United States, Department of Homeland Security, Customs and Border Protection Agency, New York, New York (Agency) and American Federation of Government Employees, Local 1917 (Union)

[ v60 p813 ]

60 FLRA No. 153

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
CUSTOMS AND BORDER
PROTECTION AGENCY
NEW YORK, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)

0-AR-3865

_____

DECISION

March 31, 2005

_____

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 two awards (the merits award and the attorney fee award, respectively) of Arbitrator JoAnn Fuqua 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 to the merits award, but did not file an opposition to the Agency's exceptions to the attorney fee award. Case Nos. 0-AR-3865 and 0-AR-3865-ATTY are combined in this consolidated decision because both cases involve the same parties and arise from the same grievance arbitration proceeding.

      In the merits award, the Arbitrator found that the Agency violated the parties' agreement by suspending the grievant for 10 days without just and sufficient cause and awarded backpay. Subsequently, the Arbitrator awarded the Union attorney fees. For the following reasons, we deny the Agency's exceptions to the merits award and remand the award of attorney fees to the parties for resubmission to the Arbitrator, absent settlement, to clarify the basis of the award.

II.      Background and Arbitrator's Awards

      In 1998, the grievant, an immigration inspector, was suspended for 10 days for placing a certain notation on a passenger's passport and for allegedly being "rude and disrespectful" to two passengers, an airline agent, and her supervisor. Merits Award at 3-4. A grievance was filed over the suspension, but it was not resolved. Five years later, an arbitration hearing was held on the following stipulated issues: "Is the grievance arbitrable? If so, was the ten-day suspension of [the grievant] for just and sufficient cause and to promote the efficiency of the service? If not, what shall be the remedy?" Id. at 2.

      Initially, the Arbitrator found that the grievance was arbitrable. In reaching this conclusion, the Arbitrator rejected the Agency's claim that the grievance had been closed in 1999, consistent with the parties' past practice of closing cases after one year of inactivity. The Arbitrator found no past practice of closing cases in this manner because there was no "mutuality of assent between the parties . . . ." Id. at 7. According to the Arbitrator, when a party "refuses to participate in the selection of an arbitrator," Article 48(3) of the parties' agreement empowers the Federal Mediation and Conciliation Services (FMCS) "to make a direct designation of an arbitrator to hear the case[.]" Id. Thus, the Arbitrator found that "[t]he Agency's remedy is not to unilaterally close out a case, but rather, to turn to Article 48(3)." Id.

      On the merits, the Arbitrator found that the Agency did not meet its burden of proving that it had just and sufficient cause to discipline the grievant. As to the alleged improper notation, the Arbitrator found that the Agency offered no evidence to show that such notations are prohibited, and she rejected the Agency witness' testimony on this issue. The Arbitrator credited the Union witness' testimony that "such notations are commonly made by inspectors throughout the country . . . ." Id. at 8. As to the grievant's alleged rude and disrespectful behavior towards two passengers and an airline agent, the Arbitrator found no evidence supporting these charges. In this regard, noting that these complaining parties did not appear to testify in the case, the Arbitrator concluded that "[t]here was no credible evidence offered to support these charges." Id. Finally, as to the grievant's alleged disrespectful behavior towards her supervisor, the Arbitrator acknowledged testimony that the grievant and her supervisor "had words" regarding whether the supervisor singled out the grievant for an assignment, and that the grievant "said some things that hurt [the supervisor's] feelings." Id. However, because the grievant went to her assigned position, as the supervisor had instructed, the Arbitrator concluded [ v60 p814 ] that there was "no evidence in this record to support the ten-day suspension without pay . . . ." Id. Therefore, she awarded the grievant backpay for the 10-day suspension.

      Subsequently, the Union filed an application for attorney fees, which the Arbitrator granted. The Arbitrator's attorney fee award states in its entirety:

Having considered the arguments of the parties, I find that attorney's fees are warranted in the interest of justice. The application for attorney's fees is granted. The Agency is directed to pay [the Union's attorney] the amount of $13,217.25.

Attorney Fee Award at 1.

III.      Positions of the Parties

A.      Agency's Exceptions

1.      Merits Award

      With respect to the merits award, the Agency argues that the Arbitrator's arbitrability determination is based on nonfacts because the Arbitrator incorrectly found that the parties did not mutually assent to the practice of dismissing grievances after one year of inactivity. The Agency also disputes the Arbitrator's factual finding that the Union objected to the alleged practice. According to the Agency, the Arbitrator also incorrectly found that the Agency refused to participate in the process of selecting an arbitrator.

