Bremerton Metal Trades Council (Union) and United States, Department of the Navy, Puget Sound Naval Shipyard (Agency)

[ v59 p583 ]

59 FLRA No. 104

BREMERTON METAL
TRADES COUNCIL
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
(Agency)

0-AR-3642

_____

DECISION

January 20, 2004

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Martin Lubow filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. [n1]  The Agency filed an opposition to the Union's exceptions. [n2] 

      For the reasons that follow, we deny the Union's exceptions.

II.     Preliminary Matters - Party Filings

      The Arbitrator's award was sent to the parties by email on November 26, 2002. The Union filed exceptions on December 24, 2002. The Agency filed an opposition on January 29, 2003.

      On January 28, 2003, the Union also filed amended exceptions based on alleged newly discovered evidence. That evidence consists of an affidavit from a former employee in the Agency's human resources office claiming that management engaged in ex parte discussions with arbitrators prior to hearings and that two Agency officials committed fraud by lying to the Arbitrator at the hearing. Affidavit of former employee at 3, 4.

      In response to the Union's amended exceptions, the Agency filed an amended opposition on March 3, 2003, which, among other things, contained a number of affidavits countering the claims made by the former human resources employee in his affidavit. Thereafter, the Agency submitted another filing entitled "Employer's Combined Motion Under 5 C.F.R. § 2429.26 for Leave to File Its Reply to the Union's Objections, the Employer's Reply to the Union's Objections, and in the Alternative, Under § 2429.23 for Waiver of the Time Limits for One Day" in which the Agency sought an extension for filing its original opposition and moved to have the Union's exceptions found deficient based on an inaccurate statement of service. [n3] 

      The Union countered by filing additional submissions which included: "The Union's Motion for Leave to File Responses to Submissions to the Agency of March 3 and March 24, 2003,"; "The Union's Request for the Agency to Take Official Notice and Union's Motion for Leave to File with Respect to `The Union's Amended Exceptions to the Arbitrator's Decision and Award of about 11/26/02'"; "The Union's Motion for Leave to File an Amended Statement of Service With Respect to `The Union's Amended Exceptions to the Arbitrator's Decision and Award of about 11/26/02' Served December 24, 2002"; an affidavit from the Union's attorney; "The Union's Objections to `Employer's Opposition to Union's Exceptions' filed with the FLRA on January 29, 2003"; and a letter from the Arbitrator dated January 4, 2003. These submissions were filed either in support of the Union's position that the Agency's opposition was untimely or to reinforce its assertion that the Arbitrator was biased.

A.     The Agency's Opposition was Untimely

      We have examined the Agency's submissions as they relate to whether the Agency's opposition was timely filed. Those submissions reflect the Agency's [ v59 p584 ] awareness that the Union filed its exceptions with the Authority by mail on December 24, 2002. Therefore, the Agency's opposition had to be served upon the Authority by January 28, 2003 (30 days after the exceptions were deposited in the U.S. mail, per 5 C.F.R. § 2425.1, plus an additional five days added because delivery was made by mail, per 5 C.F.R. § 2429.22). Because the Agency's opposition was hand-delivered to the Authority, the date of service is the date of that delivery, January 29, 2003. See 5 C.F.R. 2429.22 (5 days added to prescribed period only when documents delivered by mail). Accordingly, the Agency's opposition was not timely filed.

      The Agency has not established any basis for the Authority to accept the Agency's otherwise-untimely filed opposition. As noted in 5 C.F.R. § 2429.23(b), a waiver of an expired time limit must be based upon a showing of "extraordinary circumstances" justifying the waiver. As the Agency acknowledges receipt of the exceptions by at least December 30, 2002, the Agency still had sufficient time to prepare its opposition and effect service by January 28, 2003, and we find nothing in the Agency's submission that otherwise establishes an extraordinary circumstance justifying waiver of this time limit. United States Dep't of Veterans Affairs, Medical Ctr., Kansas City, Mo., 52 FLRA 282, 284 (1996). Similarly, we find that the Agency has established no basis for having the Authority require the Union to reaccomplish its service of its exceptions upon the Agency (and thus start a new time limit for filing an opposition) because the Union's statement of service misidentified the manner of service upon the Agency that was used by the Union (referencing overnight delivery rather than mail service). The Agency has not established that it has been harmed by this action. United States Dep't of Defense, Defense Logistics Agency, 39 FLRA 269, 272 (1991).

