American Federation of Government Employees, Council of Prisons Locals, Local 3977 (Union) and United States , Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Seymour Johnson, North Carolina (Agency)

[ v62 p41 ]

62 FLRA No. 11

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISONS LOCALS
LOCAL 3977
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL PRISON CAMP
SEYMOUR JOHNSON, NORTH CAROLINA
(Agency)

0-AR-4111

_____

DECISION

March 22, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Louis M. Thomson, Jr., 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 Union filed a grievance alleging that certain unit employees were required to work late and that these employees were not compensated for overtime pursuant to the Portal-to-Portal Act, 29 U.S.C. § 254 (the Act). The Arbitrator found that the grievance was not procedurally arbitrable.

      For the reasons that follow, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that certain unit employees were not compensated for overtime pursuant to the requirements of the Act. The employees are covered by a collective bargaining agreement (CBA) between the Bureau of Prisons (BOP) and the Council of Prisons Locals, AFGE (National Union), which was extended until a new agreement is negotiated. The [ v62 p42 ] grievance was not resolved and the matter was submitted to arbitration.

      Before the Arbitrator, the Agency raised six procedural issues and requested a bifurcated hearing so that the Arbitrator could decide the procedural issues before addressing the merits of the grievance. The Agency initially raised five issues. However, at the arbitration hearing, the Agency raised an additional issue concerning whether there was any informal resolution of the grievance with the Agency official. See Transcript (Tr.) at 84-85. The Arbitrator granted the Agency's request to bifurcate the proceedings to address the procedural issues. The Arbitrator "acknowledge[ed] having received and read the . . . post-hearing briefs of the parties" and noted that he would "respond to their contentions in his discussion." Award at 11. The Arbitrator stated the issues to be arbitrated as follows:

1.     Did the Union comply with the provisions of the Agency's grievance form, Section 7? If not, are further proceedings in the matter barred?
2.      Did the Union comply with the provisions contained in Article 32, Section a?
3.      Was the Union specific in identifying the rules, regulation[s], and/or statute that was allegedly violated? If not, are further proceedings in the matter barred?
4.      Did the Union comply with the timeline requirements in Article 32, Section b? If not, are further proceeding[s] in this matter barred?
5.      Did the Union comply with the timeline requirement[s] in Article 32, Section b.3? If not, are further proceeding[s] in the matter barred?
6.      Did the Union comply with provisions contained within Article 31, Section b, of the [CBA] regarding informal resolution before filing a formal grievance? If not, are further proceeding[s] in this matter barred?

Award at 9-10. [*] 

      The Arbitrator determined that the most pertinent of the six issues was "whether the Union violated and did not follow . . . Article 31, Section b of the [CBA] regarding informal resolution before filing a formal grievance." Id. at 11. The Arbitrator found that record testimony established that the Union President "did not attempt to resolve the alleged violation with [the Human Resources Manager] prior to filing a formal grievance[,]" as required by Article 31, Section b. Id. at 13 (emphasis in Award). Interpreting Article 31, Section b, the Arbitrator found that this provision "mandates that the Union `will always attempt informal resolution at the lowest appropriate level before filing a formal grievance.'" Id. (emphasis in Award). Accordingly, the Arbitrator found that the Union did not comply with this provision and thus the grievance was not procedurally arbitrable.

      In addition to this determination, the Arbitrator also found that the grievance was not procedurally arbitrable based on other threshold issues concerning the Union's procedural compliance with other sections of the CBA or the grievance form. The Arbitrator found that the Union did not comply with: (1) Article 31, Section d of the CBA and item 7 of the grievance form as it concerns when the alleged violation occurred; (2) Article 32, Section a as it concerns the content of the notice for arbitration; (3) item 5 of the grievance form as it concerns identification of the rules, regulation, and statute violated, noting the "volume of items" cited by the Union; and (4) Article 32, Section b.3., with respect to the selection of an arbitrator. The Arbitrator thus stated that it was "clear" that "many of the remaining `threshold' issues would have also barred the instant grievance." Id. at 16, 17.

III.      Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the Arbitrator showed bias when he ruled that the grievance was not procedurally arbitrable because the Union did not try to informally resolve the grievance. The Union contends that this was not a threshold issue raised by the Agency. The Union asserts that it addressed the issues raised by the Agency and the Arbitrator cannot raise "new threshold issues" in his decision. Exceptions at 14. The Union also asserts that record testimony shows that the Union tried to informally resolve the grievance.

      The Union also claims that the Arbitrator showed bias concerning the issuance of a subpoena for Union witnesses. According to the Union, the Arbitrator signed the subpoena and sent it to the Agency with no copy to the Union. The Union states that it was not aware that the subpoena had been signed. The Union further argues that the Agency provided the Union an [ v62 p43 ] initial witness list that was filed untimely under Article 37, Section 7 of the CBA. The Union contends that as the initial witness list was untimely, the Arbitrator showed bias when he allowed the Agency to submit a revised witness list into evidence. The Union acknowledges that it "made an error when [it] signed for the witness list and did not get a copy," and thus "could not prove the Union's allegation that the initial witness list was not timely." Id. at 15.

      The Union further contends that the Arbitrator's findings and interpretation of Article 31, Section d, and Article 32, Sections a, b, and b.3 do not draw their essence from the parties' CBA, exceed the Arbitrator's authority, conflict with public policy, and are based on a nonfact. The Union also claims that the Arbitrator's findings concerning item 5 of the grievance form are inconsistent with the requirements of Article 31 of the CBA because there is no requirement under this provision that the grievance be specific. The Union asserts that the Arbitrator failed to conduct a fair hearing by allowing the Agency to "do [a] hearing by ambush," as it concerns the issue of informal resolution of the grievance. Id. at 14.

