American Federation of Government Employees, Local 171, Council of Prison Locals 33 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK (Agency)

[ v61 p661 ]

61 FLRA No. 133

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 171
COUNCIL OF PRISON LOCALS 33
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL TRANSFER CENTER
OKLAHOMA CITY, OKLAHOMA
(Agency)

0-AR-4008

_____

DECISION

August 21, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Rex H. Wiant 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 dismissed the Union's grievance with prejudice because, at the arbitration hearing, the Union stated that it was not prepared to proceed on the merits. For the following reasons, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The Union filed a group grievance on behalf of all bargaining unit employees. The grievance alleged that the Agency violated the parties' master collective bargaining agreement and the Statute by failing to bargain over the impact and implementation of a memorandum issued by the Agency concerning initiatives to reduce overtime. Exceptions, Attachment 3. The Agency denied the grievance and the matter was submitted to arbitration.

      At the arbitration hearing, the Union raised two threshold issues to the Arbitrator. First, the Union requested to name a particular individual as the representative of the class of grievants on whose behalf the Union filed the grievance. See Exceptions, Attachment 4 at 4-5. The Arbitrator denied the Union's request and ruled that the Union President, who was the Union official who had prepared the grievance and was representing the Union at the hearing, would be "the grievant in this case." Id., Attachment 4 at 6. The Union objected to the Arbitrator's ruling. See id. at 7.

      Second, the Union stated that it was unprepared to proceed with the merits of its case because the Union officials who prepared the grievance had not been provided sufficient official time by the Agency to prepare for the arbitration hearing. See id. at 8, 11-12, 15. In this regard, the Union stated that it had requested 48 hours of official time, but the Agency had granted it only 24 hours of official time. Id. The Arbitrator ruled that the Agency had authorized "enough" official time for the Union to prepare the case. Id. at 10-11. The Arbitrator also stated that the Union's concerns regarding the lack of official time could be raised in a grievance or in a charge with the FLRA. Id. at 12. The Arbitrator further stated that "[t]he fact that you have an official time complaint does not eliminate your responsibility to hear and present a grievance to me today." Id. at 15.

      As the Union declined to proceed on the merits, the Arbitrator ruled as follows:

The Union refuses to go forward with the scheduled hearing[.] [T]herefore[,] the Arbitrator issues a directed award for the Employer. All costs are to be paid by the Union.
The grievance is DISMISSED WITH PREJUDICE.

Award at 1.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator erred by denying the Union's request to name a particular individual as the representative of the class of grievants on whose behalf the grievance was filed. The Union alleges that, by ruling that the Union President would be designated as the representative of the group, the Arbitrator "prejudiced the Union and put [the Union President] in [the] undeniable position of the advocate having to serve as a witness in his own case." Exceptions at 2 (citations omitted). [ v61 p662 ]

      Further, the Union contends that the Arbitrator erred in ruling that the Union's official time dispute was not sufficient to delay the hearing. The Union states that, consistent with § 7131 of the Statute, the parties' master agreement provides the Union official time to prepare and to present arbitration cases. See id. at 2-3. The Union contends that management cannot deny official time for representational activities, unless it can show that the use of official time will interfere with the accomplishment of agency work. The Union asserts that the Arbitrator applied an incorrect standard when he ruled, based on his experience, that 24 hours was ample official time for the Union to prepare for the hearing. Id.

      Finally, the Union contends that the Arbitrator misinterpreted Article 32, Section d of the parties' master agreement when he ordered the Union to pay all costs associated with the arbitration. [*]  See id. at 3. According to the Union, this portion of the award fails to draw its essence from the agreement because the agreement directs each party to pay one-half of the respective costs associated with arbitration. See id.

B.      Agency's Opposition

      The Agency contends that the Arbitrator's procedural arbitrability determination does not provide a basis upon which to find the award deficient. The Agency asserts the Arbitrator's determination that the Union official who had prepared the grievance should be designated as the representative of the class of grievants constituted a procedural arbitrability determination that was within his authority to make. See Opposition at 6 n.1.

      Further, the Agency contends that the Arbitrator did not deny the Union a fair hearing. According to the Agency, the Arbitrator was "fully prepared to allow the Union to put on a case on the merits[,]" but the Union was unprepared to proceed on the merits. Id. The Agency argues that the Union's fair hearing claim is an "unsubstantiated allegation[]" and provides no basis for finding that the Arbitrator denied the Union a fair hearing. See id. (citation omitted).

      Finally, as to the Union's allegation that the Arbitrator misinterpreted Article 32, Section d of the parties' master agreement when he ordered the Union to pay all costs associated with the arbitration, the Agency argues that the dispute over fees has been rendered moot. Id. at 4. In this regard, the Agency states that it has forwarded to the Arbitrator payment of one-half of the Arbitrator's fees, even though the award did not require it to make such a payment to the Arbitrator.

IV.      Analysis and Conclusions

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

      The Union's contention that the Arbitrator erred by denying the Union's request to name a particular individual as the representative of the class of grievants on whose behalf the grievance was filed constitutes a challenge to the Arbitrator's resolution of a procedural arbitrability issue. The question of the designation of an individual as a representative grievant arose at the arbitration hearing and is a procedural matter. See Commander, Carswell Air Force Base, Tex., 31 FLRA 620, 630 (1988).

      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 Union's contention that the Arbitrator erred by denying the Union's request to name a particular individual as the representative of the class of grievants on whose behalf the grievance was filed directly challenges the Arbitrator's determination of a procedural matter that grew out of the dispute. See, e.g., 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."). Therefore, consistent with precedent, we deny this exception. See, e.g., United States [ v61 p663 ] Dep't of the Treasury, Internal Revenue Service, Austin, Texas, 60 FLRA 360, 361-62 (2004).

B.      The Arbitrator Did Not Fail to Conduct 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). Further, Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. See id. at 109.

      We construe the Unions contention that the Arbitrator improperly precluded the Union President from designating a different Union representative at the hearing as a claim that the Arbitrator failed to conduct a fair hearing. However, the basis for the Arbitrator's dismissal of the grievance was the Union's refusal to proceed with the hearing because it was not prepared to do so in light of the Agency's refusal to grant it all of the official time that it had requested. The fact that the Arbitrator did not grant the Union's request to designate a specific individual requested by the Union as the representative of the class of grievants did not affect the Union's presentation of testimony. To the contrary, the Union declined to present its case in full because of its view that it was not prepared to do so. In these circumstances, the Union has not shown that the Arbitrator refused to hear or consider pertinent and material evidence, or took other actions in conducting the proceeding that prejudiced the Union so as to affect the fairness of the proceeding as a whole.

      We also construe as a fair hearing claim the Union's contention that the Arbitrator erred in ruling that the Union's official time dispute was not sufficient to delay the hearing. The Arbitrator did not resolve an official time dispute under the Statute or the parties' agreement. To the contrary, the Arbitrator expressly refused to do so, stating that the Union should either file a grievance over the official time matter or file a complaint with the FLRA. See Exceptions, Attachment 4 at 12. The Arbitrator ruled only that the Union's official time claim was not sufficient to delay the hearing. In these circumstances, the Union has not shown that the Arbitrator refused to hear or consider pertinent and material evidence, or took other actions in conducting the proceeding that prejudiced the Union so as to affect the fairness of the proceeding as a whole.

      Therefore, the Union has not established that this exception provides a basis for finding the award deficient.

C.      The Remaining Exception is Moot

      An arbitration matter becomes moot when the parties no longer have a legally cognizable interest in the dispute. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 59 FLRA 787, 790 (2004).

      The Union contends that the Arbitrator misinterprete