Parties: NFFE and Army Aviation and Troop Command, St. Louis, MO ID: 50 FLRA 3 / 50 FLRA No. 1 / 50:3(1)AR Date: August 12, 1994 Type: AR Volume: 50 Arbitrator: Smith, Jr. CaseNo: 0-AR-2637 ========== Synopsis: ========== The Authority dismissed the Union's exceptions because they were not filed in the Authority's Docket Room within the prescribed time limit. The Authority noted that the time limit for filing exceptions may not be extended or waived by the Authority. In order to be considered timely, an exception to the award had to be either postmarked by the U.S. Postal Service or filed in person at the Authority no later than June 22, 1994. The Union mailed its exceptions to the Authority's Denver Region. The Denver Region forwarded the exceptions to the Authority's Case Control Office. The Union's exceptions were considered filed on July 7, 1994, the date the exceptions were received in the Docket Room of the Authority's Case Control Office. The Authority noted that the place and method of filing documents with the Authority is set out at subsection (a) of section 2499.24 of the Authority's Regulations. Parties filing actions with the Authority are responsible for being knowledgeable of the statutory and regulatory filing requirements. ***** ***** ***** ***** ***** ***** Parties: Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK and AFGE, Local 916 ID: 50 FLRA 5 / 50 FLRA No. 2 / 50:5(2)AR Date: September 13, 1994 Type: AR Volume: 50 Arbitrator: CaseNo: O-AR-2582 ========== Synopsis: ========== The Authority dismissed the grievant's second request for reconsideration. The Authority found that the grievant was not a "party" at the arbitration proceeding. The Authority noted that its Regulations provide that "[e]ither party to an arbitration proceeding may file an exception to an arbitrator's award rendered pursuant to the arbitration." 5 C.F.R.  2425.1(a). Although the grievance concerned the grievant, nothing in the record established that the grievant was a "party" within the meaning of 5 C.F.R.  2425.1(a), 2429.17. As the grievant was not a party to the proceeding, the grievant did not have standing under 5 C.F.R.  2425.1(a) to file exceptions to the arbitrator's award or to file a request for reconsideration of the Authority's decision under 5 C.F.R.  2429.17. In addition, the Authority noted that the grievant's second request for reconsideration was untimely filed. The Authority added that it would not entertain any further motions, requests, or arguments by the grievant in the above-captioned case. ***** ***** ***** ***** ***** ***** Parties: Defense Commissary Agency, Defense Commissary Store, Fort Drum, NY and NAGE, SEIU, and AFGE, Local 400, AFL-CIO ID: 50 FLRA 7 / 50 FLRA No. 3 / 50:7(3)RO Date: September 19, 1994 Type: RO Volume: 50 Arbitrator: CaseNo: BN-RO-40015 ========== Synopsis: ========== This case came before the Authority on an application for review filed by the American Federation of Government Employees, Local 400, AFL-CIO (AFGE) under section 2422.17(a) of the Authority's Rules and Regulations. The Authority found that AFGE established that compelling reasons existed for granting the application for review of the RD's decision and order under section 2422.17(c) of the Authority's Rules and Regulations. The Authority noted that AFGE established that the RD's denial of AFGE's request to intervene raised a substantial question of law or policy because of the absence of, or a departure from, Authority precedent under section 2422.17(c)(1) regarding whether AFGE had a right in the circumstances of this case to be served with a copy of the petition and/or a right to intervene in the proceeding. The Authority also found that AFGE's application raised a question of whether the RD's ruling denying AFGE's request to intervene resulted in prejudicial error to AFGE under section 2422.17(c)(3). In particular, the Authority granted the application for review as to the following issues: (1) whether AFGE was entitled under section 2422.2(e)(3) of the Authority's Regulations to be served with a copy of NAGE's petition and, if so, whether the failure to serve AFGE with a copy of the petition improperly denied AFGE an opportunity to timely intervene in this case; and (2) whether AFGE is an "incumbent exclusive representative" so as to qualify as an intervenor under section 2422.5(c) of the Authority's Regulations. ***** ***** ***** ***** ***** ***** Parties: Defense Commissary Agency, Marine Corps Logistics Base, Barstow, CA and AFGE, Local 1482 ID: 50 FLRA 11 / 50 FLRA No. 4 / 50:11(4)RO Date: November 7, 1994 Type: RO Volume: 50 Arbitrator: CaseNo: SF-RO-40071 ========== Synopsis: ========== The Petitioner sought review of the Acting Regional Director's (ARD's) Decision and Order dismissing the petition in this case. The Authority denied the application for review. The Authority found that the Union failed to establish compelling