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61 FLRA No. 152
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS
AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
September 11, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Daniel G. Gallagher filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.
The Arbitrator concluded that he did not have jurisdiction over the subject matter of the grievance under the parties' collective bargaining agreement (agreement) and denied the grievance. For the reasons that follow, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for 14 days. She grieved the suspension. [n1] Subsequently, she filed a formal EEO complaint alleging, as to the suspension, that the Agency discriminated against her on the basis of physical disability, race, sex, and age.
The grievance was not resolved and was submitted to arbitration. Before the Arbitrator, the Agency claimed that the subject matter of the grievance was not arbitrable under Article XXXI, Section 3(i) (Article XXXI) of the agreement, which excludes EEO matters from the grievance procedure. [n2] The Arbitrator agreed with the Agency, finding that the "grievance was not properly at Arbitration for [the] reason that the disciplinary action is not grievable under the terms of Article XXXI." Award at 1. The Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
According to the Union, Article XXXI, Section 5 (Section 5) of the parties' agreement provides that grievability and arbitrability claims should normally be raised by the time a Step 3 decision is rendered. [n3] The Union asserts that the Agency's arbitrability claim was first raised at the arbitration hearing and, thus, the Arbitrator should have declined to address that claim.
Referencing § 7121(e) of the Statute, which provides that a grievance concerning EEO matters is barred from the grievance procedure if the grievant has previously filed an EEO complaint on the same matter, the Union contends that at no time were the dates of filing of the grievance and the grievant's EEO complaint at issue before the Arbitrator. Because the grievance was filed before the EEO complaint, the Union contends that, under § 7121(e), the grievance was properly before the Arbitrator and should not have been dismissed. The Union maintains that the Arbitrator's reliance on "this nonfact" was a critical part of his decision and argues that the Authority should vacate and remand the award. Exceptions at 6.
According to the Union, the grievance alleged that the Agency failed to demonstrate just cause for the grievant's suspension. The Union also states that none of the EEO allegations were raised in the grievance. Because Article XXXI precludes EEO matters from being raised through the grievance procedure, the Union maintains that the EEO complaint "should have no bearing on the arbitrability of [the] grievance." Id. at 7. Moreover, the Union asserts, because EEO matters cannot be raised in the grievance procedure, the grievance cannot concern the same matter as the EEO complaint. [ v61 p756 ] The Union claims that "the grievance and the EEO [c]omplaint are two separate and distinct issues." Id. at 8.
B. Agency's Opposition
The Agency maintains that the Union's procedural arbitrability exception is not sufficient to demonstrate that the Arbitrator's award is deficient because it directly challenges the determination of procedural arbitrability itself. Moreover, the Agency points out that Section 5 does not contain an absolute time frame for raising arbitrability issues; it provides only that such issues "normally" will be raised by the time a Step 3 response is rendered.
The Agency contends that the Arbitrator was fully aware of the dates on which the grievance and the EEO complaint were filed because he had the documents as a part of the record. In addition, the Agency maintains the Union's nonfact argument focuses on § 7121(e) and "ignores the contractual provision at Article XXXI." Opposition at 6. The Agency argues that it is only Article XXXI that is at issue because the Arbitrator "clearly found that the subject matter of the . . . grievance could be raised through EEO channels and, thus, was bar[r]ed by the terms of the parties' agreement from being raised as a negotiated grievance." Id.
Finally, the Agency contends that, by challenging the Arbitrator's finding that "the grievance involved a matter that could be raised under EEO proceedings[,]" the Union's contrary to law exception amounts to a claim that the award is based on a nonfact. Id. at 7.
