After a series of confrontations between the grievant and an Agency supervisor involving the grievant’s HIV status, the Union filed a grievance. The grievance alleged that the Agency violated (1) Article 23, Section 21.C of the parties’ agreement (Article 23-21C), which addresses AIDS in the workplace, and (2) “all other relevant sections of the [parties’ agreement], laws[,] and regulations.”^[1] Subsequently, at the arbitration hearing and in its post-hearing brief, the Union also claimed that the Agency violated specific provisions of the Rehabilitation Act,^[2] the Privacy Act,^[3] § 7116 of the Federal Service Labor-Management Relations Statute (the Statute),^[4] and the parties’ agreement (other than Article 23-21C). When the matter was submitted to arbitration, the Arbitrator framed the issue, as relevant here, as whether the grievance was arbitrable.

 

                The Arbitrator first addressed the Union’s claims that the Agency violated the Rehabilitation Act, the Privacy Act, § 7116, and the parties’ agreement  (other than Article 23-21C).  The Arbitrator considered whether the Union had met the requirements under Article 33, Section 6 of the parties’ agreement        (Article 33-6), which states that “[a]ll grievances filed under [the parties’ agreement] will include . . . [,][i]f appropriate, the provision(s) of law, regulation, or        [the parties’ agreement] which allegedly has been misinterpreted, misapplied, or violated.”^[5] She found that Article 33-6 required that the Union plead in its grievance which specific provisions of law, regulation, or the parties’ agreement the Agency allegedly violated. The Arbitrator found that the Union had not met that specificity requirement because the grievance alleged only that the Agency violated Article 23-21C, and did not specify any provisions of law, regulation, or other provisions of the parties’ agreement until the hearing and its post-hearing brief. For these reasons, the Arbitrator found that the Union’s claims that the Agency violated the Rehabilitation Act, the Privacy Act, § 7116, and the parties’ agreement (other than Article 23-21C) were not procedurally arbitrable.

 

 

 

 

                The Agency contends that the Union’s exceptions are untimely because they were filed “one day late.”^[6]  Section 7122(b) of the Statute requires that exceptionsbe filed within thirty days from the date of service of the award.^[7]  Under § 2425.2(b) of the Authority’s Regulations,^[8] the thirty-day period for filing exceptionsbegins to run the day after the award’s date of service.

                It is undisputed that the Arbitrator served the award on the parties by e-mail on June 18, 2013.^[9] Counting thirty days beginning on June 19, 2013 – the day after the award’s date of service – in accordance with § 2425.2(b), the due date for filingexceptions was July 18, 2013. Because the Union filed its exceptions with the Authority on July 18, 2013, we find the exceptions timely.

 

 

                The Union argues that the Arbitrator abused her discretion because her “failure to find any wrongdoing in light of the admissions of unlawful behavior is unreasonable and out of proportion with the facts in this case.”^[10] Section 2425.6(e)(1) of the Authority’s Regulations provides that an exception “may be subject to dismissal or denial if:  [t]he excepting party fails to raise and support” the grounds listed in § 2425.6(a)-(c), “or otherwise fails to demonstrate a legally recognized basis for setting aside the award.”^[11]  Thus, an exception that does not raise a recognized ground is subject to dismissal under the Authority’s Regulations.^[12]  The Union’s argument does not articulate a ground currently recognized by the Authority for reviewing an arbitration award.^[13]  Because the Union does not raise a recognized ground or cite legal authority to support a ground not currently recognized by the Authority, we dismiss the exception.^[14]

IV.          Analysis and Conclusions

 

                The Union contends that the Arbitrator erred in determining that the grievance was non-arbitrable.^[15]  In particular, the Union argues that the Arbitrator erroneously determined that the grievance lacked the specificity required to support the Union’s allegations that the Agency violated the Rehabilitation Act, the Privacy Act, and § 7116.^[16] In the Union’s view, this part of the award:  (1) is based on nonfacts;^[17] (2) fails to draw its essence from the parties’ agreement;^[18] and (3) is contrary to law.^[19] 

 