      The Agency further argues that the Arbitrator's arbitrability determination does not draw its essence from the parties' agreement. In this regard, the Agency asserts that the Arbitrator did not consider Article 48(A)(2), which requires the parties to select an arbitrator from the FMCS list within 10 days of receiving the list. The Agency also claims the Arbitrator did not consider Article (5)(E), which provides that the parties' agreement does not "abolish . . . any national, local or regional understandings or agreements, which have been mutually acceptable" at the appropriate level, such as the parties' "region wide . . . closeout past practice." Exceptions to Merits Award at 8-9.

      The Agency also disputes the Arbitrator's arbitrability determination on exceeded authority and fair hearing grounds. The Agency argues that the Arbitrator failed to address its argument that the grievance was barred under the doctrine of laches. In this regard, the Agency claims that, because of "the union's delay in moving the case forward to arbitration[,]" it could not locate witnesses to testify about the charges against the grievant. Id. at 13. The Agency also argues that the Arbitrator improperly "refus[ed] to allow the testimony of an Agency witness with information relevant to the regional closeout past practice." Id. at 19.

      The Agency claims the award is based on a nonfact because the Arbitrator mistakenly found that the Agency "offered no evidence to show that" the notations the grievant placed on the passenger's passport "are prohibited." Id. at 7. In this regard, the Agency asserts that the Arbitrator "did not consider both documentary and testimonial evidence in the record." Id. With respect to documentary evidence, the Agency claims that Agency Exhibit 2 shows that such notations are prohibited. Id. With respect to testimony, the Agency claims that its witness testified that such notations are prohibited and the grievant admitted that "she knew that she was not allowed to put such notations in passports[.]" Id. at 8. The Agency also disputes as a nonfact the Arbitrator's finding that the Agency did not demonstrate that discipline was warranted for the grievant's conduct towards her supervisor. In this regard, the Agency claims that the Arbitrator's findings that the grievant "had words" with her supervisor, "was upset, and said some things that hurt [his] feelings" proves "the essence of the Agency's charge" against the grievant. Id.

      The Agency also claims that the merits award fails to draw its essence from the just cause provision of the parties' agreement. [n1]  The Agency relies on United States Dep't of Justice, INS, Del Rio Border Patrol Sector, 45 FLRA 926 (1992) (Del Rio), where the Authority overturned an award setting aside a grievant's suspension, and asserts that "[t]he Arbitrator's findings . . . were tantamount to a conclusion [that] there was just and sufficient cause to sustain th[e] charges" against the grievant. Exceptions to Merits Award at 16.

      The Agency argues that it was denied a fair hearing on the merits because the Arbitrator refused to allow "evidence bearing on the truthfulness and credibility of" the grievant. Id. at 16. According to the Agency, given the grievant's "contradictory testimony . . . regarding the disciplinary charges, the Agency rightfully should have been allowed to introduce impeachment evidence [ v60 p815 ] as to her truthfulness." Id. at 19 (citing United States Dep't of the Air Force, Hill Air Force Base, Utah, 39 FLRA 103 (1991) (Hill AFB)). In addition, the Agency claims that, because of "the [U]nion's delay in moving the case forward to arbitration[,]" it could not locate witnesses to testify about the charges against the grievant and, therefore, its case was "materially prejudiced[.]" Id. at 13.

2.      Attorney Fee Award

      The Agency asserts that the Arbitrator lacked jurisdiction to award attorney fees because the merits award is not final and binding while exceptions are pending before the Authority. In this connection, the Agency argues that the award is based on a nonfact in that "the central fact needed for the Arbitrator to issue" the attorney fee award, "namely a final and binding arbitration decision, was not present." Exceptions to the Attorney Fee Award at 4. The Agency also argues that the award fails to draw its essence from the parties' agreement because both parties agreed, and advised the Arbitrator, that the Arbitrator lacks jurisdiction to issue the attorney fee award while exceptions to the merits award are pending before the Authority. Finally, in this regard, the Agency claims the award violates the Back Pay Act because no "decision by an appropriate authority which is final and binding" has been issued finding that "an unjustified personnel action occurred." Id. at 6.

      The Agency also excepts to the attorney fee award on the grounds that the Arbitrator "failed to issue a reasoned award." Id. at 7. In this regard, the Agency asserts that the Arbitrator was required to make "specific findings as to how the statutory requirements for fee entitlement are met, as well as the reasonableness of the fees requested." Id. Moreover, the Agency asserts that "the record is insufficient for the Authority to resolve the [parties'] dispute over entitlement and reasonableness of attorney fees . . . ." Id. Therefore, the Agency requests that the award be remanded to the Arbitrator.

