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52:0079(6)AR - - NAGE, Local R5-168 and Army, Fort Polk, LA - - 1996 FLRAdec AR - - v52 p79

[ v52 p79 ]
The decision of the Authority follows:

52 FLRA No. 6





LOCAL R5-168









August 20, 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 I.B. Helburn 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 determined that a grievance seeking environmental differential pay (EDP) for six grievants exposed to a potentially hazardous substance was not arbitrable because it was untimely filed. For the following reasons, 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. Background and Arbitrator's Award

The grievants, high voltage electricians, sought EDP from the Agency, claiming that they had been exposed to a potentially hazardous substance for a number of years. The Agency determined that the grievants were entitled to EDP for only a portion of their work time. Because the Union disagreed with the Agency's decision, the Union filed a claim with the General Accounting Office (GAO). After GAO returned the claim on the basis that GAO would no longer adjudicate matters covered by negotiated grievance procedures, the Union filed a grievance, which proceeded to arbitration on the following issues, as formulated by the Arbitrator:

1. Is the grievance arbitrable?

2. If so, are the grievants entitled to EDP in addition to that already granted by the Agency?

Award at 8.

The Arbitrator found that, under the parties' collective bargaining agreement, a grievance must be filed "within 10 workdays of the date the employee could have reasonably become aware of the incident or decision giving rise" to a grievance. Award at 9. The Arbitrator determined that the grievance in this case was filed more than 10 workdays after the Union became aware of the Agency's decision on the amount of EDP to pay the grievants. Accordingly, the Arbitrator concluded that the grievance was untimely.

III. Exception

A. Union's Contention

The Union contends that the grievance is, in fact, timely because the claim for EDP was made to GAO before GAO ceased resolving matters covered by a negotiated grievance procedure. Therefore, according to the Union, not only would it be inequitable to deny the grievance, but also contrary to the negotiated agreement, law, rule and regulations. Consequently, the Union claims that the Arbitrator erred in finding the grievance untimely.

B. Agency's Opposition

The Agency asserts that the Union fails to establish that the Arbitrator's decision is deficient. According to the Agency, the Union's exception merely challenges the Arbitrator's determination of procedural arbitrability.

IV. Analysis and Conclusion

Arbitration awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly 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). Such grounds include showing that the Arbitrator was biased or exceeded his authority. Id. at 186.

Here, the Union contends only that the grievance was timely filed. This argument directly challenges the procedural determination of the Arbitrator, and does not provide a basis for finding the award deficient.

V. Decision

The Union's exception is denied.

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