46:0968(86)AR - - Army Corps of Engineers, Mobile, AL and NFFE Local 561 - - 1992 FLRAdec AR - - v46 p968
[ v46 p968 ]
The decision of the Authority follows:
46 FLRA No. 86
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
December 11, 1992
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 Henry B. Welch 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 filed an opposition to the Union's exceptions.(1)
The Union filed a grievance alleging that the Agency failed to select the most qualified person for a job opening. The Arbitrator dismissed the grievance after finding, among other things, that the Union failed to timely submit the grievance from step 2 to step 3 of the parties' negotiated grievance procedure.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
On April 30, 1991, the Agency posted a notice for a job opening for a GS-12 Compliance Manager. The Agency convened a panel to consider all nine applicants for the position. The panel decided that none of the applicants was qualified as a GS-12 Compliance Manager, but that four of the candidates were qualified at the GS-11 level. The panel eliminated the grievant from consideration because he indicated that he would consider only a GS-12 position and not a GS-11 position. The Agency selected one of the remaining candidates to fill the position at the GS-11 level. On October 4, 1991, the Union filed a grievance alleging that the Agency "'did not select the most qualified person for the job, but instead selected a [l]ess[-]qualified applicant.'" Award at 1 (quoting Negotiated Grievance Form). The grievance was submitted to arbitration.
The Arbitrator found that the Union untimely forwarded the grievance from step 2 to step 3 of the parties' negotiated grievance procedure. According to the Arbitrator, Article 32 of the parties' collective bargaining agreement establishes that the grievance must be forwarded to step 3 of the grievance procedure "'within [t]en [c]alendar [d]ays from receipt of the [step] 2 decision.'" Id. at 2 (quoting Article 32). The Arbitrator found that the Union received the Agency's step 2 grievance decision on November 8, 1991, and that the Union submitted its step 3 response to the Agency Commander on November 25, 1991. Accordingly, the Arbitrator found that "the Union was seven days late in the [step] 3 processing of the grievance." Id. The Arbitrator stated that the Union "admit[ted] this mistake in its letter of [November] 20" to the Agency's personnel office, in which the Union stated that although the materials for the step 3 processing of the grievance were due on November 18, the Union "'request[ed] that they be accepted on'" November 25. Id. (quoting Union's letter). The Arbitrator stated that "unless he re-writes" the parties' collective bargaining agreement, he "[m]ust rule and does rule that the Union/Grievant failed to act 'in accordance with prescribed time limits and therefore, [g]rievant has forfeited his grievance rights" under Article 32.2(d) of the parties' agreement. Id. at 3.
Additionally, the Arbitrator found that: (1) the employee who was selected for the position was qualified; (2) the grievant had eliminated himself from consideration by stating that he would not consider a GS-11 position; and (3) there was no evidence supporting the grievant's claim that this case involved preselection and that there was personal favoritism causing the selection of the selectee. As his award, the Arbitrator stated that the grievance was "denied and dismissed." Id. (emphasis deleted).
III. Positions of the Parties
A. The Union
The Union contends that it timely forwarded the grievance to step 3 of the parties' negotiated grievance procedure. In essence, the Union argues that the Arbitrator erroneously based his decision on the grievance procedure in a collective bargaining agreement which was not in effect at the time the Union filed its grievance. The Union asserts that the grievance procedure that was in effect at the time of the filing of the grievance provided for 10 workdays between steps. The Union further asserts that the grievance procedure in the parties' new agreement, which provides for 10 calendar days between steps, did not go into effect until after the grievance was filed. The Union maintains that the grievance was timely forwarded from step 2 to step 3 under the parties' negotiated grievance procedure in the earlier agreement. The Union also contends that the employee selected for the position was not properly ranked or rated and was preselected.
The Union further argues that the Arbitrator was biased, would not consider "the true issues or facts of the case[,]" and did not conduct a fair hearing. Exceptions at 2. In this regard, the Union asserts that there was "obvious intermingling between the Arbitrator and [m]anagement [because] [m]anagement was allowed to present its case to the Arbitrator during breaks and lunch, but the Union was not afforded the same privileges." Id. at 3.
B. The Agency
The Agency argues that the Union's exceptions fail to allege that the award is deficient under any of the grounds for review set forth in the Authority's Rules and Regulations. Rather, the Agency argues that the Union's exceptions "are solely based on mere assertions, misrepresentations of fact, conjecture, innuendoes and argument." Opposition at 2-3.
