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50 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2921

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY & AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

0-AR-2698

_____

DECISION

February 27, 1995

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Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Joe D. Woodward 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 did not file an opposition to the Union's exception.

The Arbitrator determined that the Union's grievance was not arbitrable.

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 and, therefore, we deny the Union's exception.

II. Background and Arbitrator's Award

The Union filed a grievance on February 2, 1994, alleging that two employees were improperly detailed to higher-graded positions on or about June 1, 1991, and May 11, 1992, and that it became aware of the alleged violation on or about January 12, 1994. The Arbitrator determined that there were threshold arbitrability issues concerning, among other things, whether the grievance was incorrectly filed as a Union grievance under Article 43, Section 8 of the parties' master agreement and whether the grievance was timely.^(*)

The Arbitrator found that the grievance was not a Union grievance under Article 43, Section 8 and was not timely filed under the parties' agreement. Therefore, the Arbitrator determined that the grievance was not arbitrable.

III. Union's Exception

The Union contends that the award does not draw its essence from the parties' agreement and, therefore, is inconsistent with law, rule, and regulation.

IV. Analysis and Conclusions

The award is based on the Arbitrator's determination of the procedural arbitrability of the grievance under the parties' collective bargaining agreement. Consistent with decisions of the Federal courts reviewing arbitration awards in the private sector, the Authority has repeatedly and uniformly held that an arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to challenge. For example, U.S. Department of the Air Force, Oklahoma Air Logistics Center, Tinker Air Force base and American Federation of Government Employees, Local 916, 35 FLRA 700, 702 (1990). See also U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 49 FLRA 982, 989-90 (1994). At the same time, by stating that this is generally the case, the Authority has implicitly acknowledged that an arbitrator's determination as to procedural arbitrability may in some circumstances be deficient. In order to clarify our previous decisions in procedural arbitrability cases, we now hold that an arbitrator's determination as to procedural arbitrability may be found deficient on grounds other than grounds that challenge the determination of procedural arbitrability itself. For example, a procedural arbitrability award may be found deficient because it resulted from bias on the part of the arbitrator or because the arbitrator exceeded his or her authority.

The Union's contention that the award does not draw its essence from the parties' agreement constitutes a challenge to the Arbitrator's determination of the procedural arbitrability of the grievance under that agreement. As no other grounds for finding the award deficient are asserted by the Union, the Union's exception does not constitute a basis for finding that the award is deficient under section 7122(a) of the Statute. For example, U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115-16 (1991). Because the Union's claim that the award is inconsistent with law, rule, and regulation is based on its contention that the award does not draw its essence from the parties' agreement, we also find that this claim does not provide a basis for finding the award deficient.

V. Decision

The Union's exception is denied.

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

*/ Article 43, Section 8 of the parties' agreement provides, in pertinent part, as follows:

Section 8. Union-Management Procedure

a. Level of Filing Grievances: . . . The purpose and intent of this Section is to provide a grievance process to resolve matters between the Union at the level of recognition and the Commander, AAFES, and at any level designated in 8(b)., below.

b. Within 10 calendar days after the effective date of this Master Agreement, each party will serve upon the other a written statement designating those titles which will be appropriated for service of grievances under this Section. . . .

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