United States, Department of the Treasury, Internal Revenue Service, Austin, Texas (Agency) and National Treasury Employees Union (Union)

[ v60 p360 ]

60 FLRA No. 75

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
AUSTIN, TEXAS
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3858

_____

DECISION

October 29, 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 L. C. Bajork 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.

      The Agency argues that the Arbitrator exceeded his authority when he determined that the Union's grievance was timely filed. The Agency also contends that the arbitrability determination fails to draw its essence from the parties' agreement. For the reasons that follow, we deny the Agency's exceptions.

II.     Background

      On May 19, 2003, the Agency sought volunteers from the Error Resolution System (ERS) bargaining unit to be temporarily detailed offsite. Award at 2. On June 11, 2003, the Agency sent an email to members of the bargaining unit notifying them of the opportunity to work overtime. However, the email also specifically stated that "[y]ou in the detail, because you're working elsewhere, aren't eligible for overtime here." Id. at 5-6. Accordingly, the Union filed this grievance seeking a remedy for 19 detailed employees, and the Arbitrator framed the issues as follows:

Is the grievance arbitrable and,
If so, did the Employer violate Article 24, Section 2A.1. and 2A.2?
If so, what is the proper remedy?

Id. at 4.

      In resolving these issues, the Arbitrator focused on Article 41, Section 6A and Article 24, Section 2A.1 and 2 of the parties' agreement. [n1]  Under Article 24, Section 2A.1. the Arbitrator found that the Agency had a "non-discretionary duty to `contact the [Union] to discuss equitable distribution [of overtime].'" Id. at 8. The Arbitrator determined that when the Agency failed to do so, the "Union was denied timely notification of the described overtime opportunity and, therefore, its contractual right to discuss `equitable (overtime) distribution' on behalf of all ERS employees." Id. at 9. After making this determination, the Arbitrator concluded that:

The Employer's failure to perform its affirmative duty [of Union notification] established a condition precedent to a finding for arbitrability of the subject matter grievance.
Therefore, in consideration of the foregoing, the Employer's motion for non-arbitrability of the Union's July 19 grievance is denied.

Id. (emphasis in original). Accordingly, the Arbitrator found that the grievance was timely filed and resolved the matter in favor of the 19 detailed employees.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the Arbitrator's procedural arbitrability determination is subject to challenge because the Arbitrator exceeded his authority under the parties' collective bargaining agreement. Exceptions at 5 (citing AFGE, Local 2921, 50 FLRA 184, 186 (1995) (Local 2921)). Specifically, the Agency claims that Article 43, Section 4, divests the Arbitrator of the ability to "add to, subtract from, alter, amend, or modify any provision of this agreement, or impose on either the Employer or the Union any limitation or obligation not specifically provided for under the terms of this agreement." [ v60 p361 ] Exceptions at 7. In this regard, the Agency contends that the Union was obligated to file a grievance within 15 days from June 11 and that by "imposing a `condition precedent' upon the Union's obligation to file a grievance within 15 workdays of the triggering incident, he [the Arbitrator] is indeed imposing upon the employer an obligation not specifically provided for under the terms of the Agreement." Id. Moreover, the Agency also argues that the Union never asserted that "it or the grievants did not have knowledge of the June 11, 2003, e-mail to the bargaining unit employees announcing the upcoming available overtime hours," and in fact contends that "[t]he Union immediately knew that the Agency notified the bargaining unit employees" on June 11. [n2]  Id. at 5, 9. As such, it claims that the Arbitrator exceeded his authority under Article 43, Section 4. Id. at 7-8.

      Moreover, the Agency argues that the award fails to draw its essence from the agreement. Id. at 8. It acknowledges that under Authority precedent the Authority will not review procedural arbitrability decisions on grounds that challenge the determination of procedural arbitrability itself, but nevertheless requests that the Authority "reconsider the propriety of refusing to consider that an award fails to draw its essence from the agreement as an additional basis for finding an award deficient in relation to its procedural arbitrability." Id. (citing Local 2921, 50 FLRA 184). To support its argument, it contends that the Arbitrator exceeded his authority because the award failed "to draw its essence from the collective bargaining agreement." Id.

      Turning to the specifics of its essence arguments, the Agency claims that the Arbitrator's award "manifests an infidelity to his obligation as an arbitrator, i.e., following plainly stated time deadlines[,]" and that the award does not provide a plausible interpretation of the contract. Id. at 9. In this regard, the Agency contends that the Arbitrator found so "objectionable that the grievants should not receive overtime, that [the Arbitrator] create[d] an equity argument of `condition precedent' in order to ignore the fact that the Union simply did not file the grievance in time." Id. Accordingly, the Agency contends that the award fails to draw its essence from the parties' agreement.

