National Federation of Federal Employees, Local Lodge 2276, International Association of Machinists and Aerospace Workers (Union) and United States, Department of Agriculture, Forest Service, Forest Products Laboratory (Agency)

[ v61 p387 ]

61 FLRA No. 71

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL LODGE 2276
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
(Union)

and

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOREST SERVICE
FOREST PRODUCTS LABORATORY
(Agency)

0-AR-3958

_____

DECISION

November 15, 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 an award of Arbitrator Steven Briggs 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 denied a grievance, which alleged that the Agency violated a memorandum of agreement between the parties, and ordered the Union to pay the arbitration fees. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The parties negotiated a "Wellness and Fitness" memorandum of agreement, which permits employees to take up to three hours of administrative leave per week for exercise and health activities. Subsequent to implementation, the Agency issued a memorandum clarifying that the agreement did not permit employees to use the administrative leave for home-to-work and work-to-home fitness activities. The Union filed a grievance alleging that the Agency's clarification of the policy violated the parties' negotiated agreement. The parties were unable to resolve the grievance and it was submitted to arbitration. The arbitration process included a preliminary hearing before Arbitrator Newman on a procedural issue and a second hearing before Arbitrator Briggs on the merits of the grievance, which resulted in the award at issue.

      At the preliminary hearing, as relevant here, the parties stipulated that Arbitrator Newman should decide whether the Agency's response to the step-one grievance constituted a legitimate decision under Article 9 of the parties' agreement and, if not, then the parties agreed that the Agency would be liable for arbitral fees and expenses pursuant to Article 9, Section 9 (§ 9). [n1]  See Exceptions, Attachment F at 2. Arbitrator Newman determined that, under Article 9, Sections 6(f) and (g) of the parties' agreement, "some issues can only be resolved at the higher levels [of management]" and "that management is aware of these issues and has the responsibility to forward them to the lowest level deciding official with authority to resolve them[.]" Id. at 11. Arbitrator Newman found that the Agency official who made the grievance response was not the lowest level official with authority to resolve the grievance and, thus, found that the Agency violated Article 9, Section 6(f) of the parties' agreement (§ 6(f)). As such, Arbitrator Newman found that "the Agency shall be liable for the fees and expenses of the arbitrator in rendering this preliminary decision." Id. at 1-2, 15.

      At the arbitration hearing on the merits of the grievance, Arbitrator Briggs framed the issues to be: (1) Did the Agency violate the parties' negotiated "Wellness and Fitness Policy" by "prohibiting employees from taking administrative leave for their home-to-work and/or work-to-home commute when such travel involved wellness activities[;]" and (2) "If so, what is the appropriate remedy?" Award at 4. Arbitrator Briggs also stated that the parties stipulated that he should resolve the issue of "[h]ow shall the costs of arbitration specified in Article 10.5 of the Master Agreement [should] be allocated between the parties in these proceedings[.]" Id. at 4 & n.3.

      After determining that the Agency did not violate the parties' negotiated wellness and fitness policy, [n2] see id. at 17-20, Arbitrator Briggs addressed whether the Agency was responsible for the arbitration fees resulting from the merits arbitration. He determined that Arbitrator Newman found in her award that the Agency was [ v61 p388 ] liable for the "fees and expenses of the arbitrator in rendering [the] preliminary decision[,]" but "did not address the fees and expenses of the . . . Arbitrator in these separate proceedings on the merits of the grievance." Id. at 22. In addition, consistent with the Agency's claim, Arbitrator Briggs found that Arbitrator Newman made no determination regarding the timeliness of the Agency's grievance response under § 9, which states that the failure of the Agency "to meet time limits . . . shall result in the [Agency's] liability for the arbitrator's fees and expenses, unless mitigating circumstances prevail." Exceptions, Attachment A at 31 (Collective Bargaining Agreement); see Award at 17, 22. Rather, according to Arbitrator Briggs, Arbitrator Newman found that the Agency's grievance response did not comply with § 6(f). Id. In this regard, in her award, Arbitrator Newman found that the Agency's grievance response did not constitute a legitimate decision under § 6(f) because the grievance was not resolved by the appropriate Agency official and concluded, pursuant to the parties' stipulation, that the "Agency shall be liable for the fees and expenses of the arbitrator in rendering this preliminary decision." Exceptions, Attachment F at 15.

