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51:1500(122)AR - - NAGE, Local R1-100 & Navy, Naval Submarine Base, New London, CT - - 1996 FLRAdec AR - - v51 p1500

[ v51 p1500 ]
The decision of the Authority follows:

51 FLRA No. 122





LOCAL R1-100










July 3, 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 Peter Florey 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 denied as untimely a grievance seeking backpay with interest for guards and police officers who had worked while on their lunch breaks during the previous 6 years. For the following reasons, we conclude that the Union has provided no basis for finding the award deficient. Accordingly, we deny the Union's exception.

II. Arbitrator's Award

The Union filed a grievance claiming that the Agency's lunch-break policies violated the parties' collective bargaining agreement and requesting 6 years' backpay with interest for affected employees. The grievance was denied and proceeded to arbitration. The parties were unable to stipulate to the issue and instead submitted a number of questions for the Arbitrator's consideration. Without clearly setting forth a statement of the issue, the Arbitrator denied the grievance on the ground that it was untimely.(1)

The Arbitrator rested his timeliness determination on two provisions of the agreement. The first requires grievances to be filed within 15 days of the date on which the matter giving rise to the grievance occurred.(2) The second jointly endorses the policy that grievances should be presented and adjusted promptly.(3)

III. Positions of the Parties

A. Union

The Union argues that the issue of timeliness was not before the Arbitrator and that, therefore, the Arbitrator exceeded his authority by addressing it. The Union claims that, as neither party raised procedural issues, the Arbitrator's award came as a "complete surprise," "prejudiced" the Union and was "contrary to the parties' intent." Exception at 7. The Union further argues that the Agency waived the timeliness defense by accepting the grievance and expressly stating that it was timely.

B. Agency

The Agency argues that the issue of timeliness was before the Arbitrator, as evidenced by the Agency's treatment of the issue in its post-hearing brief, and that, in the absence of a stipulation to the issue by the parties, the Arbitrator's formulation of the issue is accorded substantial deference. The Agency contends that determinations of procedural arbitrability are subject to attack only on collateral grounds. The Agency disputes the Union's claim that the Agency expressly waived the timeliness issue and argues that the award properly drew its essence from the contract.

IV. Analysis and Conclusion

Because the Arbitrator rested his decision on an issue of procedural arbitrability, the award is subject to challenge only on grounds "other than [those] that challenge the determination of procedural arbitrability itself[,]" such as bias on the part of the Arbitrator or a showing that the Arbitrator exceeded his authority. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 186 (1995). Here, the Union asserts that the Arbitrator exceeded his authority because neither party raised the timeliness issue.

An arbitrator exceeds his authority by resolving an issue not submitted to arbitration. National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California TRACON, 51 FLRA 993, 995 (1996) (FAA). However, when the parties fail to stipulate to the issue, the arbitrator may formulate it on the basis of the subject matter before him. See American Federation of Government Employees, Local 1637 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Seagoville, Texas, 49 FLRA 125, 130 (1994). Such formulations are accorded substantial deference. Id.

Two items in the record show that the timeliness of the grievance was submitted to arbitration and that the Arbitrator, therefore, had authority to rule on the issue. First, the Agency's post-hearing brief urged the Arbitrator to dismiss the grievance because the Union filed it late. See Opposition at Attachment. From this it can be inferred that the issue was in fact raised in arbitration. See American Federation of Government Employees, Local 2076 and U.S. Department of Justice, Immigration and Naturalization Service, 47 FLRA 1379, 1384 (1993).

Second, one of the questions the Union submitted to the Arbitrator was "[i]s the grievance arbitrable?" Exception at 3. It is reasonable to assume that resolution of this question would require consideration of timeliness, especially because the grievance alleged contract violations spanning a 6-year period. By raising the broad question of arbitrability in these circumstances, the Union itself put the timeliness issue in play. See FAA, 51 FLRA at 996.

Given the substantial deference the Authority accords the Arbitrator's choice of issue, the facts of this case compel a finding that the Arbitrator did not exceed his authority. Accordingly, the exception provides no basis for finding the award deficient.(4)

V. Decision

The Union's exception is denied.

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

1. After finding the grievance untimely, the Arbitrator proceeded to discuss its substantive merits. As the Union did not except to this portion of the award, we do not address it.

2. Article XXIX, Section 4 of the collective bargaining agreement states:

Any grievance not taken up with the employee's immediate supervisor or with appropriate representatives of the Union or Employer within fifteen calendar days after the occurrence of the matter out of which the grievance arose, shall not be presented nor considered at a later date except in cases where the complaining party could not reasonably have been aware of being aggrieved.

Award at 3.

3. Article XXIX, Section 8 of the collective bargaining agreement states:

The Employer and the Union recognize and endorse the importance of bringing to light and adjusting grievances promptly.

Award at 3-4.

4. The Union's argument that the Agency waived the timeliness issue by processing the grievance fails because it challenges the determination of procedural arbitrability itself. E.g., American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246 (1995).