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

[ v59 p696 ]

59 FLRA No. 125

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

and

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

0-AR-3753

_____

DECISION

February 26, 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 Lawrence I. Hammer 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. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the grievance was arbitrable and that the Union violated the parties' agreement by refusing to reimburse the Agency for the money the Agency paid to an arbitrator in a previous grievance whose award was set aside by the Authority in United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 57 FLRA 847 (2002) (Member Pope dissenting) (Seymour Johnson AFB). For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      In an initial award, Arbitrator Seltzer sustained a grievance -- the first grievance -- against the Agency and billed the Agency for his services. The Agency deemed the fee excessive and paid Arbitrator Seltzer a lesser amount.

      The Union then filed a second grievance concerning the outstanding balance of Arbitrator Seltzer's bill. The second grievance was submitted to arbitration and heard by Arbitrator Statham. Arbitrator Statham concluded that the Agency was the "losing party" within the meaning of Article 43, Section 4 ("§ 4") of the parties agreement, and ordered the Agency to pay the outstanding balance of Arbitrator Seltzer's bill. [n1] The Agency filed exceptions and the Authority set aside the award, finding that Arbitrator Statham had no authority to resolve the second grievance or to order the Agency to pay Arbitrator Seltzer's fee. See Seymour Johnson AFB, 57 FLRA at 850.

      Subsequently, the Agency sought reimbursement from the Union for the fees the Agency had paid to Arbitrator Statham prior to filing its exceptions. When the Union did not reimburse the Agency, the Agency filed a third grievance, which was unresolved and was submitted to arbitration before Arbitrator Hammer. Because the parties could not agree to a stipulated issue regarding arbitrability, the Arbitrator -- in the award at issue here -- referenced both parties' statements of the issues. The Agency and Union, respectively, framed their arbitrability issues to be: "Is the Employer grievance not procedurally arbitrable because the grievance or arbitration was not timely?" and "Did the Agency timely file a grievance or invoke arbitration?" Award at 3. In addition, because the parties could not agree to a stipulated issue regarding the merits of the grievance, the Arbitrator framed the issue to be: "Did the Union violate Article 43 of the Negotiated Agreement by refusing to reimburse the Agency for the money paid by the Agency to Arbitrator Statham whose decision was set aside by the FLRA?" Id. at 15.

      The Arbitrator rejected the Union's argument that the grievance was not timely filed under Article 42, Section 18 ("§ 18") of the parties' agreement. [n2] The Arbitrator also rejected the Union's argument that the Agency failed to timely invoke arbitration under Article 43, Section 1 ("§ 1") of the parties' agreement. [n3] The Arbitrator found that during the processing of the grievance, "[n]either party appeared to be concerned about the negotiated time frames" and that "the parties appear to have waived [the] time limitations" set forth in their agreement. Award at 14. Accordingly, the Arbitrator concluded that the grievance was arbitrable.

      In resolving the merits of the grievance, the Arbitrator found that the result of the Authority's decision in Seymour Johnson AFB was to reverse the outcome of the second grievance, thereby making the Union the [ v59 p697 ] "losing party" within the meaning of § 4. The Arbitrator determined that, although the parties' agreement does not address the situation where an arbitrator's decision is set aside by the Authority, "there is nothing in the contract's language that precludes the original winner [the Union] who now after the appeal is the loser from reimbursing the ultimate winner [the Agency]." Id. at 18. Accordingly, the Arbitrator concluded that, because the Authority's decision made the Union the "loser," the Union violated § 4 of the parties' agreement by refusing to reimburse the Agency for the money the Agency had paid to Arbitrator Statham. Id. at 20.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator's determinations that the Agency timely filed the grievance and timely invoked arbitration fail to draw their essence from § 18 and § 1, respectively. The Union further argues that the Arbitrator exceeded his authority by creating an exception to the parties' agreement provisions concerning timely filings.

      In addition, the Union contends that the Arbitrator's conclusion that the Union is the "losing party" and must reimburse the Agency fails to draw its essence from § 4. Specifically, the Union argues that, under § 4, the "losing party is essentially a factual conclusion properly left to the arbitrator and not the FLRA," and that "while an appeal may impact the decision on the merits it does not determine the prevailing party." Exceptions at 6. In this connection, the Union claims that § 4 "requires the party that loses before the arbitrator to pay regardless of any appeal on the merits . . . . " Id. at 6-7.

B.     Agency's Opposition

      The Agency contends that the exceptions to the Arbitrator's timeliness determinations are direct challenges to the Arbitrator's determination of procedural arbitrability and, thus, are not reviewable by the Authority. In addition, the Agency disputes the Union's contention that the award fails to draw its essence from § 4. In this connection, the Agency maintains that the Arbitrator's conclusion that the Union became the "losing party" after the Authority's decision in Seymour Johnson AFB is a plausible interpretation of the parties' agreement.

IV.     Analysis and Conclusions

A.     The Arbitrator's procedural arbitrability determinations are not deficient.

      An arbitrator's determination regarding the timeliness of a grievance constitutes a determination of the procedural arbitrability of that grievance. See United States Dep't of Defense Dependents Schools, 55 FLRA 1108, 1110 (1999). Procedural arbitrability determinations may be found deficient only on grounds that do not challenge the procedural arbitrability determination itself. See id. Such grounds include bias on the part of the Arbitrator or a showing that the Arbitrator exceeded his authority. See id.

      The Union's essence arguments concerning the timeliness of the Agency's filing of the grievance and invocation of arbitration challenge the Arbitrator's interpretation of the agreement's timeliness provisions. Such arguments directly challenge the Arbitrator's determination of procedural arbitrability and, therefore, do not demonstrate that the award is deficient. United States Dep't of the Treasury, United States Mint, Phila., Pa., 51 FLRA 1683, 1686 (1996). Accordingly, we deny the exceptions. [n4] 

B.     The award draws its essence from the parties' agreement.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union argues that the award fails to draw its essence from § 4 of the parties' agreement because the Arbitrator, not the Authority, is charged with determining the "losing party". The Arbitrator determined that the result of the Authority's decision in Seymour Johnson AFB, which set aside an award favoring the Union, was to make the Union the "losing party". He concluded that, although the parties' agreement is silent as to what happens if an arbitrator's decision is reversed or overturned by the Authority, "there is nothing in the contract's language that precludes the original winner [the Union] who now after the appeal is the loser from reimbursing the ultimate winner [the Agency]." Award at 18. The Union has not demonstrated that the Arbitrator's interpretation of the agreement in this regard is irrational, unfounded, or implausible. Accordingly, we deny the exception.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 59 FLRA No. 125 - Authority's Decision

   Article 43, Section 4 of the parties' agreement provides, in relevant part, that "[a]ll fees and expenses, if any, of the arbitrator shall be borne by the losing party" and that "[t]he Arbitrator shall determine the losing party." Exceptions, Attachment at 37 (Collective Bargaining Agreement).


Footnote # 2 for 59 FLRA No. 125 - Authority's Decision

   Article 42, Section 18 of the parties' agreement provides, in pertinent part, "[e]mployer grievances shall be filed with the Union president . . . within ten (10) workdays of the matter grieved or ten (10) workdays of the Employer becoming a