39:1117(96)AR - - Air Force, Griffis AFB, Rome, NY and AFGE Local 2612 - - 1991 FLRAdec AR - - v39 p1117



[ v39 p1117 ]
39:1117(96)AR
The decision of the Authority follows:


39 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

GRIFFISS AIR FORCE BASE

ROME, NEW YORK

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2612

(Union)

0-AR-1892

DECISION

March 13, 1991

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 Thomas N. Rinaldo. The Arbitrator found that the Union representative in this case had acted in an irresponsible manner and dismissed the Union's grievance over the elimination of various smoking areas for bargaining-unit employees.

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 Union's exceptions.

We conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On August 18, 1989, the Union filed a grievance claiming that the Agency had improperly eliminated smoking areas for some bargaining-unit employees. The grievance was not resolved and was submitted to arbitration.

After notification of his selection, the Arbitrator informed the parties by letter that he was setting aside February 6, 1990, as a date to hear the case. The Agency representative replied by letter that February 6 was acceptable to management and that the staff judge advocate (SJA) courtroom had been reserved for the arbitration. Local Union President Joseph Sallustio replied by letter claiming that neither management nor the Arbitrator has the right to decide where to hold the hearing. The Union president also claimed that he had made it clear to the Agency representative that the hearing in this case would have to be postponed because the pending dispute between the parties over where to hold arbitration hearings had not been resolved. Accordingly, the Union president requested a postponement from the Arbitrator. However, he agreed to hold the hearing if it were held at the officer's club.

In a letter to the Arbitrator, the Agency representative replied to the Union president's letter. The representative rejected the officer's club as a site for the hearing because of its social activities. The representative maintained that the SJA courtroom had been used for 10 hearings with the Union without complaint and was specifically designed for adversarial proceedings.

In a letter to the parties dated January 17, 1990, the Arbitrator denied the Union's request for a postponement. He also informed the parties that the arbitration hearing would convene in the SJA courtroom at 10 a.m. on February 6, 1990, and that the Union at that time could make a request to move the hearing to another location. The Arbitrator stated that the request would be granted only if the Union could demonstrate that the SJA courtroom was not appropriate for an arbitration hearing.

On January 29, 1990, the Arbitrator received a letter from the Union president stating that the Union would not participate. In a letter to the Union president, dated February 2, 1990, the Arbitrator reminded Union President Sallustio that he would entertain a motion on February 6 to relocate the hearing. On February 2, the Arbitrator also attempted to arrange a conference call with the representatives, but Sallustio refused to participate in any conference discussion.

In this award, the Arbitrator noted that on February 6, 1990, at 10 a.m., he and management appeared at the SJA courtroom and management was ready to proceed. The Arbitrator further noted that at 10:30 a.m., after the Union failed to appear, he proceeded with the hearing by taking testimony from a management witness.

In his award, the Arbitrator first discussed selection of the hearing location. The Arbitrator noted that the only reason communicated by Union President Sallustio for disagreeing with the courtroom site was the fact that it was not mutually selected. The Arbitrator further noted that the only alternative site offered by Sallustio was the officer's club and that management had given several reasons for the officer's club being inappropriate.

The Arbitrator rejected the Union's position that the hearing site must be mutually selected. The Arbitrator noted the basic principle that once selected by the parties, an arbitrator has the authority, absent specific contract language to the contrary, to decide on all preliminary issues involving the date, time, location, and conduct of the hearing. After reviewing the parties' collective bargaining agreement, the Arbitrator determined that the agreement does not limit the authority of an arbitrator to set the hearing location, and, in fact, the agreement affirmatively conveys to an arbitrator the authority to resolve all preliminary issues, such as the hearing location. The Arbitrator also stated that it was noteworthy that a number of arbitration hearings had been held in the courtroom without objection and that the only hearing held in the officer's club was when the courtroom was unavailable.

With respect to his determination to conduct an ex parte proceeding, the Arbitrator noted that it is well established that an arbitrator has the authority to proceed ex parte when a party that has been duly notified of the hearing fails to appear. The Arbitrator stated that neither party to an arbitration can be permitted to frustrate or invalidate the proceeding by withholding participation.

With respect to the merits of the grievance, the Arbitrator noted that on August 18, 1989, the Union filed a grievance claiming that the Agency had eliminated smoking areas. In response to the grievance, a management representative requested that the specific locations be identified. The Union did not respond to the request, but, instead, demanded an arbitration panel. On September 6, 1989, after another management request, Union President Sallustio specified the following locations: "Finance/Controller area, Building 14, T-9/Roads and Grounds, and 2019-GSG in several areas." Id. at 12.

