41:0215(19)AR - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1991 FLRAdec AR - - v41 p215



[ v41 p215 ]
41:0215(19)AR
The decision of the Authority follows:


41 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

SCOTT AIR FORCE BASE, ILLINOIS

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23

(Union)

0-AR-2093

DECISION

June 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Richard L. Ross filed by 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 Agency did not file an opposition to the Union's exceptions.

The Agency filed a grievance claiming that the Union had failed to bargain as required by the parties' collective bargaining agreement. The Arbitrator found that the Union was estopped from raising a procedural arbitrability issue, and the Arbitrator sustained the grievance.

We conclude that the Union fails to establish that the award is deficient, and we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency filed a grievance claiming that the Union violated the parties' collective bargaining agreement by refusing to bargain. The Union denied the grievance, and the Agency invoked arbitration. By letter, the Arbitrator offered the parties a hearing date of either February 8, 1991, or February 27, 1991.

Union representatives informed the Agency that the Union considered the grievance to be moot and nonarbitrable and that the Union would not participate in the arbitration proceedings, including choosing a hearing date. The Union requested that the Arbitrator bill the Union for its share of charges up to that point and advised the Arbitrator that any further pursuit of the matter would be at his own expense.

By letter dated January 23, 1991, the Agency informed the Union that the Union's refusal to participate in the arbitration proceedings was a repudiation of the collective bargaining agreement and that, under the agreement, the Arbitrator could conduct the hearing ex parte on his last suggested hearing date of February 27. The Agency set the date of the hearing for February 27 and advised the Union and the Arbitrator. However, by this time, the Arbitrator was unavailable, and he rescheduled the hearing for March 6, 1991. In notifying the Union of the date, the Arbitrator warned the Union that, if it refused to participate without a valid reason, the hearing would proceed ex parte. On March 6, both parties were present and proceeded.

Before the Arbitrator, the Union alleged that the grievance was not arbitrable because the Agency failed to follow the time requirements of Article XXII, Section 11 of the parties' agreement, which provides:

The party requesting arbitration must place the issue(s) in dispute before the arbitrator not sooner than fifteen (15) days and not later than thirty (30) days after the parties receive a listing of available dates from the arbitrator, unless the parties mutually agree otherwise. With respect to the above referenced 15 to 30 day timeframe, absent mutual agreement, the last available date will be selected. If the arbitrator's first available date for a hearing falls outside this thirty (30) day period, then that date shall be the date of the hearing, unless the parties agree otherwise. Failure by a party to so present it's [sic] grievance for arbitration will result in dismissal of that party's grievance with no right to renew it.

The Agency conceded that Article XXII, Section 11 had not been followed. However, the Agency presented uncontradicted testimony that, in actual practice, when the parties could not agree on a hearing date, the latest offered date was used and not the first offered date, as required by Article XXII, Section 11.

The Arbitrator ruled that the matter was arbitrable. He found that, although the Agency failed to follow the time requirements of Article XXII, Section 11, the Union was "precluded from raising the issue by reason of its declared refusal to participate in the arbitration, its declaration that it did not want the services of the [Arbitrator] after agreeing to his selection and its further declaration that it would not pay the [Arbitrator] for further services if the matter was pursued." Award at 4. The Arbitrator determined that each of the Union's declarations had constituted a separate threat to violate an express provision of the parties' collective bargaining agreement and that the Union had acted unreasonably throughout the case in direct violation of specific provisions of the agreement and in violation of the spirit, intent, and purpose of the agreement. Accordingly, the Arbitrator held that the Union had "effectively waived its right to raise the procedural arbitrability issue and [wa]s estopped from so doing." Id. at 5.

On the merits issue, the Arbitrator stated that the Union acknowledged its refusal and failure to bargain in good faith, as required by the parties' agreement, from July 18, 1990, to October 23, 1990. Accordingly, the Arbitrator sustained the grievance. However, the Arbitrator ordered no remedy because since October 23, 1990, the Union had bargained in good faith.

III. First Exception

A. Contentions

The Union contends that the award is deficient because the award does not draw its essence from the collective bargaining agreement. The Union argues that the Arbitrator's finding that the grievance was timely conflicts with the clear and unambiguous provisions of Article XXII, Section 11 of the agreement. The Union disputes the Arbitrator's reliance on the Agency's testimony that, in practice, when the parties could not agree on one of the dates offered by an arbitrator, the latest offered date was used and not the first offered date, as required by Article XXII, Section 11. The Union maintains that, when this practice was used, it was by agreement of the parties. The Union claims that the Arbitrator overlooked the fact that there was no evidence provided that there was any agreement between the parties to pick a date later than the first one offered, which was February 8, 1991.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award does not draw its essence from the parties' collective bargaining agreement.

The Union has miscontrued the Arbitrator's award. We reject the Union's contentions that the award does not draw its essence from the agreement because the Arbitrator found that the Agency was timely in presenting its grievance and because the Arbitrator improperly relied on testimony of what the parties' actual practice was. In finding the matter to be arbitrable, the Arbitrator did not find that the Agency timely presented its grievance and did not rely on the testimony concerning the practice of the parties. The Arbitrator found that management "failed to follow the time requirements of Section 11 of Article XXII[.]" Id. at 4. However, the Arbitrator ruled that, by its unreasonable conduct, the Union had waived its right to raise the procedural arbitrability issue and was estopped from doing so. He found that the Union was precluded from raising the issue by reason of its various declarations that constituted threats to violate the parties' agreement and its unreasonable conduct throughout the case that violated specific provisions of the agreement, as well as its spirit, intent, and purpose.

In its exception, the Union fails to address its conduct and this basis for the award. We conclude that the Union fails to establish that the Arbitrator improperly considered these circumstances or improperly estopped the Union from raising the untimeliness of the Agency in view of these circumstances. See U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 1117, 1125 (1991) (the Authority denied the union's exception to an award dismissing the union's grievance because of the irresponsible behavior of its representative; the Authority found that the Union failed to establish that the arbitrator improperly considered this behavior or improperly dismissed the grievance in view of this behavior). Moreover, we find that the Union's exception constitutes nothing more than disagreement with the Arbitrator's determination on a matter of procedural arbitrability and, as such, the exception provides no basis for finding the award deficient. U.S. Department of the Army, Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 39 FLRA 402, 405 (1991).

IV. Second Exception

A. Contentions

The Union contends that the award is deficient because the award is based on a nonfact. The Union argues that the award is deficient because it never acknowledged that it refused to bargain in good faith. The Union concedes that it admitted to the Arbitrator that it had refused to bargain, but the Union disputes that it acknowledged that it "refused to bargain in good faith." Exceptions at 3 (emphasis in original). The Union asserts that there is no support for the Arbitrator's statement. The Union maintains that the evidence was to the contrary because the local union president testified that the refusal to bargain was justified.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is based on a nonfact. In order for an award to be found deficient because it is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New