reasons for granting the application for review under section 2422.17(c) of the Authority's Rules and Regulations. Specifically, the Union did not show that the ARD erred in either rejecting the undated signatures on the authorization petitions or failing to notify the Union of the requirement that such signatures must be dated. The Authority noted that section 2421.16 of the Authority's Rules and Regulations expressly requires that authorization petitions submitted to establish a showing of interest must be signed by employees and dated. The Authority further noted that it has previously held that parties dealing with the Federal Government are charged with knowledge of, and are bound by, statutes and lawfully promulgated regulations. Moreover, the Authority found that the ARD did not err in notifying the Union of its insufficient showing of interest, allowing the Union 3 days to augment that showing, and denying the Union's request for an extension of time to cure the deficiency. Finally, the Authority found that the Union did not establish, and it is not otherwise apparent, that the regional office prejudged this case in any manner. ***** ***** ***** ***** ***** ***** Parties: VA, Eisenhower Medical Center, Leavenworth, KS and AFGE, Local 85 ID: 50 FLRA 16 / 50 FLRA No. 5 / 50:16(5)AR Date: November 16, 1994 Type: AR Volume: 50 Arbitrator: Clark CaseNo: 0-AR-2649 ========== Synopsis: ========== The Arbitrator denied the grievance over an employee's suspension. He found that both the discipline and the Agency's step 3 response were timely under the terms of the parties' collective bargaining agreement. He also found that the suspension was for just and sufficient cause under the agreement. The Authority concluded that the Union's exception failed to establish that the award was deficient, and denied the Union's exception. The Authority found that the Union failed to establish that the Arbitrator's ruling that the discipline was timely did not draw its essence from the parties' collective bargaining agreement. The Authority noted that nothing in the Arbitrator's interpretation or application of Article 12, Section 4 disregarded the agreement or was irrational, unfounded or implausible. In addition, the Authority found that the Union's contention concerning the Arbitrator's ruling on the timeliness of the Agency's step 3 response constituted disagreement with his determination on the procedural arbitrability issue. The Authority noted that procedural arbitrability determinations by arbitrators are generally not subject to challenge and such exceptions constitute nothing more than disagreement with the arbitrator's determination on such an issue. The Authority considered the Union's arguments that the Arbitrator erred by considering or failing to consider certain evidence and by failing to rule on the procedural issues before hearing the merits also as disagreement with the Arbitrator's procedural arbitrability ruling. ***** ***** ***** ***** ***** ***** Parties: AF, OK City Air Logistics Center, Tinker AFB, OK and AFGE, Local 916 ID: 50 FLRA 21 / 50 FLRA No. 6 / 50:21(6)AR Date: November 17, 1994 Type: AR Volume: 50 Arbitrator: Williams CaseNo: 0-AR-2600 ========== Synopsis: ========== The Arbitrator denied in part and sustained in part a grievance alleging that the Agency failed to pay an appropriate rate of environmental differential pay ("EDP") to employees who had been exposed to hazardous metal dust. The Arbitrator ordered the Agency to pay the grievants 4 percent EDP retroactive to the first date of their exposure to hazardous metal dust. The Authority concluded that the portion of the Arbitrator's award directing the Agency to pay EDP to the grievants for their exposure to hazardous metal dust prior to November 1, 1970, was deficient under section 7122(a)(1) of the Statute. The Authority modified that portion of the award. The Authority noted that the Federal government is subject to monetary liability only to the extent it has waived its sovereign immunity and specifically authorized such liability. Thus, the Authority explained that the statutory basis for EDP claims is 5 U.S.C.  5343(c)(4)(1988), which directs the Office of Personnel Management (OPM) to provide, by regulation, proper differentials for duty involving unusually severe working conditions or unusually severe hazards. The Authority further explained that in establishing those regulations, OPM promulgated FPM Supplement 532-1, which states, in pertinent part, that "an agency shall pay the environmental differential in Appendix J to a wage grade employee when the employee is performing assigned duties which expose him/her to an unusually severe hazard, physical hardship, or working condition listed in Appendix J, on or after the effective date specified." Because the effective date specified in Appendix J for the poison/toxic chemical category is November 1, 1970, this is the