United States Department of the Air Force, Seymour Johnson Air Force Base, North Carolina (Agency) and National Association of Government Employees, Local R5-188 (Union)

[ v57 p847 ]

57 FLRA No. 182

UNITED STATES
DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
NORTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188
(Union)

0-AR-3425

_____

DECISION

June 14, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator C. Gordon Statham filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. An amicus brief was also filed. [n2] 

      For the reasons that follow, we find that the award is deficient and we, therefore, set it aside.

II.     Background and Award

A.     Background

      In an award dated May 21, 1999, Arbitrator Seltzer sustained a grievance against the Agency. Article XLIII, Section 4 of the parties' collective bargaining agreement provides that "[a]ll fees and expenses, if any, of the arbitrator shall be borne by the losing party." Exceptions, Attachment 1 at 37. Pursuant to that provision, Arbitrator Seltzer billed the Agency $9,199.60 for his services. The bill included charges for 10 days for researching and writing the award.

      On June 9, the Agency phoned Arbitrator Seltzer to try to negotiate a lesser amount. [n3]  When Arbitrator Seltzer refused, the Agency sent him a check for $4,354.60. According to the Agency, this represented a cut in the time for researching and writing the award from 10 days to 3 days. The Agency filed exceptions to the award but did not except to the amount of Arbitrator Seltzer's bill. [n4] 

      By letter to the parties dated July 2, Arbitrator Seltzer stated that "[s]ince the [Agency] is unwilling to abide by" the collective bargaining agreement, he "will be seeking enforcement and full payment from the [Agency], plus late charges, costs of collection and attorney fees." Amicus Brief, Attachment 2 at 2. He also stated that as he was "now in an adversarial position with the [Agency] and may be seeking Union enforcement" of the collective bargaining agreement, he was recusing himself from further involvement with the case. Id.

      By another letter to the parties, dated July 6, Arbitrator Seltzer stated:

I have reviewed various ways to collect the outstanding balance owed to me by the [Agency] . . . . The least costly to all concerned and most expeditious path is to advance my claim through the Negotiated Grievance Procedure as set forth in your Agreement. . . . I suggest the Union file a grievance whose purpose is to seek [Agency] compliance with the Agreement. The Union would seek [Agency] payment to me for the outstanding balance due, plus the interest penalty, and reimbursement for my time and expenses spent in collecting this bill. . . . If the Union plans to file a "breach" grievance as I propose, it should be submitted in a timely manner. . . . The Union is becoming aware of a request for a grievance as of the date of this faxed letter[.] I would start the ten-workday clock from today. . . .

Arbitrator Seltzer's Amicus Brief, Attachment 7.

      On July 14, the Union filed a step one grievance alleging that the Agency had violated Articles II and [ v57 p848 ] XLIII of the parties' bargaining agreement by failing to fully compensate Arbitrator Seltzer for his services. [n5]  As part of the relief sought, the grievance requested that the Agency pay Arbitrator Seltzer "the outstanding balance due, plus the interest penalties, and reimbursement for his time and expenses spent in collecting this bill." Amicus Brief, Attachment 9 at 1. On August 24, when the grievance was not resolved, the Union contacted the Federal Mediation and Conciliation Service (FMCS) to request an arbitrator. However, arbitration of the first grievance never ensued. [n6] 

      Several months later, on June 14, 2000, Arbitrator Seltzer wrote a letter to the Agency, with a copy to the Union, providing notice to the Agency of the amount due from the original billing. The letter also stated that "[a]dditional costs and damages will be sought in arbitration and/or the courts." Amicus Brief, Attachment 13 at 3. On June 21, 2000, the Union filed a second grievance concerning the Agency's refusal to fully compensate Arbitrator Seltzer. [n7]  When the second grievance was not resolved, it was submitted to Arbitrator Statham, who framed the issues as follows:

A.     Does the Union have standing to file the grievance?
B.     Is the invocation of arbitration untimely?
C.     Did the Agency breach the negotiated agreement by refusing to pay the arbitrator?

