52:0658(62)AR - - AFGE, Local 1917 and Justice, INS - - 1996 FLRAdec AR - - v52 p658
[ v52 p658 ]
The decision of the Authority follows:
52 FLRA No. 62
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
November 29, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Clara H. Friedman 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the grievance was barred under section 7116(d) of the Statute. We conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance claiming that the Agency had unilaterally changed dress code practices without providing the Union with notice of the changes and an opportunity to bargain as required by Article 9 of the parties' collective bargaining agreement.
At the arbitration hearing, the Agency raised for the first time a claim that the grievance was not arbitrable because it was barred under section 7116(d) of the Statute. The Agency argued that the Union had earlier filed an unfair labor practice (ULP) charge, alleging that the Agency had unilaterally changed dress code practices without providing the Union with notice of the change and an opportunity to bargain, as required by Article 9 of the agreement. The Union claimed that the issues of the ULP and the grievance were different because the grievance pertained solely to special agents while the ULP involved both special agents and clerical personnel.
In addition, the Union invoked Article 47, Section F of the parties' collective bargaining agreement in requesting a 30-day postponement of further hearings.(1) The Union maintained that 30 days was necessary to research Authority case law on section 7116(d) and to investigate and prepare evidence and testimony to establish that the grievance and the ULP involved different issues. The Agency objected to the Union's request, arguing that a recess of a few hours or early adjournment of the first day of the hearing was sufficient.
The Arbitrator rejected the Union's request for a 30-day postponement. Instead, she offered throughout the 2-day hearing recesses or postponements as reasonably required to produce evidence that was material, relevant, and not immediately available to the Union. The Union did not avail itself of the offered recesses or postponements.
In her award, the Arbitrator explained that she denied the Union's requested 30-day postponement because, under Article 47, Section F, she must resolve disputed postponement requests based on how much time was reasonable and that, under the circumstances, the Union's request was not reasonable. The Arbitrator further explained that the Union should have been ready immediately to identify who the grievants were and what they were grieving. She noted that the Union had merely alleged that the ULP and the grievance involved different issues, while declining to recess in order to examine its files on the ULP, discuss the ULP with Union officials who had been involved with the ULP, or consult with its attorneys or other Union officials on section 7116(d). In the Arbitrator's view, these circumstances indicated that a 30-day postponement was not justifiable, and she found "ill-considered" the Union's refusal to make any effort to seek out readily available sources. Award at 13.
In resolving whether the grievance was arbitrable, the Arbitrator concluded that the ULP and the grievance involved the same issue. She noted that both the grievance and the ULP involved the same allegation that the Agency had changed dress code practices for both special agents and clerical personnel and that the Agency's unilateral actions violated Article 9 of the parties' agreement. She found that both the grievance and the ULP arose from the circumstances set forth in a letter from the Union to the Agency's district director. She rejected the Union's claim that the grievance and the ULP involved different issues because the grievance was limited solely to special agents. The Arbitrator found that the Union's own documents established that the grievance was not restricted to special agents. She quoted from the original grievance in which the Union alleged that management was "'dictating to the clerical staff the same unilateral changes.'" Id. at 16. She also noted that some of the examples of alleged changes listed in the grievance referred to clerical personnel. Accordingly, the Arbitrator found that the grievance was not arbitrable because it was barred under section 7116(d) of the Statute.
A. Union's Contentions
The Union contends that the award is deficient on two grounds.
First, the Union contends that the award is deficient because the Arbitrator refused to grant the Union a 30-day postponement. The Union argues that the refusal is contrary to case law, which the Union asserts supports the reasonableness of its request. The Union also argues that equitable considerations required the Arbitrator to grant its request. The Union asserts that, if the Agency had raised the arbitrability issue earlier, it would have been prepared to show that the issues were different. The Union concedes that the Arbitrator had "a certain amount of discretion in setting the period of an adjournment," but argues that she abused her discretion in refusing to grant the requested postponement. Exceptions at 2.
