Department of the Air Force, Warner Robins Air Force Base and American Federation of Government Employees, Local 987 (Authority decision, August 31, 1988)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award dismissing a scheduling grievance as untimely. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

Warner Robins Air Force Base changed the work tour for some commissary butchers. AFGE Local 987 filed a grievance, but an arbitrator found it was late under the collective bargaining agreement and dismissed it without reaching the merits. The union challenged both the timeliness ruling and a comment the arbitrator made about the underlying schedule dispute. The Authority found that disagreement with the arbitrator's timeliness finding did not show a deficient award. It also explained that the arbitrator's comment was not a merits ruling and denied the exceptions.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; late grievance remains dismissed.
• Key point: The arbitrator’s separate comment on the merits did not turn a timeliness dismissal into a merits award.

Full text (FLRA public release)

[ v32 p1081 ]
32:1081(149)AR

The decision of the Authority follows:

32 FLRA No. 149

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

WARNER ROBINS AIR FORCE BASE

Activity

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

LOCAL 987

Union

Case No. O-AR-1561

DECISION

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator Samuel J. Nichols, Jr. A grievance was filed and submitted to arbitration contesting a change in the tour of duty for certain butchers at the Activity's commissary. The Arbitrator determined that the grievance had not been timely filed under the provisions of the parties' collective bargaining agreement. Accordingly, he found that the grievance was not arbitrable and denied the grievance.

The Union filed exceptions 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 (the Agency) filed an opposition on behalf of the Activity.

We conclude that the Union has failed to establish that the award is deficient because it is contrary to law and the parties' collective bargaining agreement. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Activity implemented a new tour of duty for certain butchers at the commissary. A grievance was filed claiming that the new tour of duty was contrary to law and the parties' collective bargaining agreement. The grievance was submitted to arbitration. During the arbitration proceeding, the Activity contended that the grievance had not been timely filed.

The Arbitrator determined that under Article 6, Section 6.08 of the parties' collective bargaining agreement, the grievance had not been timely filed. Accordingly, he found that the grievance was not arbitrable and that he had no jurisdiction to consider the grievance. After finding that he had no jurisdiction to consider the grievance, the Arbitrator stated that "if it be of any consequence to the parties, the Arbitrator is of the mind that the substantive merits of the case must be seen in Management's favor." Arbitrator's Opinion at 10. The Arbitrator denied the grievance.

III. Exceptions

The Union contends "[w]ith respect to that part of the Arbitration Award that dismissed AFGE's grievance for being untimely" that contrary to the determination of the Arbitrator, the grievance was filed in a timely manner. Union's Exceptions at 1. The Union contends that "[w]ith respect to that part of the Arbitration Award that held in favor of the Government on the merits of the grievance," the award is contrary to law and the parties' collective bargaining agreement. Id.

The Agency contends that the exceptions provide no basis for finding the award deficient and should be denied.

IV. Discussion

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish 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 exception contending that the award is deficient because the grievance was filed in a timely manner constitutes nothing more than disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the grievance was timely filed. This exception provides no basis for finding the award deficient. See, for example, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 30 FLRA 1151 (1988) (an exception which simply disagrees with an arbitrator's determination on the procedural arbitrability of the grievance provides no basis for finding the award deficient).

The Union's exception "to that part of the Arbitration Award that held in favor of the Government on the merits of the grievance" misconstrues the award. The Arbitrator denied the grievance because he determined that it was not arbitrable and that he had no jurisdiction to consider the grievance. The Arbitrator's statement in his opinion accompanying the award that the merits of the case were in management's favor was merely a comment by the Arbitrator to the parties for whatever "consequence" it might be. Arbitrator's Opinion at 10. This statement was separate from the award. There was no award by the Arbitrator holding "in favor of the Government on the merits of the grievance." Union's Exceptions at 1. Therefore, this exception provides no basis for finding the award to be deficient.

V. Decision

The Union's exceptions are denied.

Issued, Washington, D.C.,

_______
Jerry L. Calhoun,
Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS
AUTHORITY

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