Award at 1.

B.     Award

      The Agency maintained before Arbitrator Statham that the grievance was not arbitrable because the Union did not have standing to file it, and that the grievance was not timely filed. The Agency asserted that its refusal to pay Arbitrator Seltzer's fee in full is a contractual issue between Arbitrator Seltzer and the Agency. In this regard, the Agency stated that it "has been waiting for [A]rbitrator [Seltzer] to file a claim for the additional hours against the Agency[,]" and that he "has failed to take action to collect his debt." Award at 9, 10. In the Agency's view, the Union was attempting to advance a claim on behalf of a third party (Arbitrator Seltzer), but could not do so because he is not a party to the collective bargaining agreement. The Agency also argued that the Union did not have standing because the bargaining agreement had not been repudiated.

      The Union argued before Arbitrator Statham that where, as here, a losing party refuses to pay an arbitrator's fees as required by the parties' collective bargaining agreement, the prevailing party is required to enforce that agreement in order to avoid any chilling effect the refusal may have on future arbitrators and to obtain the necessary relief. The Union also argued that the Agency had no authority to unilaterally reduce Arbitrator Seltzer's fee. In addition, the Union asserted that it had not filed the grievance on behalf of Arbitrator Seltzer, but was simply enforcing the parties' agreement. According to the Union, its "handling of the case [was] independent of Mr. Seltzer though it appreciates his assistance." Id. at 12.

      Arbitrator Statham sustained the Union's grievance. With regard to the issue of arbitrability, Arbitrator Statham found that the Union was enforcing a specific provision of the parties' bargaining agreement and, therefore, had standing. He also found that the grievance was timely filed. Further, he found that the fact that Arbitrator Seltzer would benefit from enforcement is irrelevant for purposes of standing. Having found that the Agency was the losing party, Arbitrator Statham ordered that the grievance was granted. [ v57 p849 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that Arbitrator Statham exceeded his authority because the Union did not have standing to file the grievance and because Arbitrator Statham granted relief to an individual (Arbitrator Seltzer) who is not in the bargaining unit and is not a party to the collective bargaining agreement. According to the Agency, its dispute regarding the fee is a contractual issue between the Arbitrator Seltzer and the Agency. Finally, the Agency asserts that Arbitrator Statham's determination that the award was timely filed is contrary to law and does not draw its essence from the parties' bargaining agreement.

B.     Union's Opposition

      The Union contends that it has standing to enforce the parties' agreement and that it did not file the grievance on behalf of Arbitrator Seltzer. The Union asserts that although a third party may benefit from enforcement of the parties' agreement, such a benefit does not release a party from its obligation to comply with the agreement's terms. Finally, the Union maintains that the Agency's arguments that the award is contrary to law and fails to draw its essence from the parties' agreement simply restate arguments that were properly rejected by Arbitrator Statham.

IV.     Analysis and Conclusions

A.     The Dispute Between Arbitrator Seltzer and the Agency Is Not Arbitrable

      We construe the Agency's contention that the Arbitrator exceeded his authority because the Union did not have standing to file the grievance as an assertion that the grievance was not arbitrable as a matter of law. Questions of law raised by an arbitrator's award and a party's exceptions must be reviewed de novo. See, e.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

      In addressing the Agency's contention, we find that this case presents the following issue of first impression: whether an arbitrator may, by suggesting that a party file a grievance on his behalf under the parties' collective bargaining agreement, use the negotiated grievance and arbitration procedures established by the Statute to collect fees that he believes are owed to him. For the reasons set forth below, we conclude that such use of the Statute's processes is not authorized by the Statute and, therefore, the grievance was not arbitrable as a matter of law.