The Arbitrator found that, during 1989, Union President Sallustio was absent on extended sick leave and Chief Steward Thomas Merrick was the Union's authorized representative. During Sallustio's absence, Merrick and the Agency resolved many disputes including the dispute over the designated smoking area in the Finance/Controller area. When Sallustio returned from sick leave, he repudiated all the agreements made by Merrick, and he filed grievances and unfair labor charges against the Agency. The Arbitrator determined that the grievance before him regarding the elimination of smoking areas was one of the issues that Sallustio was attempting to relitigate.

The Arbitrator noted that the Agency responded to the Union's action by filing a grievance and that the grievance was sustained by Arbitrator William A. Babiskin after an arbitration hearing in which the Union participated, but Sallustio did not. The Arbitrator also noted that Arbitrator Babiskin found that the Union violated the parties' collective bargaining agreement when Sallustio repudiated the agreements with management and that the Union had demonstrated an irresponsible attitude. The Arbitrator further noted that Arbitrator Babiskin had directed that the Union cease and desist from such other and further violations of the agreement in the future.

The Arbitrator stated that under Article 8(1)(f) of the parties' collective bargaining agreement, the Union has the obligation to "demonstrate a responsible attitude in conducting its business with management." Id. at 14 (quoting the parties' collective bargaining agreement). The Arbitrator concluded that "[t]he evidence overwhelmingly establishes in this case that Mr. Sallustio has acted grossly irresponsible [sic] in handling this entire issue." Id. The Arbitrator found that the issue of a designated smoking area for the Finance/Controller area had been agreed to in Sallustio's absence and that Sallustio had ignored the agreement and filed a grievance. The Arbitrator found that despite Arbitrator's Babiskin's award, finding the Union's grievance to be without merit, Sallustio broadened the grievance to include other areas on the base in addition to the Finance/Controller area. The Arbitrator noted that management twice requested specifics of the grievance before Sallustio responded and that Sallustio failed to respond to management's investigation of the grievance and, instead, filed for arbitration. The Arbitrator further noted that after an arbitration date was set, Sallustio objected to the hearing location, refused to participate in a discussion regarding the hearing location, and, finally, boycotted the hearing.

The Arbitrator stated that "[i]n another arena, Mr. Sallustio's irresponsible behavior might be surcharged or harsher penalties imposed." Id. at 16. However, the Arbitrator concluded that he was bound by the parties' collective bargaining agreement and was not authorized to assess punitive relief. Accordingly, under the bounds of the parties' agreement, as a remedy, the Arbitrator dismissed the Union's grievance and directed Union President Sallustio to cease and desist from his irresponsible behavior.

III. First Exception

A. Contentions

The Union contends that the Arbitrator's decision to hold the arbitration hearing violated the Union's right to due process. The Union argues that the Arbitrator was precluded from addressing the issue of where to hold arbitration hearings because that issue had been submitted to Arbitrator David C. Randles. The Union also argues that it "made the Arbitrator aware of an agreement that had been made between the [Agency's] and Union's representatives which required a postponement of the hearing until the grievance filed by Management on the issue of arbitration locations is concluded." Exceptions at 2. The Union asserts that as a result it filed an unfair labor practice charge and that the Arbitrator's refusal to "allow a postponement . . . violated the Union's right to due process of the Unfair Labor Practice Charge which would determine whether or not an agreement existed." Id.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient on any ground set forth in section 7122(a) of the Statute.

We view the Union's argument that the Arbitrator was precluded from addressing the issue of where to hold arbitration hearings as a contention that the Arbitrator exceeded his authority. We will find an award 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, General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128 (1990) (GSA). In our view, the Arbitrator, in this case, did not decide an issue that had not been submitted to him. We find that the issue of where to hold the arbitration hearing in this case was raised by the Union in its objection to management's reserving the SJA courtroom for the hearing and that, consequently, the Arbitrator did not exceed his authority by resolving it. See U.S. Department of the Air Force, Griffiss Air Force Base, New York and America Federation of Government Employees, Local 2612, 36 FLRA 91, 95 (1990) (the arbitrator did not exceed his authority by directing the Union to pay for one-half of the hearing room rental fee because the Union had raised the issue of the payment of the rental fees in its brief to the arbitrator when it declared that it was not responsible for any of the fee); compare GSA (arbitrator did not have authority to reopen his award to consider his fee allocation because the parties had submitted that issue to another arbitrator).

