American Federation of Government Employees, Local 2172 (Union) and U.S. Department of Defense, Defense Commissary Agency, Zone 2, Millington, Tennessee (Agency)

[ v57 p625 ]

57 FLRA No. 120

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2172
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY, ZONE 2
MILLINGTON, TENNESSEE
(Agency)

0-AR-3421

_____

DECISION

December 7, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Robert G. Bowling filed by the Union under § 7122(a) of the Federal Service Labor-Management Labor Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance on the ground that the Union had not complied with requirements of the parties' collective bargaining agreement with respect to the selection of an arbitrator. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant was assessed a 14-day suspension for failing to properly clean meat processing equipment and for intimidating and threatening his supervisor during a discussion related to that responsibility. The grievance was not resolved and the Union notified the Agency, in writing, as required by the parties' collective bargaining agreement, of its intent to invoke arbitration.

      The parties' agreement provides, in Article 49, Section 3.a., that, within 7 days from the written notification invoking arbitration, the parties will jointly request a list of arbitrators from the Federal Mediation and Conciliation Service (FMCS). [n1]  The Union contacted the Agency, for purposes of initiating the arbitrator selection process, 2 days after the 7-day period had run.

      The Agency raised the Union's failure to initiate that process in a timely manner as a threshold issue in arbitration. In an oral bench decision at the arbitration hearing, the Arbitrator rejected the Agency's arbitrability argument and declared the grievance arbitrable. The Arbitrator then proceeded to conduct a hearing on the merits of the grievance.

      The Arbitrator subsequently issued an award, reversing his bench decision and denying the grievance on the ground that the Union "failed to meet the 'statutory' requirement as set forth in Article 49, Section 3a." Award at 5. Specifically, the Arbitrator found that the Union did not serve its notice to meet with management "in accordance with Section 3 a" until "two days beyond the time limit to submit the joint written request to FMCS." Id. In explaining his award, the Arbitrator stated that:

[i]n reviewing the parties['] procedure, it is always best to allow both the arbitrability issue to be heard along with the substantive issue. The arbitrator then has the opportunity to research both issues, to review the exhibits as submitted and to examine the rationale of each parties' post[-]hearing brief.

Id.

      Finally, the Arbitrator added comments on the merits of the grievance. He noted his personal experience in his father's meat market and expressed his opinion that the cleanliness of the meat department was crucial to its ability to stay in business. He further expressed his opinion that the Agency did not act arbitrarily or capriciously in suspending the grievant. [ v57 p626 ]

III.     Positions of the Parties

A.     Union's Exceptions

1.     Nonfact and Essence                         

      The Union claims that the Arbitrator erred by "characterizing the joint request responsibility of the parties to contact FMCS as a 'statutory" requirement." Exceptions at 3. The Union argues that this mischaracterization is significant. Citing Gunn v. VA Med. Ctr., Birmingham, Ala., 892 F.2d 1036 (Fed. Cir. 1990), [n2] the Union claims that contractual time limits for selecting an arbitrator are not "jurisdictional" and that procedural requirements should be "interpreted indulgently." Id. The Union also cites Gonce v. VA, 872 F.2d 995 (Fed. Cir. 1989) (award dismissing grievances for excessive delay in selecting arbitrator held consistent with law).

      In addition, the Union claims that the award is deficient because it fails to draw its essence from the parties' agreement. The Union contends that, under the agreement, selection of an arbitrator is a "joint responsibility." Exceptions at 5. According to the Union, finding the Union in default for something that is a joint responsibility cannot in any rational way be derived from the agreement.

2.     Exceeded Authority

      The Union claims that the Arbitrator exceeded his authority in denying the grievance. Specifically, the Union argues that, having issued a bench decision finding the grievance arbitrable, the Arbitrator was functus officio. That is, according to the Union, the Arbitrator was precluded from reconsidering his bench decision after it had been rendered. The Union maintains, in addition, that it was "incumbent upon the Agency to file timely exceptions" based on the date of the bench decision. Exceptions at 6. In this regard, the Union contends that it did not address the arbitrability question in its brief to the Arbitrator because he had already ruled on that question.

3.     Fair Hearing

      The Union contends that the award is deficient because the Arbitrator denied the Union a fair hearing. Specifically, the Union argues that once the Arbitrator ruled that the grievance was arbitrable, it was deprived of an opportunity to further address that issue.

