United States, Department of Homeland Security, United States, Immigration and Customs Enforcement (Agency) and American Federation of Government Employees, National Immigration and Naturalization Service Council, Local 1917, (Union)

[ v61 p503 ]

61 FLRA No. 94



LOCAL 1917




February 10, 2006


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 Roger E. Maher 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 Arbitrator found that the grievance was arbitrable and that no just cause existed for the grievant's seven-day suspension. The Arbitrator awarded the grievant back pay and ordered the Agency to expunge the suspension from his personnel file. For the reasons set forth below, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      In 1998, the Union filed a grievance over the grievant's seven-day suspension. See Award at 2. At that time, the Union submitted the grievance to arbitration and received a list of arbitrators from the Federal Mediation and Conciliation Service (FMCS), but the grievance was not arbitrated. See id. at 2; Exceptions, Attachment 4 at 1. In 2004, pursuant to a provision of the parties' 1997 collective bargaining agreement (the 1997 agreement), the FMCS designated the Arbitrator to resolve the grievance. [n1]  See Award at 2. Prior to the arbitration hearing, the Agency informed the Arbitrator and the Union that it would not attend the hearing. In this regard, the Agency asserted that the FMCS lacked jurisdiction to appoint the Arbitrator because the parties had renegotiated their agreement in 2000 (the 2000 agreement) and had agreed to establish a permanent list of arbitrators rather than refer each case to FMCS. [n2]  See Award at 3; Exceptions, Attachment 5 at 18. The Agency also asserted that any decision rendered by the Arbitrator would be improper because he lacked jurisdiction to resolve the grievance. See id. The Arbitrator informed the Agency that it should present its claim concerning arbitrability at the hearing and that its failure to appear at the hearing "may result in [the] [a]rbitrator rendering a default award" in the Union's favor. Id. at 15. The Arbitrator proceeded with the hearing without the Agency present.

      The Arbitrator did not specifically state the issue to be resolved, but he found that the arbitration resulted from the Union's claim that the Agency violated the 1997 agreement -- the agreement in effect at the time of the grievant's suspension -- by suspending the grievant for seven days. The Arbitrator noted that, as the Agency failed to appear at the hearing, he did not have the benefit of the Agency's "position, exhibits, and testimony as to the issue of arbitrability and the merits of the suspension" and that the "only testimony and evidence [adduced] at the arbitration hearing was [from] the Union." Award at 5. With regard to the arbitrability of the grievance, the Arbitrator found that the "grievance . . . is arbitrable and properly before this designated arbitrator for determination." Id. at 6. In reaching this determination, the Arbitrator relied on prior arbitration awards and an Authority decision finding similar grievances involving the Agency and the Union to be arbitrable, notwithstanding the delay in actually arbitrating the grievance. The Arbitrator also found credible the [ v61 p504 ] Union's claims that the prior awards and the parties' past practice established that the 1997 agreement was the controlling agreement and, thus, the FMCS was authorized to appoint the Arbitrator.

      The Arbitrator further found that the Agency failed to establish that just cause existed for the grievant's seven-day suspension. [n3]  As a remedy, he awarded the grievant back pay and ordered the Agency to expunge the suspension from the grievant's personnel file. The Arbitrator also ordered the parties to share the arbitration costs.

III.     Positions of the Parties

A.      Agency's Exceptions

      Relying on the Authority's decision in Equal Employment Opportunity Comm'n, 53 FLRA 465 (1997) (EEOC), the Agency claims that the award is contrary to law and that the Arbitrator exceeded his authority. See Exceptions at 3, 5-8. In this regard, the Agency asserts that the 2000 agreement did not authorize the FMCS to appoint the Arbitrator to resolve the grievance and also asserts that the Arbitrator improperly resolved whether he was validly selected to resolve the grievance. See id. at 7. Applying the principles set forth in EEOC, the Agency contends that the 2000 agreement "does not clearly and unmistakably provide that questions concerning the selection of an arbitrator are arbitrable" and, thus, asserts that the Authority must review de novo whether the Arbitrator was properly selected under the parties' agreement. Id. at 6. Specifically, the Agency contends that, under the 2000 agreement, arbitrators are selected by the parties from three regional panels of arbitrators, not by the FMCS, and that, although the 2000 agreement provides that arbitrators are to decide arbitrability matters, it does not "clearly and unmistakably provide that the arbitrator selection procedure is subject to an arbitrability decision by an arbitrator." Id.

