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56 FLRA No. 91
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 422
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
COLORADO RIVER AGENCY
August 23, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Guy M. Parent 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 grievances were not arbitrable because they were not filed timely.
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. Therefore, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a group grievance and individual grievances on behalf of 7 employees all in relation to a reduction-in-force (RIF). The Arbitrator determined that there were two procedural issues that had to be addressed: (1) whether the provisions of the parties' 1990 or 1995 collective bargaining agreement applied to the case; and (2) whether the grievances were arbitrable since the group grievance was allegedly prematurely filed and the individual grievances were allegedly filed too late. As to these issues, the Arbitrator concluded, first that the arbitration was subject to the provisions of the 1990 agreement. [n1] Second, the Arbitrator concluded that the grievances were not arbitrable.
Specifically, with regard to the group grievance, the Arbitrator concluded that it was filed prematurely and in violation of Article 7, Section 2(J) of the parties' agreement. [n2] In this regard, the Arbitrator found that the Union's March 22, 1995 group grievance was filed before the Agency issued RIF notices on March 24, 1995, to affected bargaining unit employees and before the Agency conducted the RIF on May 26, 1995. Based on the timing of the group grievance in relation to these events, the Arbitrator found that the Union was "griev[ing] the notice of [the] impending RIF and not the actual effects of the implementation of the RIF" since the Union then "was in no position to know what, if any, adverse effect the implementation of the RIF would actually have." [n3] Award at 25.
Regarding the individual grievances for the seven employees, the Arbitrator concluded that these grievances were untimely filed on June 30, 1995, in violation of Article 7, Section 5(A) of the parties' agreement. [n4] The Arbitrator rejected the Union's contention that these grievances were timely as a result of a verbal 15-day extension that was allegedly granted by the Chief of the Personnel Management Division to the Union's President. According to the Arbitrator, the Union presented "nothing of probative value to support" this assertion. Id. at 27. Moreover, the Arbitrator found that although the Personnel Chief may have been involved in processing the group grievance at Step 3 in terms of [ v56 p587 ] arbitration, he "ha[d] [no] role to play in the processing of grievances at Steps 1 or 2 . . . ." Id. at 28. Ultimately, the Arbitrator concluded that the Union President had "ample time to initiate Step 1 grievances within the 21 days allowed by the [a]greement[,]" but that "he chose to pursue [the] group grievance, which he should have known after ten years of experience as Local President, was being processed in violation of Article 7, Section 2(J)." Id. In light of these circumstances, the Arbitrator also found that the Agency was "not compelled to grant an extension[.]" Id.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award that the group grievance was not arbitrable is contrary to law. In particular, the Union argues that the Arbitrator's finding that the group grievance was premature "flies squarely in the face of" precedent established by the Supreme Court and applied by the National Labor Relations Board (NLRB). Exceptions at 9. The Union contends that this case law establishes that "the limitations period within which to file a complaint of discrimination based on a decision to terminate employment begins to run when the employee is notified he will be terminated, not on the actual date his employment ends." Id., citing Delaware State College et. al. v. Ricks, 449 U.S. 250, 256-57 (1980) (Delaware State College); International Photographers Guild, Local 659, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, AFL-CIO and Michael Dean, 276 NLRB 881, 884 (1985) (International Photographers Guild, Local 659, IATSE). In line with this case law, the Union contends that the group grievance was properly filed after the Agency notified the Union of its decision to eliminate the jobs of bargaining unit members, and that the Union should not have had to wait "until the employees actually lost their jobs in order to file [the] grievance." Id.
In addition, the Union argues that the Arbitrator erred in finding that the individual grievances were untimely filed. The Union takes issue with the Arbitrator's rejection of testimony presented by the Union regarding the processing of these grievances, and maintains among other things, that an extension of time to file the grievances was granted by the Chief of the Personnel Management Division. The Union also cites Authority precedent that, in its view, supports the proposition that an arbitrator may properly rely on a witness' unrebutted testimony.
B. Agency's Opposition
The Agency maintains that the Union's exceptions should be denied since the Arbitrator's award is consistent with law and the parties' negotiated agreement.
IV. Analysis and Conclusions
The award is based on the Arbitrator's determination of the procedural arbitrability of the grievances under the parties' collective bargaining agreement. An arbitrator's determination of the procedural arbitrability of a grievance 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, 185-86 (1995). Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. See id. at 186.
The Union's contention -- that the Arbitrator erred in finding that the individual grievances were untimely filed -- directly challenges the Arbitrator's determination of the procedural arbitrability of the grievances under the agreement. Consistent with Authority precedent, this exception does not provide a basis for finding the award deficient. See id. See also American Federation of Government Employees, Local 1399 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 54 FLRA 1143, 1151 (1998) (union's challenge to arbitrator's finding that grievance was timely filed does not provide a basis for finding the award deficient).
The Union's argument that the award is contrary to the Supreme Court's holding in Delaware State College and the NLRB's decision in International Photographers Guild, Local 659, IATSE is misplaced. As relevant here, the issue before the Arbitrator involved the timeliness of a grievance filed under the parties' negotiated agreement. The cases cited by the Union addressed procedural requirements of specific statutes that are not involved in the instant case. Notably, in Delaware State College, the Court addressed the issue of the appropriate time limitations period for filing a complaint of discrimination under Title VII of the Civil Rights Act of 1964, while in International Photographers Guild, Local 659, IATSE, the NLRB addressed the time limitations period for filing an unfair labor practice charge under Section 10(b) of the National Labor Relations Act. In both cases, timeliness was based on the claimed unlawful action, not the consequences flowing from that action. In this case, the Arbitrator essentially found that the Union grieved the RIF as it applied to various employees before the RIF notices were actually sent to the employees and before the RIF occurred. It was on this basis that the grievance was found to be prematurely filed. We find that the cases on which the Union relies provide no basis for finding the award deficient as contrary to law.
The Union's exceptions are denied.
Footnote # 1 for 56 FLRA No. 91
Footnote # 2 for 56 FLRA No. 91
This grievance procedure does not apply to:
. . . .
J. Proposals to take disciplinary, performance related, or adverse actions.
Award at 24-25.
Footnote # 3 for 56 FLRA No. 91
Footnote # 4 for 56 FLRA No. 91
A formal grievance shall be filed with the immediate supervisor. A grievance must be receipted or date stamped withing 21 calendar days of the date of occurrence of the matter grieved or within 21 calendar days of the date the grievant could reasonably be expected to be aware of the incident.
Award at 19-20.