      With regard to the merits arbitration, Arbitrator Briggs determined that there was no evidence suggesting that "the Agency's response at any step of the grievance procedure was untimely" and found, therefore, that § 9 did not apply to the arbitration fees resulting from the merits arbitration. Id. He concluded that, pursuant to Article 10, Section 5(a) of the parties' agreement, the Union was the "losing party" and is responsible for the entire amount of the arbitration fees resulting from the merits arbitration. Id. at 23.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that Arbitrator Briggs exceeded his authority by addressing the arbitration fees issue. In this regard, the Union asserts that it did not stipulate that Arbitrator Briggs should decide the issue of arbitration fees or that he should clarify Arbitrator Newman's award concerning arbitration fees. See Exceptions at 6-8.

      The Union also claims that the award fails to draw its essence from the parties' agreement. Specifically, the Union asserts that Arbitrator Briggs' determination that the award of fees by Arbitrator Newman applied only to the Newman award "cannot in any rational way be derived from the agreement[.]" Id. at 13. According to the Union, the only "rational construction" of § 9 is that the "penalty" for noncompliance with the grievance procedure is that the Agency must pay the arbitration fees for the merits determination, not just the preliminary determination. Id. at 11. In addition, the Union asserts that Arbitrator Briggs' determination that Arbitrator Newman's award concerned only whether the Agency's grievance response complied with § 6(f), and not whether the response was timely, fails to draw its essence from Article 10, Section 7 of the parties' agreement. Further, the Union asserts that Arbitrator Briggs improperly clarified Arbitrator Newman's award because, under Article 10, Sections 5(b) and 12 of the parties' agreement, Arbitrator Newman is the "proper authority" to clarify her award. Id. at 14-15.

      The Union further claims that the award is based on nonfacts. Specifically, the Union asserts that Arbitrator Briggs incorrectly determined that Arbitrator Newman did not find that the grievance response was untimely. See id. at 17. According to the Union, but for Arbitrator Briggs' incorrect determination, he would have ordered the Agency to pay the arbitration fees for the merits arbitration. See id. at 18. The Union also asserts that Arbitrator Briggs erroneously found that Arbitrator Newman's determination that the Agency was responsible for arbitration fees applied only to the Newman award. In this connection, the Union contends that, before Arbitrator Newman, the parties stipulated that a ruling against the Agency would result in the Agency being liable for the arbitration fees for the merits arbitration. See id. at 18-20.

      In addition, the Union claims that Arbitrator Briggs failed to conduct a fair hearing because he disadvantaged the Union by permitting the Agency to raise the issue of arbitration fees for the first time at the arbitration hearing, he did not permit the Union to address the fees issue, and he did not accept documents submitted by the Union. See id. at 8-10.

B.      Agency's Opposition

      The Agency claims that the Authority should dismiss the Union's exceptions because the Union waived its right to file exceptions to the award. According to the Agency, the Union agreed that it would not file exceptions regarding the Arbitrator Briggs' decision on the issue of "whether employees may earn [w]ellness time that is concurrent with their commute to and/or from work." Opposition at 2.

      In addition, the Agency asserts that the Union's exceptions provide no basis for the Authority to set aside Arbitrator Briggs' award. Specifically, the Agency contends that Arbitrator Briggs resolved only the issues that were before him. See id. at 3. The [ v61 p389 ] Agency also contends that the Union was not "surprise[d] and disadvantage[d]" by Arbitrator Briggs' decision to consider the arbitration fees issue because it had "ample opportunity to brief the matter of the fees and expenses to be assessed by the arbitrator." Id.