      It is clear from the record that Arbitrator Seltzer and the Agency have a dispute as to the proper amount of fees that the Agency owes to Arbitrator Seltzer, and that the Union does not owe Arbitrator Seltzer any money. It is equally clear that Arbitrator Seltzer suggested to the Union that it file a grievance in order for him to collect the fees that he believed were due to him by the Agency, and that the Union did so. Further, it is clear that Arbitrator Seltzer was aware that he "could have sued the Agency for payment[,]" and that he "considered this option [in June 1999] and continues to do so." Amicus Brief at 24. While acknowledging that the Agency is correct in believing that its refusal to pay Arbitrator Seltzer his fee in full is a contractual issue between the Agency and himself, Arbitrator Seltzer asserts that "[i]t is the Arbitrator's choice, not the Agency's, as to if, when and how the Agency's violation's [sic] of its duty under his arbitration-services contract with the [p]arties should be enforced." Id. at 26.

      We disagree with Arbitrator Seltzer's assertion that he had a choice to use the parties' collective bargaining agreement to pursue his claim for fees. Although we are unaware of any Authority or judicial precedent addressing this particular situation, we believe that the decision of the United States Claims Court in Ables v. United States, 2 Cl. Ct. 494 (1983), is instructive. In Ables, an arbitrator who was seeking payment for services rendered in an interest arbitration proceeding filed a lawsuit as a third-party beneficiary of a collective bargaining agreement between an agency and a union. The court found that he lacked standing to sue as a third-party beneficiary. The court stated that the primary purpose of the collective bargaining agreement between the union and the agency was to resolve certain disputed issues, and while the agreement contemplated the use of arbitrators to further realization of this primary purpose, the agreement was not entered into for the primary purpose of benefitting arbitrators. Id. at 500.

      Additionally, the court stated that the parties' contractual provision (that the parties would share equally the costs of the arbitrator) suggested that the arbitrator's right to payment for these services "would emanate from separate and independent agreements [the arbitrator] would have with the" union and the agency, rather than from the collective bargaining agreement itself. Id. In this regard, the court further stated that the arbitrator's services had been procured by a purchase order contract executed by the arbitrator and the agency, and that the arbitrator's "enforceable rights emanated, not [ v57 p850 ] from the [collective bargaining] agreement between the union and the [Agency,] but from his contract for arbitration services with the [Agency]." Id. at 501. Finally, the court noted the observation of the Court of Claims that "the position of arbitrators of disputes involving the United States Government is anomalous," and "[i]n the absence of legislation to regularize their position respecting compensation, [arbitrators] may serve at their peril in certain contingencies." Id. at 504.

      In the case before us, Arbitrator Seltzer persuaded the Union to file a grievance on his behalf, rather than filing a suit as a third-party beneficiary of the collective bargaining agreement. However, in both this case and Ables, the arbitrator sought to use the collective bargaining agreement to collect fees for services rendered. As the court stated in Ables, the primary purpose of a collective bargaining agreement between a union and an agency is to resolve certain disputed issues, not to benefit arbitrators. The negotiated grievance and arbitration procedures mandated by the Statute were designed by Congress to resolve disputes between the parties to the collective bargaining agreement. The dispute in this case is not between the Agency and the Union; it is between the Agency and Arbitrator Seltzer.

      Accordingly, in the unique circumstances of this case, we conclude that insofar as the grievance constituted an attempt to advance a claim on behalf of Arbitrator Seltzer to resolve a fee dispute that he had with the Agency, the grievance was not arbitrable. [n8]  Consequently, Arbitrator Statham had no authority to resolve that dispute and to order the Agency to pay Arbitrator Seltzer's fee in full. [n9]  We express no view as to whether Arbitrator Seltzer had, or has, other administrative or judicial processes available to him to pursue his claim. [n10]  We simply hold that his attempt to resolve his dispute with the Agency was not one that is permitted under the grievance and arbitration framework established by Congress. Therefore, the grievance was not arbitrable as a matter of law. [n11] 

V.     Decision

      The award is set aside.


