American Federation of Government Employees, Council 1770 (Union) and United States, Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina (Agency)

[ v61 p755 ]

61 FLRA No. 152

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 1770
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS
AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
(Agency)

0-AR-4082

_____

DECISION

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