IV.     Preliminary Matter

      Based on the Agency's claim that the Union waived its right to file exceptions, the Authority issued a Show Cause Order directing the Union to explain why its exceptions should not be dismissed. In response, the Union asserts that the agreement limiting its right to file exceptions to the Briggs' award was "carefully constructed" to apply only to the portion of the award concerning use of administrative leave for fitness activities and does not constitute a clear and unmistakable waiver of the Union's right to file an exception to the "part of Arbitrator Briggs' award dealing with payment of his fees." Union's Response to Show Cause Order at 2.

      It is well-established that waiver of a party's statutory right to file exceptions to an arbitrator's award under § 7122(a) of the Statute must be clear and unmistakable. See United States Equal Employment Opportunity Comm'n, Balt. Field Office, Balt., Md., 59 FLRA 688, 689-90 (2004) (EEOC). It is undisputed that, while Arbitrator Briggs' decision on the merits was pending, the parties agreed that:

neither party will file an exception with the FLRA concerning the decision by Arbitrator Briggs regarding whether employees may earn [w]ellness time that is concurrent with their commute to and/or from work. Upon receiving the decision by Mr. Briggs regarding this issue, both the [Union and Agency] will abide by his decision regarding wellness time and commute time.

Opposition at 2. This agreement clearly limits the parties' ability to file exceptions regarding the "issue" of whether employees may use administrative leave for home-to-work and work-to-home fitness activities. See id. However, the waiver is specific to that "issue" and does not clearly encompass other issues, such as the Union's right to file exceptions to the portion of the award resolving the arbitration fees issue. Accordingly, in the absence of a clear and unmistakable waiver concerning the issue excepted to by the Union, we deny the Agency's request to dismiss the Union's exceptions on that ground. See EEOC, 59 FLRA at 689-90; United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000).

V.     Analysis and Conclusions

A.      The Arbitrator did not exceed his authority.

      The Union asserts that Arbitrator Briggs exceeded his authority by resolving the arbitration fees issue because the Union did not stipulate that Arbitrator Briggs should either resolve this issue or clarify Arbitrator Newman's decision regarding the arbitration fees issue. See Exceptions at 6-8. 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 United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996) (AAFES).

      There is no dispute that Arbitrator Briggs properly framed the issues of whether the Agency violated the parties' negotiated fitness policy and, if so, what the appropriate remedy would be. See Award at 4. Arbitrator Briggs also set forth as an issue how the costs "of arbitration" should be allocated, stating that the parties stipulated that issue. Id. at 4 n.3. Even assuming, as the Union claims, that the parties did not stipulate that Arbitrator Briggs should decide how to allocate the arbitration costs between the parties or clarify Arbitrator Newman's award, that fact would not preclude Arbitrator Briggs from formulating that arbitral issue. See Exceptions at 7; AAFES, 51 FLRA at 1378. In this regard, it is well-established that, in the absence of a stipulation, the Authority will defer to an arbitrator's framing of the issue. See AFGE, Local 933, 58 FLRA 480, 482 (2003). Here, the Arbitrator stated that one of the issues raised by the case concerned how the arbitration costs would be allocated between the parties. See Award at 4. Arbitrator Briggs determined that the Union was the "losing party" and, under Article 10, Section 5 of the parties' agreement, is liable for the arbitration costs. Award at 23. Accordingly, the award is directly responsive to the stated issue as formulated by Arbitrator Briggs. See AFGE, Local 1741, 61 FLRA 118, 120 (2005). In these circumstances, the Union has failed to demonstrate that Arbitrator Briggs exceeded his authority. See id. Accordingly, we deny the exception.

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

      In order for an award to be 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; [ v61 p390 ] (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; and (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union claims that Arbitrator Briggs' finding that Arbitrator Newman's order that the Agency pay arbitration fees applied only to the Newman award is not based on a "rational construction" of § 9. Exceptions at 11. As relevant here, § 9 provides that the Agency's failure to meet grievance procedure time limits "shall result in the [Agency's] liability for the arbitrator's fees and expenses, unless mitigating circumstances prevail." Id., Attachment A at 31. The provision is not specific regarding whether the liability for arbitration fees and expenses relates to preliminary awards, merits awards, or both. Therefore, Arbitrator Briggs' conclusion that Arbitrator Newman's finding -- that the Agency was liable for the arbitration fees -- applied only to the fees resulting from the Newman award is not implausible, irrational, or unconnected to the wording of § 9. Accordingly, the Union's exception provides no basis for finding that the award fails to draw its essence from the parties' agreement. See AFGE, Local 3495, 60 FLRA 509, 511 (2004).

