United States, Department of the Air Force, 913TH Air Wing, Willow Grove Air Reserve Station, Pennsylvania (Agency) and National Association of Government Employees, Local R3-32 (Union)

[ v58 p516 ]

58 FLRA No. 128

UNITED STATES
DEPARTMENT OF THE AIR FORCE
913TH AIR WING
WILLOW GROVE AIR RESERVE STATION,
PENNSYLVANIA
(Agency)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R3-32
(Union)

0-AR-3576

_____

DECISION

May 5, 2003

_____

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 Salvatore J. Arrigo filed by the Agency under section 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.

      The Arbitrator found that the Agency improperly denied the Union President's request for official time to attend two grievance hearings and ordered that the annual leave that was used by the President for that purpose be converted to official time. The Agency excepts to the Arbitrator's determination that the grievance is procedurally arbitrable and to the award of official time. For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      The Agency filed two grievances against the Union based on the conduct of the National Association of Government Employees' (NAGE) National Representative while representing the Union. The Union president notified the Agency that a NAGE attorney would represent the Union in connection with the arbitration of those grievances. Subsequently, the NAGE attorney notified the Agency as to persons he would call as witnesses and also stated that the Union president would be in attendance at the hearings for both grievances.

      The Union president was granted official time to assist the NAGE attorney in preparing for the hearings, but her request for official time to attend those hearings was denied. The Agency denied the request on the basis that the Union president was not performing a representational function at the hearings, since the NAGE attorney was representing the Union and the Union president was not a witness. The Union president requested, and was granted, 8.75 hours of annual leave to attend the hearings. According to the Arbitrator, at the hearing on the second grievance, it was decided that the matter would be presented to the arbitrator by the submission of documents and the Union president assisted the NAGE attorney in deciding which documents should be submitted.

      The Union president subsequently filed a grievance alleging that she had been unjustly denied official time to attend the grievance hearings in violation of the parties' collective bargaining agreement (agreement), including Article 5, Paragraph 6.d. The Agency denied the grievance. The Union invoked arbitration and the process of selecting an arbitrator commenced. The procedure for selecting an arbitrator in the parties' agreement established time limits for completion of the selection and when the Union failed to comply with those time limits, the Agency indicated that it would challenge the procedural arbitrability of the grievance. The agreement also provides that in the event an arbitrator is not selected within a specified period, the Federal Mediation and Conciliation Service (FMCS) is empowered to appoint one. Pursuant to that provision, FMCS appointed the Arbitrator in this case and the matter proceeded to a hearing.

B.     Arbitrator's Award

      As to the Agency's claim that the grievance was not procedurally arbitrable, the Arbitrator found that Article 25, Paragraph 3 of the parties' agreement "clearly conveys the intent of the parties to empower the [FMCS] to designate an arbitrator in the event of inaction or undue delay of a party in the selection of an arbitrator[.]" Award at 8. The Arbitrator also found that the agreement did not indicate, "directly or indirectly, by commission or omission, that forfeiture of the right to arbitrate the dispute can result for lack of prosecut[orial] diligence[,]" and denied the Agency's motion to dismiss the grievance. Id. at 9. [ v58 p517 ]

      Since the parties could not agree on the issue to be submitted to the Arbitrator on the merits of the grievance, based on the parties' positions, the Arbitrator stated that the issue concerned "whether the grievant was entitled to be on official time when attending" the arbitration hearings in the two previous grievances. Id. at 7. In this regard, the Arbitrator stated that, under the agreement, the Union president is "the representative of the Union for the administration and implementation of the agreement." Id. at 9. He also noted that the agreement "authorizes official time to a Union representative while performing representational functions, which include such functions at arbitrations." Id.

      The Arbitrator found that the agreement did not define the phrase "representational function" and that the Union president did not have to perform the functions of an attorney in order to be performing a representational function. The Arbitrator also found that "by being present at an arbitration the Union President, the contractually recognized representative of the Union for the administration and implementation of [the] agreement, is engaged in a representational function within the meaning of the [agreement,] notwithstanding having chosen the assistance of an attorney . . . ." Id. In this regard, the Arbitrator noted that, under the agreement, the Union president was the "only" Union official or representative "who could have agreed to a settlement of the matter, if the occasion should have arisen, and if she was agreeable to the terms of the agreement." Id. at 10.