IV. Analysis and Conclusions [n4]
A. The Arbitrator's Procedural Arbitrability Ruling is not Deficient
The Union's claim that, under Section 5, the Arbitrator was precluded from considering an untimely raised arbitrability allegation directly challenges the procedural arbitrability of the grievance. See United States Dep't of Veterans Admin., Med. Ctr., Leavenworth, Kan., 38 FLRA 232, 243 (1990). In this regard, we note that under Section 5 a claim that the grievance is not arbitrable becomes a part of the grievance. See note 3, supra. The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds, such as that alleged here, that directly challenge the procedural ruling itself. See Goddard Eng'rs, Scientists & Technicians Ass'n, IFPTE, Local 29, 60 FLRA 593, 594 (2005). Consequently, the Union's argument fails to demonstrate that the award is deficient.
B. The Award is not Based on a Nonfact
The Union's nonfact exception is based on the claim that the grievance was filed before the EEO complaint and, therefore, under § 7121(e) of the Statute, was properly before the Arbitrator. The Union's argument is misplaced. The Arbitrator did not find that the grievance was barred under § 7121(e) because the EEO complaint was filed first, as the Union's nonfact argument suggests. The Arbitrator found that the grievance was not arbitrable under Article XXXI because it concerned matters barred from the grievance procedure under that provision. See Award at 1. Section 7121(e) was irrelevant to the Arbitrator's arbitrability determination. Consequently, this argument fails to demonstrate that the award is deficient.
C. The Award is not Contrary to Law
The Union claims that the award is contrary to law because the grievance did not concern EEO matters. [n5] However, as noted above, supra, note 1, the grievance does not make clear the grounds for the grievance and although it cites provisions of the parties' agreement, the record does not include those provisions. Moreover, we note that Article XXXI pertains to "any action" that can be raised under EEO procedures and here the underlying "action" in both the grievance and the EEO complaint is the 14-day suspension. Finally, we note that the Union's contrary to law argument is misplaced. The Union's argument is based on its belief that the Arbitrator based his award on § 7121(e) when, in fact, the award is based on the Arbitrator's interpretation of Article XXXI. Consequently, the Union fails to show that the award is deficient.
The Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 152 - Authority's Decision
The grievance alleged that the suspension was "unjustified" and, as the articles and sections in dispute, cited "Article II, Sections 1 and 2, 5 U.S.C., [and the] Table of Penalties." Exceptions, Ex. C, dated August 26, 2004.
Footnote # 2 for 61 FLRA No. 152 - Authority's Decision
Article XXXI provides that several matters may not be raised under the grievance procedure, including: "Any action that can be raised through the Equal Employment Opportunity (EEO) law and/or regulations." Exceptions, Ex. F at 34-35.
Footnote # 3 for 61 FLRA No. 152 - Authority's Decision
SECTION 5. Allegations of non-grievability or non-arbitrability of a grievance will normally be raised by the time a Step 3 decision is rendered. . . . All disputes of grievability and arbitrability shall be referred to arbitration as a threshold issue in the related grievance. . . .
Exceptions, Ex. F at 35.
Footnote # 4 for 61 FLRA No. 152 - Authority's Decision
In this case, the Union does not dispute the Arbitrator's interpretation of Article XXXI. See Exceptions at 7. Consequently, the essence test for determining whether a contractual substantive arbitrability determination is deficient does not apply. See, e.g., AFGE, Local 12, 61 FLRA 456, 457-58 (2006). Cf. NAGE, Local R4-45, 55 FLRA 695, 699-700 (1999) (arbitrator found grievance did not concern racial discrimination and award finding grievance arbitrable under agreement provision barring discrimination claims from the negotiated grievance procedure found not to be deficient on essence grounds).
Footnote # 5 for 61 FLRA No. 152 - Authority's Decision
Insofar as the Union's claim could be construed as an additional nonfact exception, it would also be denied. In this regard, for an award to be found deficient on nonfact grounds, the excepting party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, e.g., AFGE, Local 1917, 61 FLRA 579, 581 (2006). Assuming that the Arbitrator's finding that the grievance concerned EEO matters is a central fact underlying the award, the Union has failed to demonstrate that this finding is clearly erroneous.