35:0700(77)AR - - Air Force, Oklahoma City Air Logistics Center, Tinker AFB and AFGE Local 916 - - 1990 FLRAdec AR - - v35 p700
[ v35 p700 ]
The decision of the Authority follows:
35 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 26, 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 Francis X. Quinn. The Arbitrator concluded that the Union was responsible, under the parties' collective bargaining agreement, for payment of cancellation fees for a previous expedited arbitration proceeding.
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 Agency did not file an opposition to the exceptions.
For the reasons stated below, we conclude that the Union's exceptions fail to establish that the award is contrary to law or that the award is deficient on any other grounds similar to those applied by Federal courts in private sector labor relations cases. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
This case concerns the payment of fees for a separate expedited arbitration hearing scheduled to be heard by Arbitrator Owen under the procedure set forth in section 7.08 of the parties' Master Labor Agreement. The hearing was scheduled for April 8, 1988, but was not held because the Union failed to appear. Subsequently, the Agency filed a grievance asserting that the Union was required to pay Arbitrator Owen's cancellation fees. When this grievance was not resolved, it was submitted to arbitration before Arbitrator Quinn.
Arbitrator Quinn stated that the issue was: "Whether the Union is liable for the arbitration fees for expedited arbitration . . . scheduled April 8, 1988?" Award at 1. The Union asserted that the grievance in this case was not arbitrable because: (1) the Agency failed to meet to select an arbitrator; (2) the Agency was acting on behalf of arbitrators, who are not part of the bargaining unit; and (3) the grievance was untimely filed. Arbitrator Quinn decided that the "grievance is a continuing one, was timely filed, is arbitrable, and is properly before this arbitrator." Id. at 9-10.
Arbitrator Quinn noted that the Agency's grievance raised two issues:
(1) whether the Union, without notice to either the Agency or the Arbitrator, unilaterally withdrew from the expedited arbitration . . . , scheduled for hearing before Arbitrator John P. Owen on April 8, 1988, and (2) if so, whether under Section 7.04(c) of the Master Labor Agreement the Union is, as the withdrawing party, liable for the whole amount of Arbitrator Owen's fee[.]
Id. at 12-13. Arbitrator Quinn found "[t]he record indicates that both these questions must be answered in the affirmative." Id. at 13.
Arbitrator Quinn found that the last paragraph of a letter the Union sent to the Agency on April 5, 1988, provided "some insight as to why the Union was hesitant to have the case heard by Dr. Owen on April 8, 1988." Id. at 5. Arbitrator Quinn noted that, in the letter, "the Union allege[d] that certain arbitrators were acting in concert with management, and that the Union was dissatisfied with a one line decision issued by an arbitrator. This latter criticism was directed at Arbitrator Owen." Id.
Additionally, the Arbitrator noted the Union's statement, "'We are not stipulating that we withdrew. We just didn't show up.'" Id. at 7.
Arbitrator Quinn concluded that the Union was liable for Arbitrator Owen's cancellation fee. First, Arbitrator Quinn rejected the Union's argument that section 7.08 of the Master Labor Agreement, which provides for expedited arbitration, "'stands by itself.'" Id. Arbitrator Quinn found that Section 7.04(c) of the parties' agreement, which provides for cancellation fees, applied to both regular and expedited proceedings.
Second, the Arbitrator found that "the Union has been paying cancellation fees in expedited proceedings in the past." Id. at 15. The Arbitrator noted that the Agency proved "that not only did the parties both pay such fees [in expedited arbitrations], but that it was the intent of the parties from the beginning of the expedited process in 1984." Id. at 16.
The Arbitrator ordered that the Union pay Arbitrator Owen in full, plus 6 percent interest, on the amount owed him since April 8, 1988. Id. The Arbitrator concluded that "[t]he Union is also liable for all expenses for lawyer's fees in collecting the arbitrator's fees." Id.
III. First Exception
The Union argues that the grievance before Arbitrator Quinn was not arbitrable because the Agency did not (1) file the grievance timely, or (2) meet contractual requirements applicable to the selection of arbitrators. The Union also claims that the grievance was not arbitrable because the Agency is attempting to represent arbitrators, who are not parties to the collective bargaining agreement.
The Union's exceptions relate to the Arbitrator's determination that the grievance was procedurally arbitrable. Questions concerning procedural arbitrability are appropriate for resolution by an arbitrator and are not generally subject to review or challenge before the Authority. See Oklahoma City Air Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 568, 572 (1990) and cases cited therein. Accordingly, we find that the Union's exceptions constitute mere disagreement with Arbitrator Quinn's findings and provide no basis for finding the award deficient.
