34:0568(95)AR - - Oklahoma City Logistics Command, Tinker AFB and AFGE Local 916 - - 1990 FLRAdec AR - - v34 p568



[ v34 p568 ]
34:0568(95)AR
The decision of the Authority follows:


34 FLRA No. 95

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

OKLAHOMA CITY AIR LOGISTICS COMMAND

TINKER AIR FORCE BASE

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 916, AFL-CIO

0-AR-1602

DECISION

January 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John Canestraight. The Arbitrator concluded that the grievance was not arbitrable under the master collective bargaining agreement.

The American Federation of Government Employees, Local 916, AFL-CIO (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 Oklahoma City Air Logistics Command, Tinker Air Force Base (the Agency) filed an opposition to the exceptions.

For the reasons set forth below, we find that the Union has failed to demonstrate that the award is contrary to law, rule or regulation, or that the award is deficient on any other grounds similar to those applied by Federal courts in private sector labor relations cases. We deny the exceptions.

II. Background and Arbitrator's Award

The Arbitrator framed the issue before him as follows: "Has the AFGE Local 916 violated Section 7.103: [sic] 'Date and Site of Arbitration' provision of the Collective Bargaining Agreement? If so, what is the proper remedy?"

Section 7.03 of the agreement provides, in relevant part:

a. Upon notification through FMCS [Federal Mediation and Conciliation Service] to the arbitrator of his selection, representatives of the Employer and the Union shall jointly make arrangements for the hearing on a mutually acceptable date. The parties shall make every effort to schedule arbitration hearings arising hereunder within 30 calendar days of notification by the selected arbitrator of his availability.

Section 7.05 of the agreement grants the arbitrator "the authority to make all grievability and/or arbitrability determinations. . . ." Award at 4.

The record indicates that in November 1985, the Union filed a grievance concerning employee exposure to asbestos. The grievance proceeded through the various steps of the negotiated grievance procedure and, ultimately, was scheduled for arbitration. The arbitration hearing was to have taken place on December 10, 1987. Sometime prior to that date, the arbitrator who had been scheduled to hear the case withdrew.

Subsequently, Arbitrator Canestraight was selected to hear the grievance. There was extensive communication between the Arbitrator and the parties concerning the scheduling of the arbitration hearing. The Union originally requested that the grievance be heard sometime after June 1988. The Arbitrator then offered the dates of July 12 and August 15, 1988. At the same time that the Arbitrator offered the parties a choice of hearing dates, the Agency requested that the Arbitrator hear the asbestos grievance on May 3 and reschedule an arbitration hearing involving the suspension of an employee (the suspension grievance) for July 12. The Union then advised the Arbitrator of its position that the suspension grievance should be heard on May 3, as originally scheduled, and that the asbestos grievance should be heard sometime after November 1988.

After receiving additional correspondence from the parties concerning the dates for the asbestos and suspension grievances, the Arbitrator notified the parties on February 23, 1988, that they should be prepared to proceed with both grievances on May 3. At that time, the Arbitrator indicated he would decide which grievance would be heard that day, and which grievance would be heard on July 12.

On March 9, the Agency advised the Arbitrator that it would "go ahead" on the suspension grievance on May 3 if the asbestos grievance was heard on July 12. Award at 10. The Arbitrator thereafter requested that both parties submit briefs concerning the interpretation of that part of Section 7.03 of the agreement dealing with the scheduling of arbitration hearings.

The parties met on May 3 and again on May 17 at which times the scheduling of arbitration hearings was discussed. The Agency advanced the position that the asbestos grievance was not arbitrable under the parties' agreement. The Arbitrator requested additional position statements from the parties and finally closed the record in this case on June 25, 1988. On June 30, 1988, the Arbitrator issued an interim award concluding that the grievance was not arbitrable, released the July 12 hearing date, and indicated that his final decision would be forthcoming.