4.     Bias

      The Union notes that, in dicta relating to the merits of the grievance, the Arbitrator reflects on his personal experience with respect to the cleanliness of meat processing operations. The Union argues that this dicta "suggests . . . a bias or partiality by the arbitrator against the grievant." Exceptions at 7. According to the Union, if the Authority were to set aside the award, and remand the case to the parties for resubmission of the matter on the merits, the Arbitrator's "announced predisposition" to ruling against the grievant requires that the Authority order the grievance to be presented to another arbitrator. Id. at 8.

5.     Public Policy

      According to the Union, public policy, reflected in court decisions, requires that harmless procedural defects not be allowed to preclude the presentation of a grievance. In this regard, the Union cites Gunn. The Union also maintains that public policy favors grievance arbitration and collective bargaining. The Union argues that the minimal nature of the alleged defect in this case is outweighed by the public policy in favor of grievance arbitration.

B.     Agency's Opposition

      According to the Agency, the Arbitrator correctly resolved the threshold issue of arbitrability. The Agency maintains that the Union's exceptions simply disagree with the Arbitrator's decision.

      The Agency does not specifically address the Union's exceeded authority, fair hearing, or public policy arguments. Rather, the Agency contends that the Union disagrees with the Arbitrator's award.

      As to the Union's bias exception, the Agency argues that the Arbitrator's personal experience is no different "than what any arbitrator brings to the table." Opposition at 2. According to the Agency, there is no requirement that an arbitrator must lack independent knowledge of a subject in order to be a fair and effective arbitrator. As for a remand, the Agency contends that the matter should be returned to the same Arbitrator, because he has already established the record in the case. [ v57 p627 ]

IV.     Analysis and Conclusions

A.     Nonfact and Essence

      The Union's nonfact and essence arguments constitute exceptions to the Arbitrator's resolution of the threshold procedural arbitrability issue. An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) (Wiley) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.") See also AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. See id. at 186.

      Specifically, each of the Union's arguments--(1) the Arbitrator mischaracterized the contractual arbitral selection procedures as "statutory" and (2) the Arbitrator's interpretation of the parties' "joint responsibility" under the contract improperly defaulted the Union--directly challenges the Arbitrator's determination of procedural arbitrability. Consequently, those arguments do not provide a basis for finding the award deficient. See, for example, United States Dep't of Defense, Education Activity, Arlington, Va., 56 FLRA 887, 891 (2000).

      We note that the Authority has rejected the applicability of Gunn, relied on by the Union, to the review of procedural arbitrability questions under the Statute. In this regard, while the Federal Circuit, in cases like Gunn, has specifically refused to follow the procedural arbitrability doctrine articulated in Wiley, the Authority, because it reviews arbitration awards on "grounds similar to those applied by Federal courts in private sector labor-management relations," is bound to follow that doctrine. 5 U.S.C. § 7122(a)(2). See, e.g., AFGE, Local 2635, 56 FLRA 114, 116 n.2 (2000); United States Dep't of the Army, Fort Monroe, Va., 35 FLRA 1187, 1192 (1990).

      The Union's nonfact and essence exceptions are denied.

B.     Exceeded Authority

      With certain exceptions, not applicable here, arbitrators exceed their authority when, on their own, they reopen and reverse their previously issued awards. See Overseas Federation of Teachers, AFT, AFL-CIO, 32 FLRA 410, 414-15 (1988), citing McClatchy Newspapers v. Central Valley Typographical Union, No. 46, 686 F.2d 731, 734 n.1 (9th Cir. 1982), cert. denied, 459 U.S. 1071 (1982); La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir. 1967); F. Elkouri and E. Elkouri, How Arbitration Works, 283-85 (4th Ed. 1985). [n3]  The underlying principle is that once arbitrators have issued their awards, they are functus officio. As defined by the Authority, "[t]he principle of functus officio [means] that once an official has fulfilled or accomplished the designated purpose of his or her office, the official has no further authority." NTEU, NTEU Chapter 33, 44 FLRA 252, 263 (1992) (NTEU Chapter 33). The principle was explained by the United States Court of Appeals for the District of Columbia Circuit in Devine v. White, 697 F.2d 421 (D.C. Cir. 1983) as follows:

[N]othing in the legislative history of the [Civil Service Reform Act] suggests that Congress intended to alter the common law concerning arbitrators' authority to reconsider their decisions. "The cases are unanimous in supporting [the] principle" that "[w]hen the final award has been rendered . . . all power of the arbitrators is exhausted, and any further action that they take will be utterly void unless the parties confer new authority upon them."

