U.S. Department of Defense, Army and Air Force Exchange Service, Fort Worth General Merchandise Distribution Activity and American Federation of Government Employees, Local 2965 (Authority decision, January 9, 1990)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award on the agency's grievance filing time limits. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

The Fort Worth Army and Air Force Exchange Service grieved a union steward's attempt to discourage an employee complaint. An arbitrator found that the agency could file a grievance and was not bound by the agreement's filing deadline, but also found that the steward had not violated the agreement. The union challenged only the timing ruling, arguing that it could affect later agency grievances. The Authority held that disagreement with an arbitrator's application of grievance procedures did not establish a deficient award. It denied the exceptions, leaving the timing ruling and the finding of no union violation in place.

Decision snapshot

• Authority: Negotiated grievance procedure under 5 U.S.C. § 7121(a)(1); arbitration exceptions under § 7122(a).
• Outcome: Union exceptions denied; agency grievance timing ruling stands.
• Key point: A dispute over the arbitrator's application of grievance deadlines did not justify setting aside the award.

Full text (FLRA public release)

[ v34 p158 ]
34:0158(35)AR

The decision of the Authority follows:

34 FLRA NO. 35

U.S. DEPARTMENT OF DEFENSE
ARMY AND AIR FORCE EXCHANGE SERVICE
FORT WORTH GENERAL MERCHANDISE DISTRIBUTION ACTIVITY

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2965

0-AR-1585

DECISION

January 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Don J. Harr filed by Local No. 2965, American Federation of Government Employees, AFL - CIO (the Union) under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Army and Air Force Exchange Service, Fort Worth General Merchandise Distribution Activity (the Agency) did not file an opposition to the Union's exceptions.

The Agency filed a grievance contesting the actions of a Union shop steward who attempted to persuade a bargaining unit member not to file a complaint against another employee. The grievance was submitted to arbitration. The Arbitrator determined that the grievance was arbitrable and that the Union steward's conduct did not violate the parties' agreement. The Union excepts only to the Arbitrator's determination that the Agency was not bound by the time limits for filing grievances contained in the parties' agreement. For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

The Agency filed a grievance alleging that the Union violated the parties' agreement. The Agency alleged that a Union shop steward had attempted to persuade a unit employee not to file a complaint against another employee. The Agency asserted that the shop steward's action violated Article 12, Section 1 of the collective bargaining agreement, which provides bargaining unit members with the right to assist or refrain from assisting a union.

The Union asserted, among other things, that the grievance was not arbitrable because the Agency: (1) was not entitled to file grievances, either in its own behalf or on behalf of unit employees; and (2) was bound by the time limits set forth in the negotiated grievance procedure. The Arbitrator considered both the question of arbitrability and the merits of the grievance.

The Arbitrator determined that the Agency: (1) has the right, under law and the parties' agreement, to file grievances; (2) is not bound by the time limits for filing grievances established in the parties' agreement; and (3) does not have the right to file grievances on behalf of unit employees. The Arbitrator also found that although the parties intended to permit the Agency to file grievances, the parties "did not, however, (e)ncumber the Agency with time limits." Award at 5. Accordingly, the Arbitrator found that the grievance was arbitrable.

On the merits, the Arbitrator determined that Article 12, Section 1 was not applicable to the grievance. Therefore, the Arbitrator found that the Union did not violate the collective bargaining agreement.

III. Union's Exceptions

The Union excepts only to that portion of the Arbitrator's award which found that the Agency is not bound by the time limits set forth in the parties' negotiated grievance procedure. The Union asserts that although it "does not contest the finding that time limits for initiating a grievance do not apply to Union - Management grievances, the award could be read to allow management to avoid time limits prescribed in the Arbitration article of the Master Agreement for the various arbitration procedures." Exceptions at 1 (emphasis in original).

The Union contends that the award is deficient because it violates section 7121(a)(1) of the Statute. The Union states that section 7121 establishes procedures and principles "requiring that the parties negotiate a mutually acceptable procedure for the settlement of disputes." Exceptions at 4. According to the Union, the award "would place the Union in a hardship in regards (sic) to the processing of future grievances and arbitrations" because it binds the Union, but not the Agency, to the time limits contained in the parties' agreement. Exceptions at 4.

The Union also contends that the award is deficient because it: (1) is based on gross error but for which a different result would have been reached; and (2) does not draw its essence from the parties' agreement. The Union asserts that the Arbitrator ignored the time limits specified in the agreement. The Union argues that it "would not negotiate a procedure that would be the 'sole and exclusive' method by which complaints could be heard and resolved, and place restrictions on itself in regards (sic) to processing under that procedure." Exceptions at 4.

IV. Discussion

The Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

The Union's contentions provide no basis for finding the award deficient. Disagreement with an arbitrator's application of the procedural requirements of a negotiated grievance procedure is not a ground for finding the award deficient. See, for example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 28 FLRA 958, 959-60 (1987).

V. Decision

The Union's exceptions are denied.