      The Agency also claims that the award fails to draw its essence from the parties' agreement because the Arbitrator's finding that the parties' agreement authorized the Arbitrator's appointment by the FMCS from a unilateral request by the Union is inconsistent with Article 48 of the 2000 agreement. Exceptions at 9. In this connection, the Agency claims that the Union's unilateral request that the FMCS appoint an arbitrator was based on the 1997 agreement, which was superseded by the 2000 agreement, and that the 2000 agreement does not authorize the FMCS to appoint an arbitrator based on a unilateral request. See id.

B.      Union's Opposition

      The Union contends that the Authority should deny the exceptions because the Agency failed to attend the arbitration hearing and, thus, is prohibited from raising new issues for the first time before the Authority. See Opposition at 1. In addition, the Union asserts that the award is "founded in reason and based on the agreement between the parties." Id. at 3. The Union further asserts that, contrary to the Agency's claim, the Arbitrator was properly appointed by the FMCS under the 1997 agreement. The Union contends that the Agency's claim that the Arbitrator was improperly selected is "disingenuous" because there was a past practice of using the 1997 agreement in this circumstance and because the Agency refused to select an arbitrator under either the 1997 or 2000 agreement. Id.

IV.     Analysis and Conclusions

A.      Whether the exceptions are barred under § 2429.5 of the
          Authority's Regulations.

      The Union asserts that the Agency failed to attend the arbitration hearing and, thus, is prohibited from raising new issues for the first time before the Authority. See Opposition at 1. Section 2429.5 of the Authority's Regulations provides that the Authority will not consider any issue that was not presented in the proceedings before the arbitrator. However, the record demonstrates that the Agency challenged the FMCS' authority, under the 1997 agreement, to appoint the Arbitrator and the Arbitrator's jurisdiction to resolve the grievance. See Exceptions, Attachment 5, March 7, 2005 letter to Arbitrator; see also Award at 2-3. As the issue of FMCS' authority to appoint the Arbitrator and the Arbitrator's jurisdiction to resolve the grievance were raised below, we find that the Authority is not barred from considering the exceptions under § 2429.5 of the Authority's Regulations. See United States Dep't of Veterans Affairs, Med. Ctr., Charleston, S.C., 58 FLRA 706, 708 (2003) (Chairman Cabaniss concurring on other grounds).

B.      Whether the Arbitrator erred in determining that he had
          the authority to resolve the grievance.

      Relying on EEOC, the Agency challenges the Arbitrator's authority to determine whether he was properly selected to resolve the grievance. See Exceptions at 5-8. According to the Agency, the Authority [ v61 p505 ] must review de novo whether the Arbitrator had the authority to make such a determination. See id. at 6.

      In EEOC, the Authority noted that, in deciding whether to apply the de novo or "essence" standard to an arbitrator's determination concerning his or her selection, the Supreme Court examines how the parties wanted the matter resolved. The Authority stated, in this regard, that the Court asks "who" -- court or arbitrator -- "has the primary power to decide" the matter. EEOC, 53 FLRA at 477 (citing First Options of Chi., Inc. v. Kaplan, 115 S. Ct. 1920, 1923 (1995) (Kaplan)). Summarizing Supreme Court precedent, the Authority stated:

If the parties agreed to submit the particular matter to arbitration, then the court's standard for reviewing the arbitrator's decision about that matter should not differ from the standard courts apply when they review any other matter that parties have agreed to arbitrate -- that is, the deferential "essence" standard . . . . If, on the other hand, . . . it was not established that a party agreed to submit a question to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely independently -- employing a de novo standard.

Id. at 477 (internal quotes omitted).