Second, the Union contends that the award is contrary to section 7116(d) of the Statute. The Union asserts that the Arbitrator erred in finding that the ULP and the grievance involved the same issue. The Union argues that the Arbitrator "had prima facie proof that the ULP and [the] grievance arose out of a different set of facts." Id. The Union notes that the grievance was filed over a year after the ULP charge was filed and maintains that, if the grievance had arisen out of the same factual circumstances, the Agency would have rejected the grievance as untimely. The Union asserts that because the Agency never questioned the timeliness of the grievance, the grievance necessarily arose out of different circumstances than the ULP.(2)
B. Agency's Opposition
The Agency contends that the Arbitrator properly rejected the Union's requested postponement as unwarranted and that the Arbitrator correctly determined that the grievance was barred under section 7116(d). The Agency maintains that a review of the ULP charge and the grievance clearly shows that they involved the same issue.(3)
IV. Analysis and Conclusions
A. The Award is Not Deficient Based on the Refusal to Grant the Union a 30-day Postponement
When a party has filed an exception contending that an award is deficient because the arbitrator refused to postpone the arbitration hearing, the Authority has construed the exception as a claim that the arbitrator denied a fair hearing. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 772 (1990) (SSA, Baltimore). An award will be found deficient because the arbitrator denied a fair hearing when the appealing party establishes that actions of the arbitrator in conducting the proceeding prejudiced the party so as to affect the fairness of the proceeding as a whole. E.g., American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). In determining whether an arbitrator's actions in conducting the proceedings denied a party a fair hearing, the Authority grants arbitrators "considerable latitude" in the conduct of the hearing, and the appealing party must do more than merely object to the arbitrator's conduct. American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Norfolk Naval Shipyard, 51 FLRA 1496, 1497-98 (1996).
In this case, the Union has failed to establish that the Arbitrator's denial of the 30-day postponement requested by the Union prejudiced the Union so as to affect the fairness of the proceedings as a whole.
The Arbitrator explained in detail in her award why she found the Union's request for a 30-day postponement unreasonable and why she believed that her offer of recesses or postponements, as necessary, sufficed. Instead of countering the Arbitrator's explanation, the Union merely asserts, without support, that case law and equitable considerations required that the Arbitrator grant its request. Such conclusory, unsubstantiated assertions provide no basis for finding that the Arbitrator denied the Union a fair hearing. See American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 102 (1996) (union's conclusory assertions failed to demonstrate that the arbitrator's conduct prejudiced the grievant or affected the fairness of the proceeding); American Federation of Government Employees, Council 215 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 52 FLRA 85, 87 (1996) (union's unsubstantiated assertions of prejudice failed to establish the denial of a fair hearing); see also SSA, Baltimore, 37 FLRA at 773 (the mere fact that the arbitrator did not grant a postponement did not show that he conducted the hearing unfairly); American Federation of Government Employees and Social Security Administration, 25 FLRA 173, 175, reconsideration denied, 25 FLRA 477 (1987), appeal dismissed, SSA v. FLRA, No. 87-3808 (4th Cir. Apr. 22, 1987) (arbitrator's refusal to grant the agency a postponement did not deny the agency a fair hearing because the record reflected that the refusal was warranted under the circumstances).
Accordingly, we deny this exception.
B. The Award is Not Contrary to Section 7116(d)
The Union contends that the award is deficient under section 7116(d) because the ULP and the grievance do not involve the same issue. When an exception claims that an award is contrary to law, the Authority reviews the questions of law raised by the award and the exception de novo. The Union did not dispute before the Arbitrator, and does not dispute in its exception, the other elements of section 7116(d).(4) Accordingly, the only question of law raised by the award and the Union's exception is whether the grievance and the ULP involve the same issue.
In determining whether a ULP and a grievance involve the same issue, the Authority focuses on whether the ULP arose from the same set of factual circumstances as the grievance and whether the theories advanced in support of the ULP and the grievance are substantially similar. E.g., U.S. Department of Veterans Affairs Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 392-93 (1996) (citing U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345, 1350-51 (1991), review denied, AFGE Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992)). In this case, based on the Arbitrator's findings, it is clear that the ULP arose from the same set of factual circumstances as the grievance and the same theory was advanced in support of both the ULP and the grievance.
As noted by the Arbitrator, both the ULP and the grievance alleged that the Agency had unilaterally changed established dress code practices of special agents and clerical personnel in the New York district office and that the Agency's actions violated Article 9 of the parties' collective bargaining agreement. See U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441, 446 (1990) (when both the ULP and the grievance concern the same conduct and are based on the parties' collective bargaining agreement, the charge and the grievance raise the sa