its offices. The Arbitrator noted that the office move had occurred in February and that the notice of hearing was sent in May. In addition, according to the Arbitrator, the Union failed to make a good faith effort to comply with the parties' agreement to hold the hearing on September 14, and there were no "mitigating factors" in the Union's favor. Id. at 5.

Based on the foregoing, the Arbitrator granted the Agency's motion to dismiss the grievance.

III. Positions of the Parties

A. Union's Exception

The Union contends that the award is contrary to law because it "dismisses an arbitration without granting a hearing." Exception at 1. The Union attached to its exceptions a letter to the Arbitrator in which the Union claimed that it had no notice of the September 14 hearing date until September 6.

B. Opposition

The Agency contends that the Union failed to properly serve its exception by certified mail or in person as required by section 2429.27(b) of the Authority's Regulations. Specifically, the Agency claims that it received an incomplete copy of the exception by regular mail. On the merits, the Agency maintains that the Union has failed to establish that the Arbitrator erred in dismissing the grievance.

IV. Analysis and Conclusions

A. Preliminary Matter

It is clear that the Agency timely received the Union's exception, and the Agency does not claim, and there is no basis on which to conclude, that the Agency was prejudiced either by the manner in which the Union's exception was served or by the Union's alleged failure to include certain attachments with the exception mailed to the Agency. Therefore, and in view of our decision herein, we will consider the Union's exception. See U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269, 272 (1991).

B. The Award Is Not Based On a Nonfact

We construe the Union's exception as a contention that the award is based on a nonfact, specifically, that the Union was aware of the September 14 hearing date prior to September 6.

It is well-settled that, to establish that an award is based on a nonfact, a party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). The Arbitrator concluded, for several reasons set forth in his opinion, that "[t]he Union was on notice" of the September 14 hearing date prior to September 6. Award at 4. The Union has not demonstrated that this conclusion is clearly erroneous. Accordingly, the Union has not demonstrated that the award is based on a nonfact.

V. Decision

The Union's exception is denied.

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

*/ All dates are in 1995 unless otherwise indicated.