With respect to the Arbitrator's determination that the Union did not timely submit the grievance to step 3 of the grievance procedure, the Agency asserts that the Arbitrator "accepted the Agency's position that the new contract was in effect at the time the grievance was filed and that the Union failed to comply with the timeliness requirement of the grievance procedure." Id. at 4. In this regard, the Agency notes particularly the Union's letter of November 20, 1991, acknowledging that the Union was late in forwarding the grievance to step 3 and requesting an extension of time. The Agency asserts that the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of a provision of the contract.
The Agency also maintains that the Union has failed to support its allegations that the employee selected for the position was preselected, that the Arbitrator did not consider the true issues or facts, and that he did not conduct a fair hearing. Further, the Agency disputes the Union's contention that the Arbitrator engaged in improper communications with Agency employees. The Agency supplied an affidavit by its representative in the arbitration proceeding, in which the representative stated that after the arbitration hearing recessed for lunch: (1) the Arbitrator joined Agency representatives for a lunch that "was not preplanned"; (2) the Arbitrator "paid for his own meal"; and (3) "the case was not discussed during lunch." Affidavit attached to Opposition.
IV. Analysis and Conclusions
We reject the Union's contention that the award dismissing the grievance as untimely forwarded to step 3 of the parties' negotiated grievance procedure is deficient. The Union has not demonstrated that the Arbitrator incorrectly found that the Union's grievance was untimely. We find no merit in the Union's contention that the Arbitrator applied time limits in a collective bargaining agreement that had not yet gone into effect at the time the grievance was filed. The Union's exception in this regard constitutes nothing more than disagreement with the Arbitrator's conclusion that the grievance was untimely submitted under the relevant provision of the parties' collective bargaining agreement. Mere disagreement with an arbitrator's evaluation of the evidence and interpretation of the collective bargaining agreement in resolving a question of procedural arbitrability provides no basis on which to find an award deficient. U.S. Department of Defense, Defense Finance and Accounting Service, Kansas City Center, Kansas City, Missouri and American Federation of Government Employees, Local 2904, 46 FLRA 440, 442 (1992); American Federation of Government Employees, Council 236 and General Services Administration, 45 FLRA 813, 816 (1992).
B. Fair Hearing
The Union argues that the Arbitrator disregarded issues and facts raised by the Union at the hearing and failed to conduct a fair hearing. The Authority will find an award deficient when it is established that an arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. The Authority has consistently held that arbitrators have considerable latitude in the conduct of the hearing and 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. See, for example, American Federation of Government Employees, Local 2109 and U.S. Department of Veterans Affairs, Temple, Texas, 46 FLRA 446, 449 (1992). Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. We note that the Arbitrator heard and considered testimony from the grievant concerning the issues in dispute. The Union has not shown that the Arbitrator improperly refused to hear pertinent additional testimony from the grievant or that any such refusal affected the fairness of the overall arbitration proceeding. See U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 474 (1991).
In our view, the Union's arguments constitute mere disagreement with the manner in which the Arbitrator conducted the arbitration hearing and with the Arbitrator's evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. For example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 108-09 (1992).
The Union fails to establish that the Arbitrator was biased. To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. For example, U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 493 (1991). The Union has not shown that the award is deficient under any of these tests. The fact that employees of the Agency had a lunch break with the Arbitrator fails to demonstrate that the award was procured by fraud, corruption, or undue means; or that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced under any of the tests commonly applied by Federal courts in private sector labor relations cases. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1562 (1992). In our view, the Union has failed to establish any impropriety that destroyed the fairness of the arbitration proceedings. See National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226, 234 (1991). Accordingly, we will deny the Union's exception in this regard.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ On August 7, 1992, the Authority accepted as part of the record the Union's late response to an earlier Authority order granting the Union an opportunity to correct procedural deficiencies in its exceptions. The Authority stated that the Union had complied with the earlier order and had provided sufficient information to explain its delay in complying with the order. The Agency asserts that the Authority should reconsider its acceptance of the Union's response and should dismiss the Union's exceptions because the Union's response was untimely and the Authority may not extend or waive the statutory time limit for filing exceptions. The Agency's assertion provides no basis for dismissing the exceptions because the Authority's acceptance of the Union's late response did not constitute an impermissible extension or waiver of a statutory time limit for filing exceptions, but rather constituted a permissible extension or waiver of a time limit contained in an Authority order.