Id. at 433 (citations and footnotes omitted). See also NTEU Chapter 33, 44 FLRA at 263.

      That principle does not apply, however, until the arbitrator's award is completed, delivered to, and received by a party. In NTEU Chapter 33, the Authority stated as follows:

We . . . find that an arbitrator's purpose or function is [not] fulfilled until the parties are in receipt of the arbitrator's award resolving the matter in dispute. Likewise, we find that there is no executed, declared decision or completed, published, and delivered award until the award is received by one of the parties. Accordingly, we will not bar an arbitrator from withdrawing or rescinding an [ v57 p628 ] award before any party has received the award and from then substituting another award.

Id. at 264.

      In this case, the Arbitrator stated at the hearing that he found the grievance to be arbitrable and would proceed to hear evidence on the merits of the grievance. The Union has provided no support for its claim that the Arbitrator's statement constitutes his "award" for purposes of the application of the principle of functus officio. In particular, the Union presented no evidence that the parties had agreed to a bifurcated procedure, with separate awards on arbitrability and the merits of the grievance. Not only is there no evidence that the Arbitrator conducted the hearing in that way, but, in his award issued to the parties, he made clear his opinion that the preferable procedure in such cases is to hear testimony and receive evidence on both issues at the same hearing. In addition, nothing in the record indicates that the Arbitrator intended his ruling on arbitrability to constitute a final award as to that matter.

      In other words, the conduct of the hearing, to which the Union did not object, appears to contemplate that the Arbitrator would resolve all the issues in a complete award subsequent to the hearing. See, e.g., Defense Mapping Agency, Hydrographic/Topographic Ctr., Providence Field Office, 4 FLRA 66, 67 (1980) (parties in process of presenting both procedural and merits aspects of dispute in single proceeding with expectation of single award and thus Authority did not consider arbitrator's ruling on procedural arbitrability). See also Dep't of the Army, Oakland Army Base, 16 FLRA 829, 830 (1984) ("the [a]rbitrator's determination of arbitrability is merely a threshold ruling and is not a final award"). Consistent with NTEU Chapter 33, therefore, the Arbitrator did not become functus officio until after the award in this case finding the grievance nonarbitrable was received by the parties. Cf. United Mineworkers v. Sunnyside Coal Co., 841 F. Supp. 382 (D.Utah 1994) (where written statement affirming grievance subsequently reversed in arbitrator's full report, court held arbitrator functus officio with respect to report).

      The Union's argument that the Agency should have filed an exception concerning arbitrability is based on a misunderstanding of Authority case law. The Authority has recognized that an oral bench decision can constitute a valid award. See United States Small Business Admin., Washington, D.C., 38 FLRA 386, 403-05 (1990). However, the Authority has also held that such an award is not ripe for the filing of exceptions until it is "reduced to writing and served" on the parties. Id. at 404. Moreover, if an oral bench decision is not reduced to writing and served on the parties, it can never become a final and binding award. Id. at 405. Consequently, since the Arbitrator's arbitrability ruling was never reduced to writing and served on the parties, it never became subject to the filing of exceptions and could not have become a final and binding award. In this regard, at most, it functioned as an "interim" or "provisional" award.

      Because the Arbitrator in this case was not functus officio in issuing his award finding the grievance nonarbitrable, he did not exceed his authority in issuing that award.

      The Union's functus officio exception is denied.

C.     Fair Hearing

      The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995). [n4] 

      The Union objects to the Arbitrator's conduct of the arbitration proceeding. Specifically, the Union claims that the Arbitrator's award reversing his prior ruling deprived it of an opportunity to address that ruling in its brief to the Arbitrator after the close of the hearing. In this regard, it should be noted that the Union has not alleged or demonstrated that the Arbitrator indicated that his bench decision on arbitrability was intended as a final award. Moreover, the Union does not allege that it was prevented from addressing the issue in its brief or that the Arbitrator refused to consider any Union argument. Cf. Teamsters Local 312 v. Matlack, Inc., 118 F.3d 985 (3rd Cir. 1997) (where arbitrator informed parties he would rule only on procedural issues and would permit employer to reopen hearing on substantive issues, but subsequently issued, first, an award resolving both issues and, later, a clarification disavowing the substantive portion of award, court held arbitrator committed fundamental procedural irregularity and vacated substantive portion of award).