      Here, the determination of whether the Arbitrator had the authority to hear the grievance turns on whether the parties' 1997 or 2000 agreement applies to the arbitral selection process. Nothing in either of these agreements indicates that the parties agreed to submit to arbitration questions concerning which arbitral selection process would apply to grievances filed under the 1997 contract and arbitrated after the effective date of the 2000 contract. Applying EEOC, we thus review this issue de novo[n4]  That is, because the question of which contract applies determines whether the Arbitrator was properly selected and because neither contract evidences the parties' agreement to submit that question to arbitration, we do not apply the essence standard to determine which contract applies. But see United States Dep't of the Treasury, Internal Revenue Serv., Kan. City Field Compliance Serv., 60 FLRA 401, 403 (2004) (Authority applied essence standard to determine which contract applied).

      Turning to the question of which contract applies, we note first that the events giving rise to the grievance occurred during the life of the 1997 agreement, the grievance at issue was filed under the 1997 agreement, and arbitration was invoked under the 1997 agreement. Moreover, the parties requested and received a panel of arbitrators to resolve this grievance from FMCS under Article 48 of the 1997 agreement. See Exceptions, Attachment 4 at 1. Although the Union did not demand that the Agency participate in selection of an arbitrator until after the 1997 agreement expired, there is no authority for a general conclusion that the expiration of the 1997 agreement, standing alone, precluded its application thereafter. In fact, there is clear authority to the contrary where the parties intend the agreement to apply past its expiration. See Cincinnati Typographical Union No. 3 v. Gannett Satellite Information Network, Inc., 17 F.3d 906, 909 (6th Cir. 1994) (citation omitted) ("the fact that a collective bargaining agreement has expired does not mean that arbitration can no longer occur under it" if the parties so intended) (emphasis in original). In fact, such arbitration extends, in some cases, to arbitration of grievances filed after expiration of an agreement. See Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO, 430 U.S. 243, 250-52 (1977) (Court held that grievance over severance pay filed after expiration of collective bargaining agreement was arbitrable where parties did not intend their arbitration duties to end with the expiration of the agreement); see also John Wiley & Sons v. Livingston, 376 U.S. 543, 555 (1964) (Court found "no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired.").

      In addition, the Arbitrator found that using the arbitral selection procedures of the 1997 agreement is consistent with the parties' past practice. See Award at 4-5. The Agency does not except to this finding, which was based on the Union's claim below. The Union renews the claim in its opposition, relying on the same awards relied on by the Arbitrator. See Opposition at 1-2; Opposition, Attachments, AFGE, Local 1917, FMCS No. 98-04971-2 (February 21, 2002) (Ellenberg, Arb.) (Ellenberg Award); AFGE, Local 1917, FMCS No. 03-08487 (June 27, 2004) (Fuqua, Arb.) (Fuqua Award), exceptions denied, United States Dep't of Homeland Sec., Customs & Border Prot. Agency, New York, N.Y., 60 FLRA 813 (2005) (Dep't of Homeland Sec.). Both awards reflect [ v61 p506 ] that the parties used the 1997 agreement to select arbitrators in situations where the grievance was filed, and the arbitration panel selected, prior to the effective date of the 2000 agreement. See Ellenberg Award at 1, 9; Fuqua Award at 2, 3, 6, 7.

      Despite the foregoing, the Agency asserts that the 2000 agreement governs selection procedures for arbitration of this grievance. In so asserting, the Agency relies solely on the fact that the 2000 agreement provides that it "supersedes" the 1997 agreement. [n5]  It is only logical, in our view, that a subsequent contract "supersedes" a prior one. This does not assist in resolving the question before us, however, especially since there is no claim that the parties specifically agreed that use of the word "supersede" would encompass the issue of arbitrator selection in the circumstances of this case.

      Based on the foregoing, we conclude that the use of the term "supersede" in the 2000 agreement is insufficient to overcome: (1) the fact that all (but one) actions involving the filing and processing of the grievance occurred under the 1997 agreement; and (2) the parties' undisputed practice of using the 1997 agreement procedures to select arbitrators