      Finally, regarding the Agency's request made under 5 C.F.R. § 2429.26, we find that the Agency has presented no convincing basis for the Authority to exercise its discretion and consider this otherwise untimely opposition. See AFGE, Local 2128, 58 FLRA 519, 519 n.1 (2003). Accordingly, we find that the Agency's opposition was untimely submitted and we do not consider it.

B.     The Union's Amended Exceptions are Untimely

      The remaining post-exception filings pertain to the Union's "amended exceptions." In support of its amended exceptions, the Union argues that, at the time the amended exceptions were filed, it had only recently discovered fraud in the proceeding, referring to the former employee's affidavit, and that this evidence of fraud, although filed after the deadline to file its exceptions, should be considered by the Authority. In making this contention, the Union relies on Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378 (11th Cir. 1988); Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir. 1982).

      The amended exceptions were untimely as they were filed approximately sixty days after the award was served on the parties. 5 C.F.R. § 2425.1(b). The Authority has determined that supplemental exceptions filed after the 30 day time period cannot be reviewed as to do so would circumvent the 30 day time period under § 7122(b) of the Statute which is jurisdictional and cannot be waived or extended by the Authority under § 2429.23(d) of the Authority's Regulations. See AFGE, Local 1917, 52 FLRA 658, 661 n.2 (1996). [n4]  Moreover, such a time limit is consistent, for instance, with the Federal Rules of Civil Procedure which also establishes a time limit for alleging fraud. See Fed. R. Civ. P. 60(b). As such, these supplemental submissions will receive no further review.

III.     Background and Arbitrator's Award

      On March 23, 2001, the Union filed an "on behalf of" grievance, similar to a class action grievance, for EDP under Section 3012 of the parties' agreement. [n5]  The Agency requested a four month extension to respond to the Union's request to provide information about members of the potential class. The Union agreed. Award at 8, 9. [ v59 p585 ]

      On August 24, 2001, the Agency issued a decision in which it determined that the Union's "on behalf of" grievance was filed in an untimely manner to the extent it sought a remedy for work performed 15 days or more prior to the filing of the grievance. Id. at 11. The decision was received by the Union on August 27, 2001.

      On September 4, 2001, pursuant to Section 3007 of the parties' agreement, the Union requested that the Agency confirm its position of non-grievability. On September 11, 2001, the Agency reiterated in part that it believed that the Union's grievance was untimely and advised that the Union "may request to arbitrate the non-grievability of the issue of coverage/timeliness in accordance with Section 3102 of the contract." Id. at 10.

      The Union received the Agency's response on September 21. On September 22, 2001, the Union president contacted Agency counsel to note that the Union had just received the Agency's response. Id. The Union claims that the president also asked for, and received, an extension of time to file any matter from the date of the phone call, September 22, 2001, not the date the Agency filed its decision on August 24, 2001. The Arbitrator determined that the Union failed to prove that this verbal extension was granted. Id. at 16-17.

      On October 19, 2001, the Union filed a demand for arbitration of the Agency's decision which had found that the "on behalf of" grievance was untimely. On October 30, 2001, the Agency notified the Union by letter that its request for arbitration was untimely as it was presented more than 30 days from the August 24, 2001, decision date. In support of its position, the Agency referred to Section 3101 of the parties' agreement which states that the Union has 30 days from the grievance decision to seek arbitration. Id. at 13.

      On November 26, 2001, a second grievance was filed by the Union. This grievance claimed that regardless of the timeliness of the original grievance, the Agency was obligated to confer with the Union on picking an arbitrator within 7 days under Section 3103 of the parties' agreement.