      The Union's fair hearing exception is denied. [ v57 p629 ]

D.     Bias

      To demonstrate that an award is deficient because of bias, a party must establish 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 the party. See United States Dep't of Veterans Affairs, Med. Ctr., North Chicago, Ill., 52 FLRA 387, 398 (1996). [n5] 

      The Union's exception is misplaced. The Arbitrator's comments on the merits of the grievance are dicta. As such, those comments provide no basis for finding the award deficient. See AFGE, Local 1923, 51 FLRA 576, 578 (1995) (comments or dicta are statements separate from the award and exceptions thereto provide no basis for finding an award deficient). See also United States Dep't of Defense, Defense Contract Audit Agency, Central Region, 51 FLRA 1161, 1165 (1995) (comments on appropriateness of possible disciplinary actions no basis for finding award deficient).

      Moreover, in any event, the Union has not demonstrated that the Arbitrator's opinion on the merits of the grievance in any way prejudiced its case on the arbitrability of that grievance.

      The Union's bias exception is denied[n6] 

E.     Public Policy

      Under § 7122(a)(2) of the Statute, the Authority will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S.Ct. 1589 (1988). In order to find the award deficient, the public policy must be "explicit," "well[-]defined and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). In addition, the policy is to be ascertained "'by reference to the laws and legal precedents and not from general considerations of supposed public interests.'" Id. (quoting Muschany v. United States, 324 U.S. 49, 66 (1945) (Muschany); accord United Paperworkers v. Misco, Inc., 108 S.Ct. 364, 373 (1987). The violation of such a public policy "must be clearly shown" if an award is to be found deficient. 108 S.Ct. at 374.

      Even assuming that public policy grounds could invalidate a procedural arbitrability award, the Union has provided no basis for finding the award deficient on this ground. In particular, the Federal Circuit decisions relied on by the Union to demonstrate an alleged public policy with respect to harmless procedural defects are inapposite. Those decisions involve arbitrators' awards concerning adverse actions appealed to the Federal Circuit for review under 5 U.S.C. § 7703. The 14-day suspension in this case is not such an adverse action. See NAGE, Local R4-45, 55 FLRA 784, 786 (1999). See also the discussion of Gunn at Section IV.A. of this decision, supra.

      Consequently, although arbitrators considering suspensions of 14 days or less may use and apply legal principles established by the Federal Circuit for review of adverse actions under § 7703, such use is not mandatory. Id. The Union has not, therefore, established that the alleged public policy on which it relies is "explicit," "well-defined and dominant." See Eastern Associated Coal Corp. v. UMW, District 17, 121 S.Ct. 462, 469 (2000) (court held drug testing statute and regulations did not establish "explicit," "well-defined," or "dominant" policy precluding arbitrator's award reinstating employee who twice tested positive for marijuana use).

      In addition, the Union's claim that the Arbitrator's award is contrary to the intent of Congress that collective bargaining and arbitration are in the public interest provides no basis for finding the award deficient. Such a claim is based on "'general considerations of supposed public interest.'" W.R. Grace, 461 U.S. at 766, quoting Muschany, 324 U.S. at 66. In this connection, the Union fails to demonstrate, for example, that the public policy in favor of arbitration on which it relies is sufficient to override the clearly articulated and more specific policy severely limiting review of an arbitrator's procedural arbitrability determinations.

      The Union's public policy exception is denied.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 57 FLRA No. 120

   Article 49, Section 3.a. provides as follows:

Article 49, Arbitration.
. . . .
Section 3. The process for selecting an arbitrator and proceeding to a hearing shall be as follows:
a.     Within 7 calendar days from the date of the written notice to invoke arbitration, the parties will jointly request a list of seven arbitrators from the [FMCS].

Footnote # 2 for 57 FLRA No. 120

   The Union mistakenly cites the case as Gunn v. AFGE, Local 2207, 892 F.2d 1836 (Fed. Cir. 1990).