33:0412(55)AR - - AFGE Local 1917 and Justice, INS - - 1988 FLRAdec AR - - v33 p412



[ v33 p412 ]
33:0412(55)AR
The decision of the Authority follows:


33 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1917

and

DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

0-AR-1572

DECISION

October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Joel M. Douglas filed on behalf of American Federation of Government Employees, Local 1917 (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 Department of Justice, Immigration and Naturalization Service (the Agency) filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance because the Union did not prosecute the grievance in a timely fashion. The Union's exceptions allege, among other things, that the Arbitrator improperly relied on another arbitrator's award and considered established past practice that is not consistent with the parties' negotiated agreement. For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

On May 21, 1986, the Union invoked arbitration over a grievance which concerned the use of official time. The Agency requested a list of arbitrators from the Federal Mediation and Conciliation Service (FMCS) on May 30, 1986, pursuant to the procedure outlined in the parties' negotiated agreement. The FMCS submitted a list of arbitrators on July 21, 1986. Article 48, Section B of the parties' negotiated agreement states that "[t]he parties shall telephonically select an arbitrator within five (5) working days after receipt of such a list." Arbitrator's Award at 3.

On May 27, 1987, almost a year after FMCS submitted its list of arbitrators, the Union President requested "to calendar" the grievance. Id. On June 17, 1987, the Union requested that the Agency join with it in seeking a new list of arbitrators from FMCS for the grievance. After refusing to go forward in the selection process for a new arbitrator, the Agency joined with the Union in selecting an arbitrator from the original list. However, the Agency informed the Union, both before and after selection of the arbitrator, that it intended to raise arbitrability as a defense.

The Arbitrator found that the Agency successfully established by a preponderance of the evidence that the grievance was not prosecuted in a timely fashion. He found that: (1) the parties' agreement provides for selection of an arbitrator in 5 days; (2) the Union waited almost a year from receipt of the FMCS list before selection of an arbitrator, and (3) "[n]o reasons were established on the record for this lengthy delay in the arbitrator selection process." Arbitrator's Award at 6.

The Arbitrator also found that "[t]he union was clearly placed on notice that the agency followed a practice of unilaterally closing pending arbitration cases that have gone beyond a reasonable time period without union action." Id. He concluded that "[t]he agency position that the union waives its rights to pursue after a one year delay in taking part in the selection process is well established, engrained in the Agreement and persuasive to the undersigned." Id.

The Arbitrator also rejected the Union's argument that the Agency had waived its right to raise arbitrability as a defense because it failed to raise it at the third step grievance hearing. The Arbitrator concluded that the fact that the procedural violation had not yet occurred was controlling as a defense to the Agency's failure to raise the arbitrability question at the third step.

Finally, the Arbitrator referred to an award of another arbitrator (A.T. Jacobs) in a "virtually identical" case involving the same parties. Arbitrator's Award at 7. He noted that the other arbitrator reached the same conclusion--that the grievance in that case had not been processed in a timely fashion. He found that no evidence had been submitted by the Union as to how the instant grievance differed or as to why he should reach a different conclusion. While finding the arbitrator's decision in that case to be persuasive, he noted that his decision in this case "was reached on the fact pattern unique to this claim." Id. at 8.

Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Exceptions

The Union contends that the award should be overturned because the Arbitrator relied on evidence which is not part of the record, specifically the award of Arbitrator Jacobs, which did not issue until the record was closed in the instant case. The Union also argues that the Arbitrator's statement in the award that the Union asked him to distinguish the other arbitrator's award is false, and, therefore, the Arbitrator's award should be rejected because he included as a basis for his award facts and arguments that were not part of the record. Finally, the Union argues that the Arbitrator should not have considered established past practice that is inconsistent with clear wording in the negotiated agreement.

B. Opposition

The Agency contends that it submitted a copy of Arbitrator Jacobs' award with its brief to the Arbitrator in this case, and that the Union, which was served with a copy of the Agency's brief, should have raised this issue with the Arbitrator. The Agency also disputes the Union's characterization of the other award as evidence and argues that the Arbitrator merely used a relevant source as an aid in interpreting the collective bargaining agreement. The Agency also contends that it was proper for the Arbitrator in this case to consider the other arbitrator's award--even if that award is considered to be evidence--because it constituted "new material evidence." Opposition at 6. Finally, the Agency contends that even assuming that the prior award was evidence and that the Arbitrator's reliance on the award was improper, the Arbitrator's action was harmless because it is clear that the Arbitrator would have reached the same conclusion whether or not he had considered the other award.

The Agency contends that the Union's exceptions concerning the Arbitrator's use of past practice in interpreting the agreement are deficient because: (1) questions as to whether there was compliance with the procedural requirements of the negotiated grievance procedure are left to arbitrators; and (2) the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation of the agreement. Finally, the Agency argues that there is no clear contractual language which is inconsistent with the past practice.