      The issues presented to the Arbitrator were as follows:

(1) Did the Union fail to timely invoke arbitration of Grievance CCN 05423-B?
(2) Did the Shipyard [Agency] fail to timely meet with the Union to select an arbitrator for the arbitration of Grievance CCN 05423-B?

Id. at 15.

      In his award, the Arbitrator found that the Union failed to timely invoke arbitration within 30 days from the day after the date of the Agency's final decision on August 24, 2001. [n6]  In arriving at this conclusion, the Arbitrator determined that the demand to arbitrate was not made until October of 2001, and discounted the Union's claim that it requested an extension of time on September 22, 2001.

      With regard to the second issue, the Arbitrator determined that the Agency was required to meet with the Union to pick an arbitrator to determine the arbitrability of the original "on behalf of" grievance. Accordingly, in his remedy, the Arbitrator instructed the Agency to respond to any additional Union requests for arbitration within seven days and, based on his resolution of the first issue presented, limited the parties to the legal rights that they enjoyed as of October 19, 2001. Id. at 26.

IV.     Positions of the Parties

A.     Union's Exceptions

1.     The Arbitrator Was Biased

      The Union claims that the Arbitrator was corrupt, biased, and partial. Exceptions at 30, 45. In support of this assertion, the Union offers the untimely letter and affidavit that were submitted with the Union's amended exceptions.

2.     The Arbitrator Failed to Conduct a Fair Hearing

      The Union claims that the Arbitrator failed to conduct a fair hearing. Specifically, through the submission of affidavits filed with its exceptions, the Union argues that the Arbitrator was incompetent because he failed to comprehend the evidence or arguments, fell asleep during the hearing, could not hear or keep up with testimony, failed to remember or comprehend evidence, treated Union witnesses in a disrespectful manner, and gave the Union a deadline to submit arguments but undercut that deadline by prematurely issuing his decision. Id. at 31-37 (citing Federal Employees Metal [ v59 p586 ] Trades Council, 49 FLRA 1096 (1994)); Appendix A of the Union's Exceptions, Affidavits tabbed as 2-10. Additionally, the Union concedes that it did not make a motion for the Arbitrator to recuse himself at the time of the hearing because the Arbitrator acted as if he was "getting it," despite his sleeping, and that the Arbitrator should have recused himself based on his familiarity with his own disabilities. Exceptions at 36, 46.

      The Union also argues in this exception that the Authority should determine whether the Arbitrator should have recused himself sua sponte, or, should have recused himself on motion from the Union after the issuance of the award. Exceptions at 29, 37, 46. Moreover, the Union asserts that the Authority should allow it to choose another arbitrator to resolve this matter.

      Finally, the Union argues that it failed to receive a fair hearing because the Arbitrator fell asleep during key testimony. Id. at 12. It contends that during that testimony, an Agency witness essentially conceded that he did not remember whether a Union representative had asked for an extension of time to file a demand for arbitration or not. Id. at 16.

3.     The Arbitrator Exceeded His Authority

      The Union claims that the Arbitrator exceeded his authority because he "changed, modified, altered, deleted and added" to provisions within the parties' agreement. Id. at 39. Specifically, the Union contends that "the arbitrator deleted the middle language of Section 3007, changed `final grievance step' to `2nd step' and altered Section's 3007's reference to Section 3102 to say `Section 3101.'" Id. at 39. (Emphasis in the original.)

      Along these lines, the Union claims both that the Arbitrator exceeded his authority and that the award fails to draw its essence from the contract because the Arbitrator applied a 30 day filing limit found in Section 3101 to a Section 3012 grievance that has no "second step" time limit. According to the Union, under the specific wording of Section 3101 a written request for arbitration must be submitted no later than thirty calender days "following the date of the second step grievance decision . . . ." Here, the Union argues that because Section 3012 grievances do not have a second step, Section 3101 is not applicable. Id. at 39-40. As such, it contends that the Arbitrator rewrote the contract.