File 1: Authority's Decision in 57 FLRA No. 182
File 2: Opinion of Member Pope


Footnote # 1 for 57 FLRA No. 182 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 182 - Authority's Decision

   The amicus brief was filed by an arbitrator, Curtis Seltzer. Arbitrator Seltzer's connection to this case is described below. Pursuant to § 2429.9 of the Authority's Regulations, and noting the absence of any opposition from the parties to the Authority's consideration of Arbitrator Seltzer's amicus brief, we have accepted the brief for consideration.


Footnote # 3 for 57 FLRA No. 182 - Authority's Decision

   All dates are in 1999 unless otherwise indicated.


Footnote # 4 for 57 FLRA No. 182 - Authority's Decision

   The Authority denied the exceptions in United States Dep't of the Air Force, Seymour Johnson AFB, N.C., 56 FLRA 249 (2000).


Footnote # 5 for 57 FLRA No. 182 - Authority's Decision

   Article II of the parties' bargaining agreement states:

It is agreed and understood by the Employer and the Union that in the administration of all matters covered by this agreement, officials and employees are governed by existing or future laws and regulations of appropriate authorities; by published agency policies and regulations in existence at the time this agreement is approved and subsequently published agency policies and regulations required by law or by the regulations of appropriate authorities.

Exceptions, Attachment 1 at 1.


Footnote # 6 for 57 FLRA No. 182 - Authority's Decision

   It is not clear why the first grievance never went to arbitration. According to the Agency, the Union contacted the FMCS in August 1999 to invoke arbitration but failed to pay the filing fee until January 4, 2000. The Agency states that when it subsequently received a panel of arbitrators, it provided the FMCS with a copy of the parties' bargaining agreement which requires that arbitration be invoked within seven workdays of receipt of a final decision. The Agency explains that, as a result, the FMCS declined to process the Union's request "because the filing did not comply with the timing requirements of the [parties' agreement]." Exceptions at 4. By contrast, the Union states that "[t]he [A]gency refused to participate in arbitration on this first grievance." Opposition at 2.


Footnote # 7 for 57 FLRA No. 182 - Authority's Decision

   The Union filed an unfair labor practice charge onAugust 11, 2000, alleging that the Agency had failed to comply with a final and binding arbitration award by making whole the Local Union President. After investigating the Union's allegation, the Washington Regional Office concluded that issuance of a complaint was not warranted. The charge was, therefore, dismissed.


Footnote # 8 for 57 FLRA No. 182 - Authority's Decision

   The peculiar facts of this case distinguish it from other cases in which the Authority has considered issues relating to the payments of fees to arbitrators. See, e.g., United States Dep't of the Air Force, Oklahoma City Air Logistics Center, Tinker AFB, 35 FLRA 700 (1990) (dispute between the parties as to an arbitrator's cancellation fee); General Services Admin., 34 FLRA 1123 (1990) (dispute between the parties over an arbitrator's allocation of fees and expenses). Unlike the cited cases, this case involves a grievance filed at the urging of the arbitrator and involves a fee dispute between the arbitrator and one party about the proper amount due the arbitrator.


Footnote # 9 for 57 FLRA No. 182 - Authority's Decision

   In so ruling, we note that the relief sought by the grievance included other matters in addition to requiring the Agency to pay Arbitrator Seltzer's fee in full. In granting the grievance, Arbitrator Statham addressed only the issue of Arbitrator Seltzer's fee, and the parties addressed only that aspect as well. Accordingly, we do not address the other relief sought in the grievance and not addressed by Arbitrator Statham.


Footnote # 10 for 57 FLRA No. 182 - Authority's Decision

   Unlike the situation in Ables, it is unclear from the record in this case whether Arbitrator Seltzer's services were procured through a purchase order or similar contract for the performance of services. Generally, such purchase orders or similar contracts fall within the jurisdiction of the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (CDA). The CDA sets fo