Moreover, we do not view the issue submitted by the parties to Arbitrator David C. Randles to encompass the issue of where to hold the arbitration hearing in this case in order to resolve the Union's grievance over designated smoking areas. In denying the Union's exceptions to Arbitrator Randles' award in U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 38 FLRA 276, 281 (1990) (Griffiss AFB), we noted that Arbitrator Randles' award did not require the parties or another arbitrator to use the SJA courtroom or Building 14 classroom exclusively for arbitration hearings and the award did not preclude the parties or another arbitrator from choosing another site.

Accordingly, we find that the Union fails to establish that the Arbitrator was precluded from addressing the issue of where to hold the arbitration hearing and the Union's contentions provide no basis for finding the award deficient.

We also find that the Union's claims that it made the Arbitrator aware of the parties' agreement to a postponement and that the Arbitrator's refusal to grant a postponement deprived it of its right to have its unfair labor practice charge adjudicated provide no basis for finding the award deficient. In our view, the Union's claim that the parties had agreed to a postponement constitutes nothing more than disagreement with the Arbitrator's failure to find as a matter of fact that the parties had such an agreement and the Arbitrator's conclusion that the sole communicated reason for the Union's disagreement with the courtroom site was that it was not mutually selected. Disagreement with an arbitrator's findings and conclusions provides no basis for finding an award deficient. For example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA No. 1 (1991). Moreover, the Union fails to establish on what basis the Union's unfair labor practice charge, filed after the grievance, precluded the Arbitrator from resolving the Union's request for a postponement, and none is apparent to us. Furthermore, we note that the Union's unfair labor practice charge was ultimately resolved, and the Regional Director, in refusing to issue a complaint in Case No. 1-CA-00143, found that "it is far from clear as to what, if anything, the parties agreed to" concerning postponement of the arbitration hearing in this case and that the dispute did not amount to an unfair labor practice. United States Air Force, Griffiss Air Force Base, 416 Combat Support Group, Rome, New York, 1-CA-00143, Regional Director's letter of April 26, 1990, refusing to issue complaint. In effect, the Union's claims amount to nothing more than disagreement with the Arbitrator's conduct of the hearing in refusing to grant a postponement, but offering to entertain a motion to relocate the hearing site. We have repeatedly held that the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. For example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1178 (1990). We conclude that the Union has not demonstrated that the Arbitrator acted improperly by denying the postponement and setting the hearing location subject to a motion to relocate, and the Union's arguments provide no basis for finding the award deficient. Accordingly, we will deny this exception.

IV. Second Exception

A. Contentions

The Union contends that by proceeding ex parte the Arbitrator violated the Union's right to present grievances. The Union argues that the courtroom was never agreed to by the parties as a place to have arbitration hearings and that the Union was never allowed to suggest other sites for the hearing.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient on any ground set forth in section 7122(a) of the Statute.

In Griffiss AFB, 38 FLRA 276, we denied the Union's exception that Arbitrator Randles' award was deficient because Arbitrator Randles proceeded ex parte when the Union departed the hearing after its motion to bifurcate was denied. We found that the Union cited to no provisions of law prohibiting the arbitrator from proceeding ex parte and none were apparent to us. 38 FLRA at 279. We also noted that the Authority in similar cases denied exceptions to awards resulting from ex parte hearings. Id. at 279-80. Accordingly, in this case, we similarly find that no basis is provided for finding the award deficient because the Arbitrator proceeded ex parte.

We also reject the Union's claim that it was never allowed to suggest other sites for the hearing. The Arbitrator repeatedly informed Union President Sallustio that he would entertain a motion on February 6, 1990, to relocate the hearing, but Sallustio chose not to participate.

Accordingly, we will deny this exception.

V. Third Exception

A. Contentions

The Union contends that the award is deficient because the Arbitrator never ruled on the issue of the elimination of smoking areas. The Union argues that the Arbitrator, instead, decided the issue of whether Union President Sallustio was conducting himself in a responsible manner.

B. Analysis and Conclusions

We construe the Union's exception as a contention that the Arbitrator exceeded his authority by failing to resolve the issue submitted, and we conclude that the Union fails to establish that the award is deficient.

In our view, the Arbitrator did resolve the issue submitted as to what should be the disposition of the Union's grievance. He concluded that in view of the circumstances presented and within the bounds of the parties' collective bargaining agreement, the grievance must be dismissed, and he elaborated in detail on the basis for that determination. He noted that Union President Sallustio had repudiated the agreement over the designated smoking area in the Finance/Controller area and filed the grievance in this case in an attempt to relitigate the dispute. He also noted that the Union's actions in repudiating the smoking area agreement, as well as other agreements, and in filing the grievance in this case, as well as unfair labor practice charges, were found by Arbitrator Babiskin to be irresponsible and in violation of Article 8 of the parties' collective bargaining agreement. He further noted that Arbitrator Babiskin had directe