      Consequently, the Arbitrator sustained the grievance and ordered that the Union president's use of 8.75 hours of annual leave should be converted to official time.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient under § 7122(a)(2) of the Statute because it fails to draw its essence from the agreement. In particular, the Agency argues that the Arbitrator interpreted Article 25, Paragraph 3, as creating a waiver of the time limits for selecting an arbitrator established in Article 25, Paragraph 2. [n1]  By so doing, the Agency claims, the Arbitrator rendered those time limits ineffective and meaningless. According to the Agency, the purpose of Article 25, Paragraph 3, is to allow the grieving party to bring a recalcitrant opponent to arbitration. The Arbitrator's interpretation, the Agency asserts, requires the nongrieving party to prosecute an opponent's grievance against its own interest. For these reasons, the Agency concludes that the Arbitrator's award fails to draw its essence from the agreement because the waiver found by the Arbitrator "cannot in any rational way be derived from the creation of the FMCS empowerment provision." Exceptions at 6.

      The Agency also contends that the award is deficient under § 7122(a)(1) of the Statute because it is contrary to law, in particular, §§ 7120(e) and 7116(a)(1) and (3) of the Statute. Specifically, the Agency asserts that § 7120(e) of the Statute precludes an agency from having any role in managing the internal affairs of a union. The Agency contends that the Arbitrator's interpretation of Article 25, Paragraph 3, puts the Agency in the position of prosecuting the Union's grievance. According to the Agency, the Arbitrator's award results in the Agency representative perfecting the Union's grievance by causing an arbitrator to be selected.

B.     Union's Opposition

      The Union contends that the Arbitrator's interpretation of Article 25, Paragraph 3, is reasonable. According to the Union, "the only waiver that exists as a result of paragraph 3 is the delaying party's waiver of its right to select an arbitrator because the delay triggers the FMCS to make the selection." Opposition at 5.

      The Union also contends that the award is not contrary to law. Specifically, the Union maintains that "the Arbitrator's interpretation of Article 25, paragraph 3, does not require the Agency to prosecute union grievances." Id. at 6. The Union claims that the Arbitrator's interpretation "does not require any action at all on the part of the Agency for failure of the Union to select an arbitrator." Id.

IV.     Analysis and Conclusions

A.     The Agency's Essence Exception Does Not Provide a Basis for Finding the Award Deficient

      The Agency's essence exception challenges the Arbitrator's finding that the grievance is procedurally arbitrable. "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." AFGE, Local 2172, 57 FLRA 625, 627 (2001) (citing John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964)). Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). The Agency's essence [ v58 p518 ] exception challenges the Arbitrator's finding that, under Article 25, Paragraph 3, the grievance was properly before him and, as such, directly challenges the Arbitrator's procedural arbitrability determination itself. Consequently, it provides no basis for finding the award deficient. Id.

      Accordingly, we deny the Agency's exception.

B.     The Agency's Contrary to Law Exception Does Not Provide a Basis for Finding the Award Deficient

      The Agency contends that the award requires the Agency to act for the Union in invoking arbitration and thereby requires the Agency to violate §§ 7116(a)(1) and (3) and 7120(e) of the Statute. When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dep'ts of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      Under § 7120(e) of the Statute, management officials, supervisors, and confidential employees are expressly prohibited from participating in the management of a labor organization. [n2]  In this regard, the Arbitrator found that, under the contract, where either party failed to select an arbitrator, or delayed making a selection, FMCS was empowered to appoint an arbitrator to hear the case. On that basis, the Arbitrator denied the Agency's motion to dismiss the grievance on the ground that it was not procedurally arbitrable. The Arbitrator's determination does not require any action by the Agency that would violate either § 7120(e) or § 7116(a)(1) and (3) in the circumstances of this case. Consequently, the Agency's exception provides no basis for finding the award deficient under § 7122(a)(1) of the Statute.

      Accordingly, we deny the Agency's exceptions.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

Article 25, Sections 2 and 3 provide as follows:

ARTICLE 25

ARBITRATION

      2. Within five workdays after the Commander or the Union President or designee receives the arbitration request, the Employer and the Union will jointly request that the Federal Mediation and Conciliation Service (FMCS) submit a list of five impartial persons qualified to act as arbitrators. Representatives of the Union and the Employer will meet within seven workdays after receipt of such a list. A representative of the Union and a representative of the Employer will each strike one arbitrator's name from the list of five; they will then repeat this procedure. A flip of a coin will decide which party strikes first.

      3. The Federal Mediation and Conciliation Service shall be empowered to make a direct designation of an arbitrator to hear the case in the event:

a. Eith