IV. Second Exception
The Union asserts that the award is "contrary to and not within the spirit, intent, and general character of the law." Exceptions at 2 (emphasis in original). The Union maintains that "[t]he Arbitrator's award is contrary to law in that the Arbitrator has ordered the dispursment [sic] of private funds." Id. at 19. Also, the Union asserts that the Arbitrator failed "to follow prior FLRA rulings and established legal precedents concerning contracts and private funds payments." Id. at 5. Specifically, the Union asserts that the General Counsel, in refusing to issue an unfair labor practice complaint, endorsed wording in the parties' agreement which, according to the Union, was violated by the Agency in this case. Finally, the Union asserts that the award is contrary to law because "[t]he Arbitrator failed to consider the contractual laws outside the realm of the labor-management Statute." Id. at 24.
The Union cites no law or authority to support its assertions that the award is contrary to law. In addition, there is no basis for concluding that a regional director's refusal to issue an unfair labor practice complaint in a separate, unrelated proceeding is relevant here. We find, therefore, that this exception provides no basis on which the award can be found deficient. See, for example, Department of the Air Force, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 32 FLRA 193, 194-95 (1988) (where union cited no law or authority to support its exception that the award was contrary to law, Authority found exception provided no basis for finding award deficient).
V. Third Exception
The Union asserts that the Arbitrator exceeded "the bounds of his authority as set forth in the contractual agreement." Exceptions at 2.
An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1178 (1988). See also U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA No. 54 (1990) (arbitrator exceeded authority when he failed to observe self-imposed limitations on his authority).
The issue before Arbitrator Quinn was whether the parties' agreement required the Union to pay Arbitrator Owen's cancellation fees. Arbitrator Quinn interpreted the parties' agreement, found that the Union was responsible for the cancellation fee, and ordered the Union to pay the fee. Arbitrator Quinn resolved the issue before him and ordered relief consistent with his award. Accordingly, we reject the Union's exception that the Arbitrator exceeded his authority.
VI. Fourth Exception
The Union asserts that "the Arbitrator was biased" and that the Agency and the Arbitrator were "in collusion to represent Arbitrators." Id. at 2, 19 (emphasis in original).
A party alleging that an arbitrator was biased must substantiate that: (1) the arbitrator's award was procured by improper means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of a party were prejudiced. See Veterans Administration, Winston-Salem, N.C. and American Federation of Government Employees, Local 2880, 27 FLRA 44 (1987).
The Union's exception is devoid of substantiation that Arbitrator Quinn's award was procured by improper means; that there was partiality or corruption on his part; or that Arbitrator Quinn was guilty of misconduct by which the rights of any party were prejudiced. See U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 34 FLRA 986, 989 (1990) (assertion of ex parte communication between agency representative and arbitrator construed as allegation of bias, but found to provide no basis for finding award deficient). See also U.S. Army Corps of Engineers, New Orleans District and National Federation of Federal Employees, Local No. 1124, 13 FLRA 70 (1983). Accordingly, we find that the Union's allegation that Arbitrator Quinn was biased and its assertions that the Agency and Arbitrator Quinn were in collusion provide no basis for finding the award deficient.
VII. The Union's Remaining Exceptions
The Union argues that Section 7.08(g) of the parties' agreement "does not provide for cancellation fees." Id. at 22. Additionally, the Union argues that the parties' agreement on April 9, 1988, to require the payment of cancellation fees for expedited arbitration is "the best evidence" that cancellation fees were not required when the expedited arbitration was scheduled before Arbitrator Owen on April 8, 1988. Id. The Union also asserts that "the tolorable [sic] bounds of reasonableness were breeched [sic] by the Arbitrator in the rendering of the award." Id. at 2. Finally, the Union maintains that Arbitrator Quinn was attempting "to become involved in the internal affairs of the Local[.]" Id. at 24.
We conclude that these exceptions constitute mere disagreement with Arbitrator Quinn's interpretation and application of the parties' agreement. Disagreement with the interpretation and application of the parties' collective bargaining agreement does not provide a basis for finding an arbitrator's award deficient under section 7122(a) of the Statute. See U.S. Department of Housing and Urban Development, Greensboro, North Carolina and American Federation of Government Employees, Local 3409, 33 FLRA 81 (1988) and cases cited therein. Accordingly, these exceptions do not demonstrate that the award is deficient.
The Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 712