U.S. Department of Veterans Affairs, Olin E. Teague Medical Center, Temple, Texas and American Federation of Government Employees, Local 2109 (Authority decision, February 27, 1992)

Final FLRA decision. The Authority denies an exception to an arbitration award rejecting a grievance as untimely. Under 5 U.S.C. § 7123(a)(1), an Authority 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 resolve an unfair labor practice.

Plain-English summary

An employee at the Veterans Affairs medical center challenged her performance rating through a union grievance. The arbitrator found that the grievance was filed 35 days after the employee received the rating, beyond the collective bargaining agreement's 30-day deadline. The union argued that the employee's attempt to resolve the matter informally delayed the filing period and that the award rested on a mistaken fact. The Authority found that this argument disputed the arbitrator's reading of the evidence and agreement, rather than showing a clearly erroneous central fact. It denied the union's exception, leaving the untimeliness ruling in place.

Decision snapshot

• Authority: Review of arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Union's exception denied; arbitrator's denial of the grievance remains in place.
• Key point: Disagreement with an arbitrator's application of a grievance deadline does not establish that the award rests on a nonfact.

Full text (FLRA public release)

[ v44 p143 ]
44:0143(12)AR

The decision of the Authority follows:

44 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

OLIN E. TEAGUE MEDICAL CENTER

TEMPLE, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 2109

(Union)

0-AR-2196

DECISION

February 27, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator John A. Bailey filed by 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 Agency filed an opposition to the Union's exception.

The Arbitrator denied a grievance contesting an employee's performance rating on the ground that the grievance was untimely filed. For the following reasons, we conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

A grievance contesting the grievant's performance rating was submitted to arbitration. The Arbitrator concluded that, as the grievance was not filed until 35 days after the grievant received the disputed rating, the grievance was untimely filed. The Arbitrator found that, under the parties' collective bargaining agreement, a grievance must be filed "'in writing within 30 calendar days of the date that the employee . . . became aware . . . of the act [complained of][.]'" Award at 2 (Article 13, section 7 of the parties' agreement) (emphasis in original). The Arbitrator rejected the Union's argument that the grievant's refusal to sign her performance rating constituted the filing of a grievance. Consequently, the Arbitrator denied the grievance.

III. The Union's Exception

The Union contends that the Arbitrator's award is based on a nonfact. The Union argues that because the grievant attempted to resolve her performance appraisal dispute with her supervisor informally, the time limit for filing her grievance did not begin until the informal attempt failed.

IV. The Agency's Opposition

The Agency argues that the Union's exception does not demonstrate that the award is deficient.

V. Analysis and Conclusions

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 342 (1991).

The Union has not demonstrated that the Arbitrator's award is based on a nonfact. Rather, the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence and interpretation of the parties' collective bargaining agreement in resolving a question of procedural arbitrability. As such, it provides no basis on which to find the award deficient. See, for example, id. at 343. Accordingly, we will deny the Union's exception.

VI. Decision

The Union's exception is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)