B.     Agency's Opposition

      The Agency asserts that although the Union "recites the . . . list of claims" for finding the award deficient, the Union does not develop the claims or explain how such claims establish that the award is deficient. Opposition at 2. Such contentions, according to the Agency, directly challenge the Arbitrator's procedural arbitrability determination and thus provides no basis for finding the award deficient.

      The Agency also asserts that the Arbitrator did not exceed his authority because his findings were directly responsive to the threshold issues of procedural arbitrability. As to the Union's claim that it was denied a fair hearing, the Agency contends that the Union has not shown that the Arbitrator did not conduct a fair hearing. The Agency also asserts that the Union has not identified any public policy that is involved in this case and thus the award is not contrary to public policy. The Agency further contends that the Union has not demonstrated that the Arbitrator was biased or that the award is based on a nonfact.

IV.     Analysis and Conclusions

      The Authority generally will not find an arbitrator's ruling on the procedural arbitrability ruling of a grievance deficient on grounds that directly challenge the procedural arbitrability itself. See, e.g., AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, such ruling may be found deficient on the ground that it is contrary to law. Additionally, a procedural arbitrability ruling may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or exceeded his or her authority. See id.

      The Union claims that the issue concerning whether the Union had tried informal resolution of the matter involved here was not raised by the Agency and, therefore, the Arbitrator cannot raise the matter in his award. We construe the Union's claim as a contention that the Arbitrator exceeded his authority. 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 United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995) (Naval Base, Norfolk).

      In this case, the Arbitrator addressed six procedural issues, including the issue concerning whether informal resolution of the grievance had been tried. Contrary to the Union's assertion, that issue was not raised by the Arbitrator but, instead, was raised by the Agency at the arbitration hearing. See Tr. at 84-85 and Award at 9-10. Since the Arbitrator resolved issues that were raised before him and stated by him, the Union has not shown that the Arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded specific limitations on his authority, or awarded relief to persons who are not encompassed within the grievance. See Naval Base, Norfolk, 51 FLRA at 307-08.

      The Union asserts that the Arbitrator showed bias when he ruled that the grievance was not procedurally arbitrable because the Union did not try to informally resolve the grievance when he issued the subpoena and when he allowed the Agency's revised witness list. To demonstrate that an award is deficient because of bias on the part of the arbitrator, a party must show that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Med. Ctr., N. Chi., Ill., 52 FLRA 387, 398 (1996). The Union has not demonstrated that the Arbitrator was biased. As found above, the issue concerning the informal resolution of the grievance was properly before the Arbitrator. Further, the Union has not demonstrated that the Arbitrator was biased as it concerns the witness list because the Union acknowledges that it signed for the witness list, and the Union has provided [ v62 p44 ] no evidence to show that the Arbitrator engaged in misconduct concerning the subpoena. See Tr. at 16-19 and Exceptions at 15.

      The Union also asserts that the Arbitrator allowed the agency to "do a hearing by ambush[]" with respect to the issues concerning informal resolution of the grievance. Exceptions at 14. We construe this issue as a fair hearing claim. Also, to the extent that the Union's contentions concerning the witness list and the subpoena can be considered claims concerning the Arbitrator's conduct of the hearing, we construe these issues as a fair hearing claim. Such claims provide no basis for finding the award deficient because the Union has not demonstrated that the Arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding, including the Arbitrator's actions with respect to the issues resolved, subpoena, and witness list, so prejudiced the Union as to affect the fairness of the proceeding as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995).

      The Union's essence and nonfact claims directly challenge the Arbitrator's procedural arbitrability determination, and thus provide no basis for finding the award deficient. Lastly, the Union also has not demonstrated that the award is contrary to public policy because the Union has cited no "explicit, well-defined and dominant" public policy to support its exception. See AFGE, Local 12, 57 FLRA 625, 629 (2001).

V.     Decision

      The Union's exceptions are denied.


APPENDIX

     The pertinent text of Articles 31 and 32 are as follows:

     ARTICLE 31 - GRIEVANCE PROCEDURE

     Section b. The parties strongly endorse the concept that grievances should be resolved informally and will always attempt informal resolution at the lowest appropriate level before filing a formal grievance. A reasonable and concerted effort must be made by both parties toward informal resolution.

. . . .

     Section d. Grievances must be filed within forty (40) calendar days of the date of the alleged grievable occurrence. If needed, both parties will devote up to ten (10) days of the forty (40) to the informal resolution process. If a party becomes aware of an alleged grievable event more than forty (40) calendar days after its occurrence, the grievance must be filed within forty (40) calendar days from the date the party filing the grievance can reasonably be expected to have become aware of the occurrence. A grievance can be filed for violations within the life of this contract, however, where the statutes provide for a longer filing period, then the statutory period would control.

. . . .

     ARTICLE 32 - ARBITRATION

     Section a. In order to invoke arbitration, the party seeking to have an issue submitted to arbitration must notify the other party in writing of this intent prior to expiration of any applicable time limit. The notification must include a statement of the issues involved, the alleged violations, and the requested remedy. If the parties fail to agree on joint submission of the issue for arbitration, each party shall submit a separate submission and the arbitrator shall determine the issue or issues to be heard. However, the issues, the alleged violations, and the remedy requested in the written grievance may be modified only by mutual agreement.

     Section b. When arbitration is invoked, the parties (or the grieving party) shall, within three (3) working days, request the Federa