      Moreover, the Union claims that the dispute was filed pursuant to Section 3007 of the parties' agreement and that, as such, Section 3101 and its 30 day time limit do not apply. The Union argues that under Section 3007, the parties have agreed to a four part procedure. Under that procedure, the Union argues that it is required to file its request to arbitrate only after the Agency has explained its decision, not within 30 days of the Agency's initial decision to deny the grievance. Id. at 40-41.

      Additionally, the Union contends that under Section 3007, after the Agency's initial grievance denial letter it can request that the employer give its reasoning for its decision, and that after it receives the response, so long as it "continues to disagree" with the Agency's denial, it may request arbitration.

      The Union also claims that the Arbitrator failed to resolve two issues submitted to arbitration. First, it argues that the Arbitrator "failed to resolve the remedy issue after ruling that the Agency failed to comply with an express provision of the contract that it meet within seven working days from the date of an arbitration request to discuss selection of an arbitrator." Id. at 42. Moreover, the Union claims that the Arbitrator "skipped a subsidiary issue, that the Agency had missed its deadline for filing a response to Grievance 2 - the Council Grievance concerning the question of whether the Union's request for arbitration was timely and concerning the question of whether the employer violated the agreement by refusing to meet to select an arbitrator, and if so, what should be the remedy." Id. at 42-43.

      Second, the Union argues that the remaining issue the Arbitrator failed to resolve was "whether he would recuse himself." Id. at 43.

4.     The Award is Based on a Nonfact

      The Union claims that the award is based on a nonfact. Id. at 43. In this regard, the Union contends that the Arbitrator relied on a nonexistent past practice when he applied a 30 day deadline to a Section 3007 dispute. Id. at 45.

B.     Agency's Opposition

      For the reasons expressed above, the Agency's opposition was untimely filed under 5 C.F.R. § 2425.1(c), and has not been considered.

IV.     Analysis and Conclusions

A.     Standard Applicable to Cases Involving An Issue of Procedural Arbitrability

      An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See AFGE, Local 1501, 56 FLRA 632, 636 (2000); United States Dep't of Def., Dependents Sch., 55 FLRA 1108, 1110 (1999) (Dependents Sch.). 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 id. Such grounds include arbitrator bias or where the arbitrator has exceeded his or her authority. See id. [ v59 p587 ]

B.     The Arbitrator Was Not Biased

      To establish 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. NAGE, Local R1-109, 58 FLRA 501, 504 (2003) (Local R1-109). See also, United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 57 FLRA 417, 422 (2001) (Indian Head) (with respect to a claim of personal bias involving an arbitrator, a party must raise that claim for the first time at the hearing, if it could be raised there, or the Authority will not entertain such claims in the absence of extraordinary circumstances).

      The Union states in its first exception that the Arbitrator was either partial or corrupt, and in its last exception that the Arbitrator was biased. Exceptions at 30, 45. However, the Union's evidence is limited to the affidavit of the former human resources employee and a letter sent by the Arbitrator on January 4, 2003. Both the letter and affidavit were submitted with the Union's amended exception which we have found to be untimely. Accordingly, in the absence of any reviewable evidence, we find that the Union has failed to show that the Arbitrator was partial, corrupt or biased. Local R1-109, 58 FLRA at 504.

C.     The Arbitrator Conducted a Fair Hearing

      The Authority has stated that an award will be found deficient on the ground that an arbitrator failed to conduct a fair hearing when it is established that an arbitrator's refusal to hear or consider pertinent or material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceedings as a whole. Dependents Sch., 55 FLRA at 1110. However, an arbitrator has considerable latitude in the conduct of a 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. United States Dep't of Defense, Defense Mapping Agency, Hydrographic/Topographic Ctr., 44 FLRA 103, 108-09 (1992). Further, 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. Id. at 109.