      The Union also claims that Arbitrator Briggs' determination that Arbitrator Newman's award concerned only whether the Agency's grievance response complied with § 6(f), and not whether the response was timely within the meaning of § 9, fails to draw its essence from Article 10, Section 7. See Exceptions at 14. In her award, Arbitrator Newman made no determination regarding the timeliness of the Agency's grievance response. Rather, she found that the Agency's grievance response did not constitute a legitimate decision under § 6(f) because the grievance was not resolved by the appropriate Agency official and concluded, pursuant to the parties' stipulation, that the "Agency shall be liable for the fees and expenses of the arbitrator in rendering this preliminary decision." Id., Attachment F at 15. As relevant here, Article 10, Section 7 provides that the arbitrator has the authority to make threshold grievability, arbitrability, and timeliness determinations. See id., Attachment A at 33. Nothing in that provision indicates that Arbitrator Briggs was prohibited from finding, as he did, that the Newman award concerned whether the Agency's grievance response complied with § 6(f), and not whether the response was timely within the meaning of § 9. As such, the Union has not demonstrated that the award fails to draw its essence from Article 10, Section 7.

      The Union further claims that Arbitrator Briggs improperly clarified Arbitrator Newman's award because, under Article 10, Sections 5(b) and 12 of the parties' agreement, Arbitrator Newman is the "proper authority" to clarify her award. Exceptions at 15. Contrary to the Union's claim, Arbitrator Briggs did not clarify Arbitrator Newman's award, or alter it in any way. Rather, he simply interpreted the award in response to the arguments made by the parties. See Award at 17; Exceptions, Attachment J at 14. As such, the Union's exception provides no basis for finding that award fails to draw its essence from Article 10, Sections 5(b) and 12 of the parties' agreement. See Panama Canal Comm'n, 56 FLRA 451, 459 (2000).

      Based on the foregoing, we deny the Union's essence exceptions.

C.      The award is not based on nonfacts.

      To establish that an award is deficient as based nonfacts, 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, 594 (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. See United States Dep't of Health & Human Servs., Denver, Colo., 56 FLRA 133, 135 (2000).

      The Union asserts that Arbitrator Briggs erroneously found that: (1) Arbitrator Newman did not make a determination regarding the timeliness of the Agency's grievance response, and that (2) Arbitrator Newman's determination that the Agency was responsible for arbitration fees did not apply to the merits arbitration. However, the Union disputed these factual matters before the Arbitrator. Specifically, the Union contended below that the parties understood that a determination by Arbitrator Newman that the Agency's grievance response was not a legitimate decision under the parties' agreement constituted a determination that the Agency's grievance response was not timely. See Exceptions, Attachment J at 13. In addition, the Union contended that the parties' stipulation before Arbitrator Newman established that the Agency was "responsible for the costs of the arbitration on the merits[.]" Id. at 14. As these factual matters were disputed below, they cannot be challenged as nonfacts. See United States Dep't of Homeland Sec., Customs & Border Prot. Agency, N.Y., [ v61 p391 ] N.Y., 60 FLRA 813, 816 (2005). Accordingly, we deny the Union's exceptions.

D.      The Arbitrator conducted a fair hearing.

      The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding prejudiced a party so as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995). 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. See United States Dep't of Def., Def. Mapping Agency, Hydrographic/ Topographic Ctr., 44 FLRA 103, 108-09 (1992).

