U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916 (Authority decision, January 10, 1990)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award dismissing a grievance as untimely. 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

Tinker Air Force Base suspended an employee for five days, and the union filed a written grievance after the labor agreement's 20-day deadline. An arbitrator dismissed the grievance without deciding whether the suspension was justified. The union argued that the agency itself had issued the proposed discipline late. The Authority held that the agency's timing did not answer the threshold question of whether the union had filed its written grievance on time. It denied the exceptions, leaving the grievance dismissed and the merits undecided.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; the arbitrator's late grievance dismissal stands.
• Key point: A challenge to the agency's disciplinary notice did not excuse missing the grievance filing deadline.

Full text (FLRA public release)

[ v34 p193 ]
34:0193(42)AR

The decision of the Authority follows:

34 FLRA NO. 42

U.S. DEPARTMENT OF THE AIR FORCE
TINKER AIR FORCE BASE, OKLAHOMA

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 916

0-AR-1635

DECISION

January 10, 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 Lawrence Mann, Jr. The Arbitrator found that the employee's written grievance was not filed within the time frame required by the parties' collective bargaining agreement. Consequently, the Arbitrator dismissed the Union's grievance. Exceptions were filed by the American Federation of Government Employees, Local 916, 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 Department of the Air Force, Tinker AFB, Oklahoma (the Agency) did not file an opposition to the exceptions. For the reasons discussed below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

The Agency suspended the grievant for 5 days for making a false statement concerning a management official with the intent to damage his reputation and for filing a false report with security police. The Agency notified the grievant of this disciplinary action on September 17, 1987.

Thereafter, the grievant orally informed management that she was aggrieved. However, the grievant did not file a written grievance until October 14, 1987. When the parties did not resolve the grievance, it was submitted to arbitration.

The Arbitrator stated that there were two issues before him: "The first issue is the matter of timeliness and the second issue is the substance of the five day suspension." Award at 1. In determining whether the grievance was timely, the Arbitrator examined the parties' collective bargaining agreement. Section 5.07(f) of the agreement required that "a written grievance" be filed "within 20 calendar days of receipt of the disciplinary action." Award at 5. The Arbitrator found that the Union did not file a written grievance in a timely manner. Thus, the Arbitrator denied the grievance and did not address the substance of the dispute.

In denying the grievance, the Arbitrator noted that the grievant's oral statement to a manager that she was aggrieved did not change the contractual requirement for filing a written grievance. In addition, the Arbitrator found that a discussion between the parties about the grievance did not change "the clear and unambiguous language of the collective bargaining agreement." Award at 7. Finally, the Arbitrator noted that the grievant was a Division Level Steward, had been a steward before this incident, and had received steward training. The Arbitrator concluded that the grievant was aware of the contractual and procedural time limits and should have known the effect of not adhering to those procedures. Award at 8.

III. The Union's Position

The Union contends that the Arbitrator failed to consider all the facts concerning the disciplinary action. According to the Union, if the Arbitrator had reviewed all of the facts, the Union's untimeliness would not have been an issue because "the Agency's untimeliness (in issuing its notice of proposed disciplinary action) preceeded (sic) the Union's accused untimeliness." Union's Exceptions at 5.

The Union asserts that the Agency's notice of proposed discipline was not timely under the collective bargaining agreement. The Union contends that the applicable portion of section 5.02 of the agreement required the Agency to issue a notice of proposed discipline within 45 days from the date the Agency became aware of the offense. The Union asserts that the Agency issued the notice of proposed discipline 54 days after the date that management became aware of the incident. Therefore, the Union argues that the Arbitrator should have found that the Agency issued its notice of proposed discipline untimely and that the Union's untimeliness was not an issue. In addition, the Union argues that any reference to the grievant's discipline should be removed from the Agency's records.

IV. Analysis and Conclusion

We conclude that the Union's exceptions do not establish that the Arbitrator's award is deficient under section 7122(a) of the Statute.

The Union asserts that the Arbitrator ignored facts that would have shown that the Agency was untimely in issuing its notice of proposed disciplinary action to the grievant. We find, however, that the facts concerning the Agency's issuance of its notice of proposed disciplinary action were not pertinent to the issue before the Arbitrator.

The Arbitrator stated that the first issue in the case was whether the Union filed a grievance in a timely manner. Award at

1. We note that the Union does not dispute the Arbitrator's
   determination that the threshold issue was whether the grievance was filed within the time limits established by the collective bargaining agreement. The Arbitrator's decision on that issue was that the Union had not met the contractual requirement for timely filing a written grievance. The Arbitrator did not reach the issue of the merits of the disciplinary action, which might have included the question of whether the Agency was timely in issuing its notice of proposed disciplinary action. The Arbitrator's consideration of the facts concerning the timeliness of the Agency's notice was not pertinent to the issue before him, which was whether the Union followed the contractual time limits.

We find that the Union's exceptions merely disagree with the Arbitrator's determination that the grievance was not procedurally arbitrable because it was not filed within the time frames established by the collective bargaining agreement. An exception that merely disagrees with the arbitrator's determination on the procedural arbitrability of the grievance provides no basis for finding the award deficient. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 32 FLRA 1078, 1080 (1988). Accordingly, we find that the Union's exceptions provide no basis for finding the Arbitrator's award deficient.

V. Decision

The Union's exceptions are denied.