      Here, the Union claims that the Arbitrator failed to conduct a fair hearing because he fell asleep during certain testimony, could not adequately hear, could not comprehend evidence or arguments (was incompetent), treated the Union witnesses disrespectfully, and was "prejudiced from the outset and to the very end against the Union's position . . . [as shown by issuing] a signed and dated Decision and Award before receiving the Union's final comments." Exceptions at 30, 32-33, 35, 45. Moreover, the Union claims that taken together these actions amount to a failure to conduct a fair hearing. Id. at 34 (citing National Gallery of Art, 39 FLRA 226 (1991)). Finally, the Union argues that the Authority should determine if the Arbitrator should have recused himself and should allow it to choose another arbitrator to resolve this matter.

1.     The Arbitrator's Actions During the Hearing

      To begin, the Union claims that the Arbitrator failed to conduct a fair hearing because he fell asleep during the Union's cross-examination of an Agency witness on the second day of the hearing. In this respect, the Union claims that it was denied due process and, thus, that the Arbitrator failed to conduct a fair hearing. Exceptions at 35 (citing Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (case involving due process in a criminal matter)). After review of the record, however, we conclude that the actions of the Arbitrator do not amount to a denial of a fair hearing.

      According to the transcript, the Arbitrator stated that he had "an involuntary moment of dozing" while the Union was cross-examining an Agency witness. Transcript of September 27 at 123. The Arbitrator offered to remedy the situation by having the court reporter read the last three questions and answers of the witness. That was done, and the Arbitrator turned the questioning back over to Union counsel. At this point, counsel made no objections, either to the sufficiency of the steps taken by the Arbitrator to remedy his momentary sleep, or a motion to recuse based on what counsel now claims to be a deprivation of a fair hearing. Instead, counsel merely stated, "[n]o further questions." Id. Accordingly, under these circumstances, we conclude that the Union has failed to demonstrate how it was prejudiced.

      With respect to the Union's next three contentions, i.e., that the Arbitrator could not hear testimony, that he was unable to comprehend the matter presented to him and was incompetent, and that at times he treated Union witnesses in a harsher manner than Agency witnesses, we again do not find that the hearing was so prejudiced as to deny the Union a fair hearing. Turning to the first contention, even if the Arbitrator did have difficulty hearing, we find that requiring witnesses or counsel to speak in a louder tone than normal does not show prejudice against the Union. Moreover, after reviewing the Arbitrator's award we conclude that the Union has failed to demonstrate how it exhibits any manifest incompetence as argued by the Union or that the Arbitrator was unable to comprehend the issues or evidence presented in this matter. Lastly, the Union has not pointed to any specific examples in the record of how its witnesses were unfairly treated. However, even if it had, an arbitrator has considerable latitude in the [ v59 p588 ] conduct of a hearing and we will not find an award deficient merely because a party finds that conduct objectionable. See United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, Tex., 45 FLRA 797, 801 (1992) (Union claim that witnesses weren't afforded the same courtesy that management's witnesses were afforded was not enough to show that the award was deficient).

      Finally, although our decision in Indian Head dealt with personal bias, the principles recognized in that precedent and originally set forth in Veterans Admin., Reg'l Office, 5 FLRA 463, 470-71 (1981) (Veterans) apply equally in cases involving allegations of an unfair hearing. As was stated in Veterans, "unless parties are bound by the records made before the arbitrators, the piecemeal or staggered submission of evidence would be likely to erode the effectiveness of arbitration as a speedy and efficient forum for resolving labor disputes." Id. at 471 (quoting Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d 1234, 1238 (D.C. Cir. 1971)). Therefore, we caution parties that absent extraordinary circumstances, issues involving arbitrator conduct at the hearing should be raised at the hearing. When they could have been, but were not raised before the arbitrator, such issues will not be considered for the first time on review of the award unless extraordinary circumstances are present. See, e.g., Indian Head, 57 FLRA at 422; Food and Drug Admin., Cincinnati Dist. Office, 34 FLRA 533, 535-36 (1990).

