34:1123(171)AR - - GSA and AFGE Local 2600 - - 1990 FLRAdec AR - - v34 p1123



[ v34 p1123 ]
34:1123(171)AR
The decision of the Authority follows:


34 FLRA NO. 171

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

GENERAL SERVICES ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2600

(Union)

0-AR-1634

DECISION

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the supplemental opinion and award of Arbitrator M. Zane Lumbley.

In his original award, the Arbitrator dismissed the grievance because it concerned a classification matter over which he had no jurisdiction. The Arbitrator accompanied the award with a statement dividing his fees and expenses equally between the parties. A dispute arose over his allocation of fees and expenses. In a supplemental opinion and award, the Arbitrator reaffirmed his original allocation of fees and expenses.

The General Services Administration (the Agency) filed an exception to the supplemental opinion and award 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 American Federation of Government Employees, Local 2600 (the Union) did not file an opposition to the exception.

For the reasons stated below, we conclude that the supplemental award is deficient because the Arbitrator exceeded his authority.

II. Background

On December 9, 1987, Arbitrator Lumbley issued his original award in this matter. The Arbitrator found that the grievance (the classification grievance) concerned a classification matter over which he had no jurisdiction. Accordingly, he dismissed the grievance. The Arbitrator accompanied the award with a statement dividing his fees and expenses equally between the parties. The Union filed exceptions to the award which were denied by the Authority in General Services Administration and American Federation of Government Employees, Local 2600, 31 FLRA 1190 (1988).

By letter dated December 16, 1987, the Agency informed the Arbitrator that it disagreed with the Arbitrator's allocation of costs. The Agency maintained that under Article 11, Section 8D of the parties' collective bargaining agreement, the Union should pay the entire cost as the losing party. The Arbitrator provided the Union with an opportunity to respond to the Agency's letter, and the Union responded by letter dated December 31, 1987. In a letter dated January 4, 1988, the Agency representative stated:

I appreciate the fact that you have solicited [the Union's] views on my position and no doubt you intend to review your fee allocation in light of the parties' comments. I would respectfully suggest that your remedy will be to then bill the Union for the total amount of your fees and expenses, as required by Article 11, Section 8D.

On January 13, 1988, the Union filed a new grievance (the breach grievance) claiming that the Agency had patently breached the parties' collective bargaining agreement by, among other things, refusing to pay arbitrators for their fees and expenses in various cases, citing as an example the Agency's refusal to pay its share of fees and expenses in the classification grievance. The breach grievance was not resolved and was submitted to Arbitrator Thomas Angelo.

On January 19, 1988, Arbitrator Lumbley advised the parties that he had no objection to the parties submitting the dispute over his allocation of fees to another arbitrator. By letter dated March 8, 1988, the Agency advised Arbitrator Lumbley that the issue of his allocation of fees had not been submitted by the parties to another arbitrator.

On June 30, 1988, Arbitrator Angelo issued an interim award. He determined that the breach grievance was grievable and arbitrable, and he directed the parties to contact him for selection of a date to consider the merits of the grievance. Arbitrator Angelo noted that "[t]he relationship which the Union challenges is traditionally addressed before the arbitrator involved in the particular case." Id. at 18. Arbitrator Angelo concluded that "where the Agency advises the arbitrator of a refusal to pay all or part of any fees and expenses, the arbitrator may consider the arguments of the parties and rule on that claim as a part of or supplement to the Decision and Award." Id. at 19. However, with respect to the Union's breach grievance, he ruled as follows:

[T]hat other, traditional methods of resolving disputes are available does not oust the Union of its right to grieve the Agency's actions on the "patent breach" theory advanced here. . . . Whatever the wisdom of this effort, it is clearly grievable.

Id. (footnote omitted).

By letter dated July 8, 1988, Arbitrator Lumbley advised the parties that Arbitrator Angelo had determined in his June 30 interim award that Arbitrator Lumbley had the authority to resolve the dispute over the allocation of costs in the classification grievance. Accordingly, Arbitrator Lumbley stated that the parties should advise him of whether they have any additional arguments to make in the matter and that he would then issue a determination.

On July 14, 1988, the Agency representative wrote to Arbitrator Angelo requesting a corrected page from the June 30 award. The Agency representative advised Arbitrator Angelo that Arbitrator Lumbley was citing Arbitrator Angelo's interim award as authorization for Arbitrator Lumbley to supplement his award on the classification grievance. The representative asserted that the Agency did not recognize any basis for Arbitrator Lumbley to supplement his award in the classification grievance.

By letter dated July 22, 1988, Arbitrator Angelo provided the parties with the corrected page from the June 30 award. In the letter which accompanied the corrected page, Arbitrator Angelo commented on Arbitrator Lumbley's intention to "rule on the fee allocation issue presented by the [classification grievance] matter." Arbitrator Angelo stated that such a ruling by Arbitrator Lumbley would not be appropriate "because the Union has elected to place that fee dispute before me rather than seeking a supplemental ruling from [Arbitrator] Lumbley." In Arbitrator Angelo's view, the fee allocation issue of the classification grievance could not be placed before two arbitrators simultaneously "and the Union has opted to present the question in the context of [the breach] grievance."