      The Union claims that Arbitrator Briggs failed to conduct a fair hearing because the Union was "surprised and disadvantaged" by his decision to permit the Agency to raise the issue of arbitration fees for the first time at the hearing and because Arbitrator Briggs did not provide the Union with an opportunity to address the arbitration fees issue. Exceptions at 9. Contrary to the Union's claim, the Union was given an opportunity to address the arbitration fees issue. In this connection, the record establishes that Arbitrator Briggs considered the Union's post-hearing brief where the Union provided arguments supporting its claim that the arbitration fees issue was not properly before Arbitrator Briggs. See Award at 3; Exceptions, Attachment J at 13-14. Moreover, as set forth above, the Arbitrator stated that one of the issues raised by this case concerned how the arbitration fees should be allocated between the parties and, even assuming Arbitrator Briggs erroneously stated that the parties stipulated that he should decide the fee allocation issue, that would not render deficient Arbitrator Briggs' framing and resolution of the issue. See Award at 4. In these circumstances, there is no indication that Arbitrator Briggs' actions prejudiced the Union so as to affect the fairness of the proceeding as a whole. Accordingly, the Union has failed to establish that it was denied a fair hearing, and we deny the exception. See United States Envtl. Prot. Agency, Region 2, 59 FLRA 520, 526 (2003) (Member Pope dissenting on other grounds).

      The Union further claims that Arbitrator Briggs failed to conduct a fair hearing because he did not accept documents submitted by the Union, consisting of a statement of the stipulated issues before Arbitrator Newman and the Agency's brief to Arbitrator Newman. Contrary to the Union's claim, however, Arbitrator Briggs did not refuse to accept the documents submitted by the Union. Rather, he considered some of the documents submitted by the Union, such as copies of federal regulations and arbitration texts, but gave "no weight" to the statement of the stipulated issues before Arbitrator Newman and the Agency's brief to Arbitrator Newman. Id. at 10, 18. Accordingly, the Union's exception provides no basis for finding the award deficient. See United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1073 (2001) (exceptions contesting the weight an arbitrator accords to evidence presented by a party provides no basis for finding that the arbitrator failed to conduct a fair hearing). As such, we deny the exception.

VI.     Decision

      The Union's exceptions are denied.


APPENDIX

As relevant here, Article 9, Section 6(f) and (g) of the parties' agreement states:

f. [i]f at any step of the grievance procedure it is determined that the deciding official does not have the authority to resolve any of the issues being grieved that remain unresolved, the grievant will be informed and the grievance will be forwarded to the deciding official at the higher step of the process.
g. [i]n grievances where there are multiple issues that are resolved by deciding officials at different steps of the process, the grievance will be handled first by the lowest level deciding official with authority to resolve one or more issues. Any unresolved issues remaining after a decision is issued may be elevated to the next step of the process.

Exceptions, Attachment A at 29, 30 (Collective Bargaining Agreement).

Article 9, Section 9 of the parties' agreement states, in pertinent part:

Failure by the grievant to meet time limits, or to request and receive an extension of time, shall automatically cancel the grievance, unless mitigating circumstances prevail. Failure of the responding official to meet time limits, or to request and receive an extension of time, shall result in the responding Party's liability for the [ v61 p392 ] arbitrator's fees and expenses, unless mitigating circumstances prevail.

Id. at 31.

Article 10, Section 5(a) and (b) of the parties' agreement provides:

a. The cost of arbitration, including panel requests fees and arbitrator's fees and expenses, shall be borne by the losing Party. When a decision does not clearly favor one Party's position over the other, the arbitrator may specify that all costs should be borne equally by the Parties.
b. If a clarification of an arbitrator's decision is necessary, the requesting Party will pay for the additional arbitration fees and expenses. The arbitrator will be requested to complete the clarification within 30 days. If jointly requested, the costs will be shared.

Id. at 32.

Article 10, Section 7 of the parties' agreement states:

The arbitrator shall have the authority to make threshold determinations. Threshold questions shall be resolved by the arbitrator prior to the hearing on the merits of the grievance, unless otherwise agreed by the Parties. If requested by either Party, the threshold issue will be decided by an arbitrator different from the one selected to hear the meri