      Accordingly, based upon a thorough review of the record, the Union has failed to show that the Arbitrator failed to conduct a fair hearing. For the same reasons, we reject the Union's claim that the Arbitrator should have recused himself.

2. Claim that the Arbitrator Breached the Agreeent After Granting the Union Additional Time for Its Submission

      The Union claims that the Arbitrator granted it additional time to submit arguments after the Arbitrator had issued his November 26, 2002, decision. In this respect, on November 27, 2002, the Arbitrator wrote via email:

[Union Counsel], [y]our e mail this morning arrived, but I was only able to scroll down part of the way and haven't read it all even after re-booting. I have tried to call [Agency Counsel] this morning to find out how I can e mail him but he may be off for the holiday. I think he should be part of this discussion. I will go over your memo when I can read it, and in the meantime hold off reissuing a signed decision. So let us all take a hiatus. (Emphasis added).

Union's Exceptions Appendix A, Part B - email from the Arbitrator to Union Counsel dated November 27, 2002.

      The Union responded by stating:

      Gentlemen:

I would suggest that [Agency Counsel] and I transmit (by email) by close of business on this Friday (12/6/02) any additional comments we have that pertain to the draft opinion and award. (Emphasis Added).

Union's Exceptions Appendix A, Part B - email from the Union Counsel to the Arbitrator and Agency Counsel dated December 2, 2002.

      The Union points to no email or other agreement from the Arbitrator that permitted the parties to submit additional argument up to December 6, 2002. Rather, while the Union suggested such a date, the Arbitrator's email stated that he would merely hold off on reissuing his signed award while he contacted Agency counsel and reviewed a memo submitted by the Union on November 27, 2002. In fact, the Arbitrator responded to the Union's memo and several other emails sent by Union counsel on November 26 and 27, as well as in his Post Decision Memorandum signed December 4, 2002. Accordingly, the Union has not shown how the Arbitrator's decision, to reissue his unchanged original award after reviewing the Union's additional arguments, denies the Union's right to a fair hearing.

3.     The Award Will Not Be Remanded to Another Arbitrator

      We note that we have allowed a party to choose a new arbitrator only after finding it necessary to remand a case and where either the original arbitrator was unavailable or the record clearly demonstrated that the original arbitrator could no longer be of any help to the parties. See, e.g., United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 57 FLRA 417, 422 (2001). As this case can be resolved without a remand, the Union's request is denied. See Exceptions at 31-32, citing United States Dep't of the Air Force, Seymour Johnson Air Force Base, North Carolina, 56 FLRA 249, 254 (2000) (arbitrator on own initiative recused himself from considering attorney fees as he believed he no longer could remain neutral as he had a fee dispute with one of the parties); United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA 77, 84 (2002) (Member Pope dissenting) (remand necessary for resolution of the matter). [ v59 p589 ]

D.     The Arbitrator Did Not Exceed His Authority and The Award Does Not Fail to Draw Its Essence From The Agreement

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Moreover, in reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it [i]s the arbitrator's construction of the agreement for which the parties have bargained[.]" Id. at 576-77.

      First, the Union argues that the award fails to draw its essence from the agreement because the Arbitrator applied "the 30-day time limit specified in section 3101 of the agreement to a request for arbitration of a section 3007 dispute despite the fact that section 3007 makes no reference to 3101, despite the fact that section 3007 has no second step grievance decision, and despite the fact that section 3007 makes specific reference to arbitrating `in accordance with section 3102'". Exceptions at 40. As this constitutes an essence exception, and a party may not challenge a procedural arbitrability determination on the basis that the arbitrator misinterpreted the contract, this exception is denied. See Dependents Sch., 55 FLRA at 1110.

      The Union also argues that the Arbitrator exceeded his authority by failing to resolve the remedy issue after having found the Agency improperly failed to meet with the Union to discuss selection of an arbitrator, and by failing to resolve the issue of whether he would recuse himself.