B.      Union's Opposition

1.      Merits Award

      The Union disputes the Agency's exceptions to the Arbitrator's arbitrability determination. Specifically, as to the Agency's nonfact claim, the Union asserts that the Arbitrator "properly concluded that there was no mutuality of [as]sent to establish a past practice." Opposition at 1. As to the Agency's essence claim, the Union asserts that the Arbitrator correctly interpreted and applied Article 48(3) of the parties' agreement. The Union also asserts that "the doctrine of laches has nothing to do with the essence" of the parties' agreement. Id. at 2-3. Finally, the Union asserts that the Agency was not denied a fair hearing because, even though a certain witness was not allowed to testify about the past practice, "another [Agency] witness . . . gave testimony on that issue." Id. at 3.

      As to the merits award, the Union asserts that the Arbitrator's "dismissal of the charges" is not based on nonfacts. Id. at 1. The Union also asserts that "[t]he Arbitrator did not refuse to hear pertinent and material evidence." Id. at 3. In this regard, the Union asserts that, although the Arbitrator would not allow impeachment evidence concerning events that happened well after the alleged offenses, the Agency was allowed to impeach the grievant's testimony in other ways.

2.      Attorney Fee Award

      The Union did not file an opposition to the Agency's exceptions to the attorney fee award.

IV.      Analysis and Conclusions

A.      Merits Award

1.      The Arbitrator's Procedural Arbitrability Determination Is Not Deficient

      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). 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 AFGE Local 2921, 50 FLRA 184, 185-86 (1995)).

      The Agency's arguments that the Arbitrator's procedural arbitrability determination is based on nonfacts and fails to draw its essence from the parties' agreement directly challenge the Arbitrator's procedural arbitrability determination. As such, they provide no basis for finding the award deficient. See, e.g., AFGE, Local 2172, 57 FLRA 625, 627 (2001). The Agency's claims that the Arbitrator exceeded her authority by not considering whether the grievance was barred under the doctrine [ v60 p816 ] of laches and failed to conduct a fair hearing are addressed below.

      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). The Arbitrator in this case did not fail to resolve an issue submitted to her. The stipulated issue before the Arbitrator was whether the grievance was arbitrable, and the Arbitrator found that it was. Because the parties' stipulated issue did not specifically include a question of whether the doctrine of laches bars the grievance, the Arbitrator was not required to specifically address that issue. In this regard, Authority precedent does not require arbitrators to address every argument raised by parties. See, e.g., NFFE, Local 259, 45 FLRA 773 (1992) (after finding that grievant was properly rated, arbitrator was not required to address specifically every argument that the agency violated the parties' agreement). Consequently, the Agency has not demonstrated that the Arbitrator exceeded her authority.

      The Authority will find an award deficient on fair hearing grounds 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. See United States Dep't of Defense, Dependents Sch., 55 FLRA 1108, 1110 (1999) (DODS). However, an arbitrator has considerable latitude in conducting a hearing, and the fact that an arbitrator does so in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See United States Dep't of Defense, Defense Mapping Agency, Hydrographic/Topographic Ctr., 44 FLRA 103, 108-09 (1992). The Agency claims it was denied a fair hearing because a certain witness was not allowed to testify about the parties' alleged past practice. However, the Union asserts, and the record shows, that a different witness for the Agency was allowed to testify about the parties' alleged past practice. See Tr. at 21. In these circumstances, the Agency has not shown that it was prejudiced by the Arbitrator's refusal to allow the witness to testify and, as a result, has not shown that the Arbitrator failed to conduct a fair hearing.

      Based on the foregoing, we conclude that the Arbitrator's procedural arbitrability determination is not deficient. [n2] 

2.      The Award Is Not Based On a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. The Agency disputes as nonfacts the Arbitrator's finding that the Agency did not have a policy prohibiting the notation that the grievant placed on the passenger's passport and the Arbitrator's conclusion dismissing the charge concerning the incident between the grievant and her supervisor. However, these factual issues were disputed below. Therefore, they cannot be challenged as nonfacts, and we deny the Agency's nonfact exception.

3.      The Award Does Not Fail To Draw Its Essence From the Parties' Agreement

      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); AFGE, Council 220, 54 FLRA 156, 159 (1998). 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 Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      We reject the Agency's claim that, based on Del Rio, the award fails to draw its essence from the just cause provision of the parties' agreement. The Authority [ v60 p817 ] found that the award in Del Rio failed to draw its essence from the parties' agreement because the arbitrator made inconsistent findings that: (1) under the parties' agreement, the agency would have just cause to discipline the grievant if the grievant was responsible for the incident giving rise to his suspension; (2) the grievant was responsible for the incident; and (3) the agency did not have just cause to discipline the grievant. Here, the Arbitrator made no such inconsistent findings. Although the Arbitrator acknowledged that the grievant and her supervisor "had words," she did not find that the grievant's actions amounted to misconduct requiring discipline under the parties' agreement. Indeed, the Arbitrator clearly found that, because the grievant ultimately fulfilled her assignment as instructed, discipline was not warranted. Accordingly, the Agency has not established that the Arbitrator's interpretation of the parties' agreement is irrational, unfounded or implausible or that it evidences a manifest disregard of the parties' agreement, and we deny the Agency's exception.