earliest date on which EDP could be paid for exposure to hazardous metal dust. Therefore, the award was modified. ***** ***** ***** ***** ***** ***** Parties: Naval Facilities Engineering Service Center, Port Hueneme, CA and NAGE Local R12-28; Naval Facilities Engineering Center and NAGE, FUSE, Local R12-196 ID: 50 FLRA 26 / 50 FLRA No. 7 / 50:26(7)CU and RA Date: November 18, 1994 Type: CU and RA Volume: 50 Arbitrator: CaseNo: SF-CU-40012, SF-CU-40020, SF-CU-40013, SF-RA-40030, SF-RA-40031, SF-RA-40032 ========== Synopsis: ========== The Authority granted the application for review, in part, and denied it in part. With respect to the first three grounds, the Authority found that NAGE failed to show that the ARD committed prejudicial error. With respect to the fourth ground, the Authority found that NAGE established that compelling reasons existed for granting review of two aspects of the ARD's decision and order under section 2422.17(c) of the Authority's Rules and Regulations. The Authority concluded that there were extraordinary circumstances, within the meaning of section 2422.17(c)(2) of the Authority's Regulations, warranting reconsideration of the Authority's policy and criteria for determining successorship in cases where the continued appropriateness of an existing unit is questioned and accretion is claimed. In particular, the Authority found that it was unclear from our precedent whether and/or how accretion principles are or should be applied to determine whether the appropriateness of bargaining units remains unimpaired as a result of a reorganization. The Authority also granted NAGE's application for review under section 2422.17(c)(1) of the Authority's Rules and Regulations in order to consider this issue of whether the filing of an RA petition raises a question concerning representation as to the representative status of an incumbent labor organization so as to preclude a finding of successorship. In accordance with section 2422.17(g) of our Rules and Regulations, the parties were directed to file briefs within a specified period of time. In addition, the Authority noted that other interested persons may file briefs as amicus curiae on these issues within the same period. ***** ***** ***** ***** ***** ***** Parties: Dept. of Education and AFGE, Council 252, Local 2607 ID: 50 FLRA 34 / 50 FLRA No. 8 / 50:34(8)AR Date: December 8, 1994 Type: AR Volume: 50 Arbitrator: Simpkins CaseNo: 0-AR-2580 ========== Synopsis: ========== The Arbitrator sustained a grievance over the employee's suspension for alleged misconduct. After finding that the suspension was unwarranted and unjustified, he reduced the discipline to a letter of reprimand and directed the Agency to make the grievant whole for any wages not received as a result of the suspension. The Authority remanded the matter to the parties for submission to the Arbitrator so that he could determine whether, within the meaning of 5 C.F.R  550.805(C)(2), the grievant's unavailability for work during the period of his suspension was due to an incapacitating illness that was caused by, or related to, the unwarranted or unjustified suspension. ***** ***** ***** ***** ***** ***** Parties: AFGE, Local 2025 and Air Force. Ninth Reconnaissance Wing, Beale AFB, CA ID: 50 FLRA 39 / 50 FLRA No. 9 / 50:39(9)AR Date: December 13, 1994 Type: AR Volume: 50 Arbitrator: Rothstein CaseNo: O-AR-2619 ========== Synopsis: ========== The Arbitrator sustained, in part, a grievance alleging that the Agency violated the parties' agreement by failing to document the assignment of certain functions of a Supervisory Recreation Specialist position to the grievant. The Arbitrator directed the Agency to properly document the assignment as a detail. However, the Arbitrator determined that the duties performed by the grievant during the detail did not warrant a temporary promotion. The Union filed exceptions to the latter. The Authority dismissed the Union's exceptions. The Authority first noted that grievances concerning whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a higher-grade position do not concern the classification of a position within the meaning of section 7121(c)(5). In this case, the Authority found that the Arbitrator did not reclassify the position. Rather, the Authority found that the Arbitrator analyzed the grade levels of various duties in order to determine whether the grievant performed higher-grade duties, and concluded that the duties performed by the grievant did not warrant a temporary promotion. The Authority also rejected the contention that the award did not draw its essence from the agreement. Lastly, the Authority denied the Union's request to remand the portion of the award concerning the reclassification matter. The Authority noted that in view of its conclusion that the matter did not involve the reclassification of the position, the premise of the Union's request was erroneous.