American Federation of Government Employees, Local 916 and Defense Logistics Agency, Defense Distribution Depot Oklahoma (Authority decision, August 16, 1996)

Final FLRA decision. The Authority denies 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 address an unfair labor practice.

Plain-English summary

AFGE Local 916 alleged that a Defense Logistics Agency depot conducted a classification survey without the advance notice required by the parties' agreement. An arbitrator found that the union knew of the relevant desk audit in late 1994 but waited until March 1995 to file its grievance, beyond the agreement's 20-day limit. The Federal Labor Relations Authority denied the union's exceptions. The union's arguments about when it learned of the survey and how the agreement should be read directly challenged the arbitrator's procedural timeliness ruling, which the Authority would not review on those grounds. The Authority did not decide whether the agency had conducted a survey or breached the notice provision.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; grievance dismissal as untimely upheld.
• Key point: A direct challenge to the arbitrator's application of the contractual filing deadline did not establish a deficient award.

Full text (FLRA public release)

[ v52 p42 ]
52:0042(3)AR

The decision of the Authority follows:

52 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE DISTRIBUTION REGION WEST

DEFENSE DISTRIBUTION DEPOT OKLAHOMA

OKLAHOMA CITY, OKLAHOMA

(Agency)

0-AR-2818

_____

DECISION

August 16, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator David R. Acheson 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator determined that the Union's grievance was not arbitrable because it was not timely filed. For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance contending that the Agency had violated the parties' Master Labor Agreement (MLA) by allegedly conducting a classification survey without officially notifying the Union.(1) The grievants claimed that they became aware of the survey on March 10, 1995, and promptly filed a grievance thereafter. They further argued that the Union should have been notified of the alleged classification survey so as to have had a representative present at its opening, as required by the parties' agreement.

The Agency denied that a classification survey, within the meaning of the parties' agreement, had occurred. The Union then submitted the matter to arbitration, where the Arbitrator framed the issues as follows:

1. Is the matter procedurally arbitrable due to the fact the
   grievance was initiated more than twenty (20) days after the "opening" of the so-called "classification survey?"(2)

2. Did the Agency violate the agreements between the parties when
   they conducted "an arguably termed a [sic] 'classification survey'" in September of 1994? If so, what shall the remedy be?

Award at 2.

The Arbitrator found that the grievance was untimely filed and that the Union had been well aware of the "survey" prior to March 10, 1995. Specifically, the Arbitrator noted that, although the Union "was aware of the desk audit late in the year of 1994," it filed the grievance on March 29, 1995, well in excess of the twenty-day limitation set forth in the parties' agreement. Id. at 3. As a result, the Arbitrator found that the grievance was not procedurally arbitrable.

III. Exceptions

A. Union's Exceptions

The Union argues that it became aware of the "classification survey" on March 10, 1995, and that, therefore, the grievance filed on March 29, 1995, was timely. Furthermore, the Union argues that the award fails to draw its essence from the parties' agreement because the award does not represent a plausible interpretation of the MLA. According to the Union, management failed to timely raise the issues of grievability and arbitrability.

B. Agency's Opposition

The Agency argues that the Union's exceptions constitute disagreement with the Arbitrator's findings of fact and, as such, provide no basis for review. Additionally, the Agency argues that the Arbitrator's interpretation of the MLA is plausible because there is no time limit in the agreement on management's raising the issue of arbitrability or grievability.

IV. Analysis and Conclusions

An arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to direct challenge. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such determinations can be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. Id. at 186. The Union's exception that the grievance was timely filed, as well as the contention that the award fails to draw its essence from the parties' agreement, directly challenge the Arbitrator's determination of procedural arbitrability. Id. See also American Federation of Government Employees, Local 3614, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 51 FLRA No. 128, slip op. at 3 (1996). As such, these exceptions provide no basis on which to find the award deficient.

V. Decision

The Union's exceptions are denied.

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

1. Article 12, Section 5 of the
   MLA states, in relevant part:

B. When a classification survey at a PLFA involves unit employees, the DLA Council Local is permitted to have an observer present at the opening of the survey . . . . The supervisors and the DLA Council Local will be notified in advance of classification survey openings.

Union Exceptions, Attachment 7 at 21.

2. Article 36, Section 8 of the
   MLA states, in relevant part:

A. Time frames may be extended by mutual
agreement . . . .

Step 1. The informal grievance must be initiated within 20 calendar days from the date the grievant(s) became aware of the act or occurrence that gave rise to the grievance.

Union Exceptions, Attachment 7 at 74.