4.      The Arbitrator Did Not Fail To Conduct a Fair Hearing

      As set forth above, an award will be found deficient on fair hearing grounds when a party demonstrates that an arbitrator refused to hear or consider pertinent or material evidence, or took other actions in conducting the hearing that prejudiced the party, so as to affect the fairness of the proceedings as a whole. See, e.g., DODS, 55 FLRA at 1110. In arguing that it was denied a fair hearing, the Agency asserts that the Union's delay in submitting the case to arbitration prevented it from producing pertinent witnesses. However, this argument relates to actions allegedly taken by the Union, not the Arbitrator. As such, the argument does not demonstrate that the Arbitrator took any action that prejudiced the Agency. Moreover, the record shows that the Arbitrator accepted in evidence letters from these witnesses. See Tr. at 77; see also Agency's Exh. 2. Consequently, the Agency has not shown that it was prejudiced by the Arbitrator's actions.

      Similarly, the Agency has not shown, as required by Hill AFB, that the Arbitrator's refusal to allow certain impeachment evidence affected the fairness of the proceeding as a whole. In Hill AFB, the Authority adopted private sector precedent holding that "the refusal to consider pertinent and material evidence must affect the fairness of the proceeding as a whole." Hill AFB, 39 FLRA at 106 (citing Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594 (3d Cir. 1968)). The Union claims, and portions of the testimony cited by the Agency show, that the Arbitrator disallowed impeachment evidence only with regard to events that occurred after the alleged offenses and that the Arbitrator allowed the Agency to impeach the grievant's testimony in other ways. See Opposition at 3; Exceptions to the Merits Award at 17-18. Moreover, the Arbitrator sustained the grievance because she found that the Agency did not meet its burden of showing that there was just and sufficient cause for discipline. Specifically, she found no evidence supporting the Agency's charges that the grievant made improper notations on the passenger's passport, that she was rude and disrespectful to passengers and an airline agent, or that she acted inappropriately with her supervisor. As such, the record does not demonstrate that the grievant's truthfulness was the basis of the Arbitrator's award sustaining the grievance. Consequently, the Agency has not demonstrated that it was prejudiced by the Arbitrator's refusal to hear certain impeachment evidence.

      Based on the foregoing, we deny the Agency's fair hearing exception.

B.      Attorney Fee Award

1.      The Arbitrator Did Not Lack Jurisdiction To Award Attorney Fees

      The premise of the Agency's nonfact, essence, and contrary to law exceptions to the attorney fee award is its claim that the Arbitrator lacked jurisdiction to issue the fee award while exceptions to the merits award are pending before the Authority. However, the Authority has long held that an arbitrator is not required to refrain from granting a request for attorney fees until after the Authority resolves any exceptions that may have been filed to the underlying award. See Dep't of Defense Dependents Schools, Pac. Region and Overseas Ed. Assoc., Pac. Region, 30 FLRA 1206, 1216 (1988), reconsideration granted as to other matters, 32 FLRA 757 (1988). Consistent with this precedent, there is no merit to the Agency's contention that the Arbitrator lacked jurisdiction to award attorney fees. As the premise of the Agency's nonfact, essence, and contrary to law exceptions is erroneous, the exceptions are without merit. Therefore, we deny these exceptions.

2.      The Award Is Remanded For Clarification

      When exceptions are filed to arbitration awards resolving requests for attorney fees, the Authority's role is to ensure that the arbitrator complies with applicable statutory standards. See, e.g., United States Dep't of the Navy Headquarters, Naval Dist., Wash., D.C., 48 FLRA 1264, 1266 (1993). The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified or unwarranted personnel [ v60 p818 ] action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See United States Dep't of Defense, Defense Distribution Region E. New Cumberland, Pa., 51 FLRA 155, 158 (1995). The Back Pay Act further requires that an award of fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g). See id. The prerequisites for an award of attorney fees under § 7701(g)(1) are: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. See id. In resolving a request for attorney fees under the Back Pay Act, arbitrators must set forth specific findings supporting determinations on each pertinent statutory requirement. See id.; see also United States Dep't of the Treasury, IRS, Phila. Serv. Ctr., Phila., Pa., 53 FLRA 1697, 1699 (1998) (Dep't of the Treasury).

      The Arbitrator's merits award finding that the Agency violated the parties' agreement by suspending the grievant for 10 days without just cause and awarding backpay satisfies the Act's threshold requirement for an awa