On July 15, 1988, the Arbitrator issued his award denying the grievance on the basis that it was not arbitrable under the parties' collective bargaining agreement. The Arbitrator found that the Union was offered several dates for the arbitration hearing on the asbestos grievance and that the Union attempted to delay the hearing beyond the dates offered. The Arbitrator found that the Union's subsequent failure to reach agreement with the Agency on a hearing date raised a procedural arbitrability question.

The Arbitrator noted that Section 7.05 of the agreement empowers arbitrators to make all grievability and arbitrability determinations. Section 7.03 provides that the parties shall make "every effort" to schedule arbitration hearings within 30 days of notice of selection by the arbitrator. Award at 12. The Arbitrator found that the language of Section 7.03 was "clear and unambiguous," that the Union failed to meet the "every effort" test contained in that section, and that the Union thereby violated Section 7.03. Id. at 13. Accordingly, the Arbitrator denied the grievance.

III. Union's Exceptions

The Union claims that the award is contrary to various sections of Article 7 of the agreement concerning the establishment of the hearing date for the grievance and the procedures to be followed concerning the hearing. The Union argues that the Arbitrator may not circumvent the agreement by setting hearing dates and that the Arbitrator and the Agency engaged in collusive attempts to prevent the asbestos case from being arbitrated.

The Union also claims that the award is inconsistent with provisions of the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes. More specifically, the Union argues that the Arbitrator violated the Code by: exceeding the limits of his jurisdiction imposed by the agreement; not providing effective service; and failing to exercise the necessary skills and exhibit good judgment in both procedural matters and substantive decisions.

The Union requests that the award be set aside, the grievance sustained, and the grievants made whole. Alternatively, the Union requests that the Arbitrator be removed from the case and that the FMCS provide a panel of arbitrators from which the parties could select another arbitrator.

IV. Agency's Opposition

The Agency argues that the Union's exceptions provide no basis for setting aside the award. The Agency argues that the exceptions merely constitute disagreement with the Arbitrator's ruling on procedural arbitrability, and with the Arbitrator's reasoning and conclusions and interpretation of the agreement. The Agency also argues that the Union failed to prove that the Arbitrator was biased in favor of the Agency.

V. Analysis and Conclusions

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. Specifically, the Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on any other ground similar to those applied by Federal courts in private sector labor-management relations.

Questions concerning the procedural arbitrability of a grievance are appropriate for resolution by an arbitrator. See, for example, American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223 (1988) (the denial of exceptions which merely disagree with an arbitrator's determination on the procedural arbitrability of a grievance is consistent with decisions of Federal courts in private sector labor relations cases) and American Federation of Government Employees, Local 1546 and Sharpe Army Depot, 22 FLRA 60 (1986) (an arbitrator's determination concerning compliance with the procedural requirements of the grievance procedure is not subject to review or challenge before the Authority). In addition, Section 7.05 of the parties' agreement authorized the Arbitrator to resolve the question of arbitrability.

In its first exception, the Union contends that the Arbitrator's award is contrary to provisions in the parties' agreement and that the Arbitrator colluded with the Agency to "attempt to prevent the [a]sbestos [c]ase from being arbitrated[.]" Union Exceptions at 2. The Union offers no support for its assertion that the Arbitrator colluded with the Agency. Accordingly, we find that the Union's first exception constitutes disagreement with the Arbitrator's findings concerning the procedural arbitrability of the grievance and provides no basis for finding the award deficient.

The Union's second exception concerns claimed violations of the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes. The Code is published by the National Academy of Arbitrators, the American Arbitration Association and the Federal Mediation and Conciliation Service. The Code is a privately developed set of standards for professional behavior and is designed to guide impartial third parties in labor dispute resolution. The Code is not a law, rule, or regulation within the meaning of section 7122(a) of the Statute on which exceptions to an arbitration award can be predicated. Accordingly, the Union's contention that the Arbitrator violated the Code provides no basis on which the award can be found deficient.