      It is clear that the Arbitrator did not fail to resolve the remedy issue. The Arbitrator granted the Union a remedy as reflected by the award's language that "the Employer shall meet to select an arbitrator if and when requested by the Union to do so within the seven days provided in the agreement." Award at 26. As for the argument that the Arbitrator exceeded his authority by failing to resolve the issue of whether he would recuse himself, we note that the Union raised this issue only after the award was issued, and thus, it was not an issue submitted to arbitration.

      Accordingly, as the Arbitrator's award is directly responsive to the issues before him, does not fail to resolve an issue submitted to arbitration or resolve an issue not submitted to arbitration and does not disregard a specific limitation on his authority, the Union has failed to show that the Arbitrator exceeded his authority. See AFGE, Local 1749, 58 FLRA 459, 461 (2003).

E.     The Award is Not Based on Nonfact

      The Union's nonfact argument, that the Arbitrator relied on a nonexistent past practice, is essentially an exception to the Arbitrator's resolution of the threshold procedural arbitrability issue. As we previously stated, 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. As the Union's nonfact exception challenges the procedural arbitrability determination itself, the exception provides no basis for finding the award deficient. See, e.g., AFGE, Local 2172, 57 FLRA 625, 627 (2001).

      However, even if this exception did not directly challenge the Arbitrator's procedural arbitrability determination, we nonetheless deny it. In this respect, to establish that an award is deficient as based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). Moreover, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. United States Dep't of Health and Human Serv., Denver, Colo., 56 FLRA 133, 135 (2000).

      Here, the Union asserts that the Arbitrator relied upon a past practice that did not apply to grievability disputes. However, the Arbitrator's decision was based not only on the existence of this past practice, but, as he noted, on the intent of the negotiators to apply this 30 day time limit. This reflected his interpretation of the parties' agreement and his rejection of the Union's alternative interpretation. Award at 19. As such, the Union has failed to show that even if the evidence did not establish the existence of this past practice, that the Arbitrator would have reached a different result. Accordingly, we deny the exception.

V.     Decision

      The Union's exceptions are denied. [ v59 p590 ]


Appendix

Section 3012 Council and Employer Grievance Procedure.

a. Definition.
1. A Council or Employer Grievance is defined as a complaint which is not identifiable to aspecific individual employee but is the result of an action by either party that significantly affects the provisions of this written Agreement.
2. An "On Behalf Of" Employee Grievance is defined as any grievance filed by a Council Representative to which the named employee(s) is not signatory and which is specific to the named employee(s).

Section 3007 Grievability, and Arbitrability Disputes.

a. The parties acknowledge that during the life of the Agreement disputes regarding the coverage (see Section 3001) of the Grievance Procedure or timeliness (Section 3002 a) may arise. When the Employer raises such an issue, the Employer's decision may be limited to a statement on the Grievance Form that the matter is not grievable/not timely. If the Council disagrees with the Employer, the Council President will request, in writing within ten (10) working days of receipt of the Employer's decision, confirmation from Code 160 of the non- grievability position. The original Grievance Form will be attached to the Council President's request. Code 160 will issue a written response to the Council President explaining the Employer's position within five (5) working days of receipt of the request. If the Council continues to disagree with the Employer's position the Council may request to arbitrate the non-grievability of the issue of coverage/timeliness in accordance with Section 3102.
b. Following the receipt of a decision that a grievance is not excluded by Section 3001 d or is timely, the parties may then resume the processing of the grievance on its merits at that step at which the statement of non-grievability/untimeliness was issued. The parties agree that no grievance may proceed to Arbitration absent a decision on the merits at the final step of either the employee or Council and Employer Grievance Procedures.

Section 3101 Submission. The parties agree that prior to considering arbitration every effort shall be made to resolve grievance in house, and will direct their resources towards achieving that goal. If such efforts fail, the grievance may, upon written request of the party desiring arbitration, be referred to arbitration. Such written request must be submitted not later than thirty (30) calendar days following the date of the 2nd step grievance decision (except as specified in 3005 b). In addition to these efforts, the parties will jointly explore settlement of the grievance at the prearbitration conference.