On July 25, 1988, the Union provided Arbitrator Lumbley with its position on supplementing his award. The Union maintained that because both parties had requested Arbitrator Lumbley to rule on his allocation of costs in the classification grievance, it was appropriate for Arbitrator Lumbley "to issue a final ruling on this dispute having all the information before [him]." Union's letter of July 25, 1988, at 1 (emphasis in original). The Union enclosed with the letter a decision of the Equal Employment Opportunity Commission (EEOC) concerning the classification grievance. The Union maintained that as a result of the EEOC decision, "[t]he Union prevailed on the EEO discrimination issue in the [classification] grievance." Id. The Union cited Article 11, Section 8D of the agreement, which provides that management pays the arbitrator's fees and expenses when the Union prevails on an EEO discrimination issue. The Union also contended that the allocation of fees in the classification grievance was never put before Arbitrator Angelo.

By letter dated August 3, 1988, the Agency provided its position to Arbitrator Lumbley. The Agency disputed that the parties had requested a decision from Arbitrator Lumbley on his allocation of costs in the classification grievance. The Agency maintained that when the fee allocation dispute arose, the Union elected to raise it as part of the breach grievance before Arbitrator Angelo. The Agency noted that Arbitrator Lumbley previously had regarded this election by the Union as proper. The Agency also disputed the Union's position that the Union had prevailed in the classification grievance for purposes of the allocation of fees.

On September 19, 1988, Arbitrator Lumbley issued a supplemental award. Arbitrator Lumbley determined that there was no impediment to his issuing a supplemental award reconsidering the allocation of fees and expenses in the classification grievance. He noted that the Agency initially requested that he reconsider the allocation in its January 4 letter and that the Union had consistently agreed that he could reconsider the matter.

Arbitrator Lumbley rejected the Agency's contention that the matter was before Arbitrator Angelo for resolution. He noted the Union's position that the question of the allocation of fees in the classification grievance was not before Arbitrator Angelo for decision and concluded that the Union had not submitted the specifics of the fee allocation issue in the classification grievance to Arbitrator Angelo.

Arbitrator Lumbley determined that Article 11, Section 8D of the collective bargaining agreement was not applicable to the allocation of fees and expenses for the classification grievance. Therefore, he reaffirmed his original allocation of fees and expenses. Accordingly, he ordered the Agency to pay all outstanding amounts from the original billing statement along with the lesser of applicable service charges or statutory interest and that the parties divide equally the fees and expenses in connection with the supplemental award.

On September 30, 1988, Arbitrator Angelo met with the parties concerning the resolution of the breach grievance. Because the parties had not been "entirely clear as to how they wished to proceed," Arbitrator Angelo requested that the parties advise him of the status of the fee allocation issue in the classification grievance as it pertained to the breach grievance before him. Arbitrator Angelo's Award of December 26, 1988 at 6. The parties "agreed, and subsequently stipulated," as follows:

[T]hat they had not intended to place the dispute before Arbitrator Lumbley, that they did not consider his Supplemental Opinion and Award binding, and that they jointly intended for the contractual issue to be included in the patent breach grievance.

Id. at 7.

On December 26, 1988, Arbitrator Angelo issued his award in which he concluded, among other things, that the parties' financial obligations are not governed by the "loser pays all" clause in the agreement if the arbitrator fails to reach the merits of the EEO issue. Id. at 2-3. Arbitrator Angelo also concluded that subsequent decisions by EEOC are immaterial to a determination of financial liability for the arbitration process. Accordingly, he ruled that the parties are each responsible for half the "regular fees and expenses" of Arbitrator Lumbley arising out of his Opinion and Award of December 9, 1987. Id. at 27.

III. The Agency's Exception

The Agency contends that Arbitrator Lumbley's supplemental award is deficient because the Arbitrator exceeded his authority. The Agency argues that Arbitrator Lumbley did not retain jurisdiction in the December 9, 1987 award and that the Agency did not request that the Arbitrator clarify or reconsider the award. The Agency further argues that on August 3, 1988, the Agency informed Arbitrator Lumbley that (1) he had no jurisdiction to supplement his December 9, 1987 award, (2) no issue of fee allocation had been referred to him, and (3) the matter on which he proposed to rule was in fact before Arbitrator Angelo.

IV. Analysis and Conclusions

The Authority has consistently held that an arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue that has not been submitted by the parties to the arbitrator. For example, Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986), and cases cited therein. The Authority has also held that an arbitrator exceeds his authority when he reopens and reconsiders his award without the joint agreement of the parties. Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Schools, Mediterranean Region, 32 FLRA 410 (1988).

The parties agreed and stipulated before Arbitrator Angelo that they had not intended to place the fee allocation issue before Arbitrator Lumbley and that they jointly intended that the issue be resolved by Arbitrator Angelo. Consequently, we find that the parties authorized Arbitrator Angelo to issue a final and binding arbitration award resolving the fee allocation i