                Procedural arbitrability involves questions of whether a grievance satisfies a collective-bargaining agreement’s procedural conditions, while substantive arbitrability involves questions of whether the grievance’s subject matter is arbitrable.^[20] An arbitrator’s determination as to whether a grievance contains sufficiently specific alleged violations of law, as required by a collective-bargaining agreement, concerns the grievance’s procedural arbitrability.^[21] 

 

                The Authority generally will not find an arbitrator’s ruling on a grievance’s procedural arbitrability deficient on grounds that directly challenge the procedural-arbitrability ruling itself.^[22]  This includes claims that an award is based on a nonfact^[23] or fails to draw its essence from a collective-bargaining agreement.^[24]  However, a procedural-arbitrability determination may be directly challenged and found deficient on the ground that it is contrary to law.^[25] For a procedural-arbitrability determination to be found deficient as contrary to law, the excepting party must establish that the determination conflicts with statutory procedural requirements that apply to the parties’ negotiated grievance procedure.^[26]

 

 

                In her award, the Arbitrator did not address the Union’s allegations that the Agency violated the Rehabilitation Act, the Privacy Act, § 7116, and certain provisions of the parties’ agreement, because she found that the grievance did not articulate these alleged violations with the specificity required by Article 33-6.^[27] This finding is a procedural-arbitrability determination.^[28] 

 

                The Union argues that this part of the award is based on two nonfacts:  (1) that “Article 33 [of the parties’ agreement] requires citation to law[, rather than a] description of the law violated”^[29] and (2) that “the Step[-]1 grievance did not specify . . . provisions of law violated.”^[30]  The Union also argues that this part of the award does not draw its essence from the parties’ agreement because the Arbitrator erroneously interpreted Article 33-6 to require that the grievance include citations to alleged violations of law.^[31] Because nonfact and essence exceptions do not provide a basis for challenging an arbitrator’s procedural-arbitrability determination, these Union exceptions do not provide a basis for finding the award deficient.^[32]  

 

                Further regarding its nonfact exception, the Union’s reliance on GSA, Region 9^[33] to support that exception is misplaced. In GSA, Region 9, the Authority resolved on its merits a union’s nonfact challenge to an arbitrator’s procedural-arbitrability determination and remanded the case to the arbitrator.^[34] But the Authority subsequently “clarif[ied its] previous decisions in procedural arbitrability cases,”^[35] holding that it will not find an arbitrator’s ruling on a grievance’s procedural arbitrability deficient on grounds, like nonfact, that directly challenge the procedural-arbitrability ruling itself.^[36] And the Authority repeated this clarification in a sequel to GSA, Region 9, when the union excepted to the arbitrator’s decision on remand.^[37]   Consequently, GSA, Region 9 does not support the Union’s nonfact challenge to the Arbitrator’s procedural-arbitrability determination in this case. 

 

 

 

                The Union asserts that the award conflicts with § 7121(b)(1)(A) and (B) of the Statute because requiring the grievance to include legal citations is not “fair and simple” and does not “provide for expeditious processing.”^[38] Specifically, the Union contends that “[w]hen the Agency is placed on actual notice by the grievance documents, then requiring a lay union official to know all citations to law is a burdensome and unnecessary obstacle . . . which the grievance was meant to eliminate.”^[39]

                The Arbitrator interpreted Article 33-6 as requiring the Union, in its grievance, to state which specific provisions of law, regulation, or the parties’ agreement the Agency allegedly violated.^[40] This interpretation, even if it adds to a party’s requirements in filing a grievance, is not inconsistent with § 7121(b)(1) because, as the Authority held in AFGE, Local 1235,^[41] this section of the Statute merely sets forth “broad general criteria” concerning the character of negotiated grievance procedures.^[42] The Union’s reliance on similar arguments that the Authority rejected in AFGE, Local 1235 is also unavailing. And although the Union argues that the decision in AFGE, Local 1235 “was wrongly held,” the Union provides no basis for revisiting that decision.^[43]  For these reasons, the exception does not establish that the award is contrary to law.^[44]

 

 

 

 

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