Department of Defense, Office of Dependents Schools and Overseas Education Association (Authority decision, February 11, 1982)

Final FLRA decision. The Authority denied the union's exceptions and left the arbitrator's denial of a promotion grievance in place. An Authority order under 5 U.S.C. § 7122 concerning an arbitration award is excluded from judicial review by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice; this order does not identify one.

Plain-English summary

An employee of the Defense Department's Office of Dependents Schools grieved the denial of a promotion. The arbitrator held that the grievance missed the collective bargaining agreement's ten-day filing deadline and that the delay did not qualify for an exception. The Overseas Education Association challenged that finding as contrary to the agreement and based on a nonfact. The Authority found that the exceptions simply disagreed with the arbitrator's findings about the filing requirement and denied them. It also found no basis for attorney fees. The grievance remained denied.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; arbitration award left in place.
• Key point: Disagreement with an arbitrator's application of a contractual grievance deadline did not make the award deficient.

Full text (FLRA public release)

[ v08 p107 ]

08:0107(21)AR

The decision of the Authority follows:

8 FLRA No. 21

DEPARTMENT OF DEFENSE,
OFFICE OF DEPENDENTS
SCHOOLS
Agency

and

OVERSEAS EDUCATION
ASSOCIATION
Union

Case No. 0-AR-153

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR J. HARVEY DALY FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7122(A)) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR PART 2425). /1/1 THE AGENCY FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR THE ISSUE SUBMITTED TO ARBITRATION
QUESTIONED WHETHER THE GRIEVANT HAD BEEN UNJUSTLY DENIED A PROMOTION AND
WHETHER THE GRIEVANCE HAD BEEN TIMELY FILED. THE ARBITRATOR DETERMINED
UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT THAT THE GRIEVANCE
WAS UNTIMELY BECAUSE IT DID NOT MEET THE 10-DAY FILING REQUIREMENT AND
BECAUSE THE CIRCUMSTANCES OF THE DELAY DID NOT QUALIFY FOR AN EXCEPTION
TO THAT 10-DAY REQUIREMENT. CONCLUDING THAT THE GRIEVANT HAD
ACCORDINGLY RELINQUISHED HIS RIGHTS UNDER THE AGREEMENT AND THAT
THEREFORE IT COULD NOT BE FOUND THAT THE GRIEVANT HAD BEEN UNJUSTLY
DENIED A PROMOTION, THE ARBITRATOR DENIED THE GRIEVANCE.

IN ITS EXCEPTIONS TO THE AWARD, THE UNION CONTENDS THAT THE AWARD IS
DEFICIENT BECAUSE THE ARBITRATOR'S DETERMINATION THAT THE GRIEVANCE WAS
NOT TIMELY FILED FAILS TO DRAW ITS ESSENCE FROM THE COLLECTIVE
BARGAINING AGREEMENT AND IS BASED ON A NONFACT. HOWEVER, THE UNION'S
EXCEPTIONS CONSTITUTE NOTHING MORE THAN DISAGREEMENT WITH THE
ARBITRATOR'S FINDINGS AND CONCLUSIONS REGARDING THE GRIEVANT'S FAILURE
TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF THE PARTIES' AGREEMENT AND
CONSEQUENTLY PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT. SEE,
E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 169 AND TINKER
AIR FORCE BASE, AIR LOGISTICS CENTER, OKLAHOMA CITY, OKLAHOMA, 7 FLRA
NO. 8(1981); U.S. DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND QUALITY
SERVICE AND NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS, AFGE,
AFL-CIO, 6 FLRA NO. 48(1981). ACCORDINGLY, THE UNION'S EXCEPTIONS ARE
DENIED. /2/

ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ THE UNION'S EXCEPTIONS WERE INITIALLY ORDERED DISMISSED AS
UNTIMELY FILED (4 FLRA NO. 74(1980)), AN ORDER SUBSEQUENTLY RESCINDED BY
AN ORDER DATED JUNE 15, 1981 (FEDERAL LABOR RELATIONS AUTHORITY REPORT
OF CASE DECISIONS NO. 85, JUNE 18, 1981).

/2/ IN ITS EXCEPTIONS THE UNION ALSO SOUGHT REASONABLE ATTORNEY FEES
FOR THE GRIEVANT. HOWEVER, IN VIEW OF THE ARBITRATOR'S AWARD AND THIS
DECISION OF THE AUTHORITY, THERE IS NO BASIS FOR AN AWARD OF ATTORNEY
FEES TO THE GRIEVANT.