Section 3102 Authority to Invoke. Arbitration may be invoked only by the Council or the Employer. Arbitration on an employee grievance may be invoked only by the Council. Arbitration concerning an Employer or Council grievance may be invoked by the party initiating the grievance. Arbitration may not be invoked on employee grievances which have been submitted for direct adjustment.

Section 3103 Selection of an Arbitrator. Within seven (7) working days from the date of the arbitration request, the parties shall meet for the purpose of endeavoring to agree on the selection of an arbitrator. If the parties cannot agree to the selection of an arbitrator, either party may request a list of five (5) impartial persons, qualified to act as arbitrator, from the Federal Mediation and Conciliation Service (FMCS). The parties shall then meet again, within three (3) working days following the receipt of the list from FMCS. If the parties cannot agree on one (1) of the arbitrators on the FMCS list, then the Council and the Employer will each strike one (1) arbitrator's name from the list. This striking process shall be repeated and the remaining name shall be the duly selected arbitrator.



Footnote # 1 for 59 FLRA No. 104 - Authority's Decision

   As discussed below, both parties made additional submissions after making their initial filings.


Footnote # 2 for 59 FLRA No. 104 - Authority's Decision

   For the reasons discussed below, the Agency's opposition was untimely filed.


Footnote # 3 for 59 FLRA No. 104 - Authority's Decision

   The Agency requested that the Authority waive the filing deadline because it received the Union's exceptions on December 30, 2002, rather than by the overnight courier the Union stated it had used on December 24, 2002, as indicated by the Union's statement of service. In the alternative, the Agency argues that the error in the statement of service caused the Union's exceptions to be procedurally deficient and in order to correct the deficiencies the Authority should issue an order requiring the Union to correct the error. In so doing, the Agency argues that it should be granted additional time in which to file its opposition. Finally, the Agency contends that even if the Authority does not issue such order, the Agency should nevertheless be granted a waiver of time pursuant to 5 C.F.R. § 2429.23(b).


Footnote # 4 for 59 FLRA No. 104 - Authority's Decision

   Chairman Cabaniss notes that even if the Authority were able to waive the time limit for filing based on some sort of equitable consideration, the Union has failed to show by clear and convincing evidence that fraud was present. In reaching this conclusion, the Authority has determined that in order to find an award deficient based on an allegation of fraud, the fraud: (1) must not have been discoverable on the exercise of due diligence prior to arbitration; (2) must materially relate to an issue in the arbitration; and (3) must be established by clear and convincing evidence. International Association of Machinists and Aerospace Workers, Local 2333, 53 FLRA 1605, 1608 (1998). While the Union has produced an affidavit of a former human resources employee of the Agency who makes the fraud allegations, the Agency has similarly produced several affidavits which directly counter the assertions of the Union's witness. Moreover, with respect to the first asserted impropriety, even the Union's affiant notes, "I do not have first hand knowledge than anyone from HRO actually talked to the arbitrator . . ." prior to the hearing in this case. See Affidavit of former employee at 3; Agency's Opposition to the Union's Amended Exceptions with accompanying affidavits. Thus, there is no clear and convincing evidence that fraud was present.


Footnote # 5 for 59 FLRA No. 104 - Authority's Decision

   Pertinent contract provisions are set forth at the end of this decision in the appendix.


Footnote # 6 for 59 FLRA No. 104 - Authority's Decision

   The Arbitrator found that the parties' agreement was ambiguous because it used the term "second step" grievance to begin the 30 day filing deadline even in situations where, as here, the grievance does not have a second step. Section 3101. In resolving this, the Arbitrator found that based on the testimony of Agency witnesses, and a past practice of 15 years, the time frame for "on behalf of" grievances began at the final decision of the Agency, August 24, 2001, and the term "second step" was essentially a typogra