B.     Union's Opposition

      The Union contends that the Agency's grounds for its exceptions amount to "nothing more than a challenge to `the determination of procedural arbitrability itself' and should therefore be dismissed." Opposition at 3 (citing Local 2921, 50 FLRA at 185.) Further, it rejects the Agency's attempt to have the Authority review procedural arbitrability on essence grounds arguing that if the Authority were to do so, the Authority would then be "in the business of second-guessing questions of procedural arbitrability in every case." Id.

      Alternatively, the Union argues that even if the Authority were to review the Agency's essence arguments, that the Arbitrator "carefully and cogently interpreted" the interplay between the overtime and procedural arbitrability provisions in the parties' contract. Id. In this respect, it contends that "[b]ecause of the Agency's egregious violation of this affirmative obligation [notification to the Union], it [the Agency] was essentially estopped by the operation of the terms of the agreement from asserting the employees were untimely in filing their grievance over the inequitable distribution of the overtime." Id. at 4. As such, it argues that the Agency's exceptions "provide no acceptable ground for disturbing the Arbitrator's Award." Id.

IV.     Analysis and Conclusions

      The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., AFGE Local 3882, 59 FLRA 469, 470 (2003) (Local 3882). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id. (citing AFGE Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id. See also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing Local 2921, 50 FLRA at 185-86). An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).

      Turning first to the Agency's essence argument, the argument rests squarely on the ground that the Arbitrator improperly interpreted and applied the agreement's timeliness provision. This argument, however, directly challenges the Arbitrator's determination of procedural arbitrability and provides no basis for setting [ v60 p362 ] aside the Arbitrator's ruling. Local 3882, 59 FLRA at 470; United States Dep't of Veterans Affairs, Eisenhower Med. Ctr., Leavenworth, Kan., 50 FLRA 16, 19-20 (1994) (quoting John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) ("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."). Additionally, the Agency has not demonstrated that our procedural arbitrability precedent should be modified. Therefore, applying that precedent, we deny this Agency exception.

      The remaining Agency argument is that the Arbitrator exceeded his authority. Specifically, the Agency argues that the Arbitrator exceeded his authority by "imposing upon the [Agency] an obligation [notification of the Union] not specifically provided for under the terms of the Agreement." Exceptions at 7.

      However, this exception also fails because the Arbitrator did not clearly violate an express limitation. See, e.g., United States Dep't of Defense Dependents Schools, 49 FLRA 120, 123 (1994) (arbitrator found to have exceeded his authority when he failed to adhere to a self imposed limitation of holding a hearing prior to issuing a final award). Rather, the Arbitrator properly exercised his power under both the agreement and Authority case law to interpret relevant provisions of the agreement in resolving the issue of whether the Agency must first notify the Union, not members of the bargaining unit, about overtime opportunities prior to determining whether a grievance would otherwise be constrained by the time limitations under Article 41, Section 6A of the parties' agreement. As such, the Agency's exception is merely an attempt to recast the Arbitrator's contract interpretation action as an exceeded authority allegation based upon an improper contract modification. See SSA, 57 FLRA 530, 537 (2001); AFGE, Local 1546, 52 FLRA 94, 98 (1996); United States Dep't of the Treasury, United States Mint, Philadelphia, Pa., 51 FLRA 1683, 1684-86 (1996) (where arbitrator properly engaged in interpretation of agreement language, attempt to challenge arbitrator's contract interpretation as exceeds authority exception was not permitted). Accordingly, this exception does not provide a basis for finding the award deficient.

V.     Decision

      The Agency's exceptions are denied.


Appendix

Article 24, Section 2A.1.

Overtime will be distributed equitably s [sic] possible among qualified employees. When overtime becomes available, the Employer will contact the impacted chapter to discuss equitable distribution. Local negotiations concerning the matter will be in accordance with Article 47.

Article 24, Section 2A.2.

First consideration for overtime will be given to those employees who are permanently assigned to the job.

Article 41, Section 6A.

Except as provided in other provisions of this agreement, grievances will not be considered unless they are filed with the Employer within fifteen (15) workdays after the incident which gives rise to the grievance or within fifteen (15) workdays after the aggrieved became aware of the matters out of which the grievance arose.

Award at 7, 8, 5.



Footnote # 1 for 60 FLRA No. 75 - Authority's Decision

   Pertinent portions of these Articles are set forth in the appendix at the end of this decision.


Footnote # 2 for 60 FLRA No. 75 - Authority's Decision

   However, the Agency does concede