American Federation of Government Employees, Local 1242, Council of Prison Locals 33 (Union) and United States Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Atwater, California (Agency)

[ v62 p477 ]

62 FLRA No. 87

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1242
COUNCIL OF PRISON LOCALS 33
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
ATWATER, CALIFORNIA
(Agency)

0-AR-4113

_____

DECISION

June 10, 2008

_____

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 Richard D. Fincher filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. The Authority issued an Order to Show Cause why the exceptions should not be dismissed as interlocutory, to which the Union responded.

      For the reasons that follow, we find that the Union's exceptions are not interlocutory, and we deny them.

II.     Background and Arbitrator's Award

      The Agency is a correctional facility that opened in 2000. The Union represents correctional officers at the facility. In 2002, the Agency set up a software program to manage the employment roster and track employees' overtime hours. In 2005, the Union filed a grievance alleging that, since the site's opening in 2000, the Agency had failed to distribute overtime opportunities in a fair and equitable manner as required by the parties' collective bargaining agreement (CBA). The Agency denied the grievance, and the Union invoked arbitration.

      [ v62 p478 ] As relevant here, before the Arbitrator, the Agency moved to dismiss the grievance as untimely. [n1]  The parties agreed to a hearing limited to the matter of arbitrability and the Arbitrator framed the issue as follows: "Is the grievance arbitrable?" Award at 1.

      Before addressing the arbitrability issues, the Arbitrator dismissed several of the Union's claims on the merits and declined to address a negotiability claim raised by the Union, stating that a failure to bargain allegation "is typically beyond the jurisdiction of an Arbitrator." Id. at 6. With respect to the Agency's claim that the grievance was not timely filed, the Arbitrator found that Article 31 of the CBA requires that grievances be filed within forty days of the Union having notice of the grievable act. [n2]  The Arbitrator determined that the Union was put on notice that the Agency was changing the way it managed employees' overtime hours more than forty days prior to filing the grievance, and that thus, the grievance was untimely filed. Specifically, the Arbitrator found that the Union could not base its 2005 grievance on alleged violations extending as far back as 2000, reasoning that "[t]he [CBA] clearly intends the parties to address potential violations when they are recent and can be remedied with accuracy." Id. at 9. However, the Arbitrator stated that "this Award does not leave the Union without recourse to address current or future overtime violations consistent with timely grievances under the [CBA]." Id. The Arbitrator retained jurisdiction over the matter.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union contends that the grievance was timely filed because the Union had been addressing procedural errors concerning the software program since August 29, 2002, and the Union was unable to assess the full effect of the impact and implementation of the software program until the final version was installed in July 2005. The Union also contends, on the merits, that the Agency's installation of the software does not comply with the overtime provisions of Article 18 of the parties' CBA and constitutes a repudiation of that Article.

B.      Agency's Opposition

      The Agency argues that the Union's exceptions should be dismissed because the Arbitrator resolved the sole issue of arbitrability submitted to arbitration and the Union's exceptions concern its arguments on the merits, which are not at issue. The Agency also contends that awards resolving questions of procedural arbitrability cannot be subject to challenge directly on arbitrability grounds.

IV.     Order to Show Cause and Union's Response

      The Authority ordered the Union to show cause as to why its exceptions should not be dismissed as interlocutory. In response, the Union argues that the appeal is not interlocutory because "[t]he Arbitrator made the final binding decision that the grievance was not arbitrable." Response at 1. The Union also asserts that, "[t]he merits of the case cannot be heard due to the ruling of the [A]rbitrator." Id. The Union requests that the Authority "remand the case to the Arbitrator for merits or examination of failure to bargain which the Arbitrator referred back to the parties or the FLRA." Id. at 1-2.

V.     Analysis and Conclusions

A.      The exceptions are not interlocutory.

      Section 2429.11 of the Authority's Regulations provides, in pertinent part, that "the Authority . . . ordinarily will not consider interlocutory appeals." Pursuant to this regulation, the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all the issues submitted to arbitration. AFGE, Local 12, 61 FLRA 355, 356 (2005); United States Dep't of Transp., FAA, Wash., D.C., 60 FLRA 333, 334 (2004) (FAA); United States Dep't of the Treasury, Bureau of Engraving & Printing, W. Currency Facility, Fort Worth, Tex., 58 FLRA 745, 746 (2003). However, the Authority may review arbitration awards that are not final where the interlocutory appeal raises a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. FAA, 60 FLRA at 334.

      Here, the Union's grievance stated that the Agency "violated and continue[s] to violate the overtime procedures listed in Article 18 of the [CBA]." Attachment to Exceptions, Grievance at 1. After a hearing, the Arbitrator [ v62 p479 ] disposed of two of the Union's claims on the merits, declined to hear the Union's negotiability claim, and disposed of the six remaining claims by finding the grievance untimely. Even though the Arbitrator did not reach the merits of certain claims, he did resolve all of the claims before him. Further, the Arbitrator noted that "[t]his [a]ward does not leave the Union without recourse to address current or future overtime violations," stating that such claims will be resolved through "timely grievances under the [CBA]." Award at 9. Consequently, the Arbitrator resolved the grievance before him and indicated that further disputes would be resolved in other grievances. As the award constitutes a complete resolution of all of the issues submitted to arbitration, we find that the exceptions are not interlocutory.

B.     The Union has not demonstrated that the award is deficient.

      An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See AFGE, Local 1501, 56 FLRA 632, 636 (2000) (Local 1501). 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) (Local 3882). 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)). Additionally, the Authority has stated that a procedural arbitrability determination may be found deficient based on 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)).

      Here, the Arbitrator found that the Union's grievance was untimely filed. The Union directly challenges this finding and, thus, directly challenges the Arbitrator's procedural arbitrability ruling. See Local 1501, 56 FLRA at 636. As the Authority generally will not find a procedural arbitrability ruling deficient on grounds that directly challenge that ruling, see Local 3882, 59 FLRA at 470, we deny the Union's exception concerning timeliness.

      The Union also reargues on the merits the claims that were dismissed by the Arbitrator as untimely. In view of our finding that the Union has not demonstrated that the Arbitrator erred in his determination regarding timeless, the Arbitrator did not err in failing to address the merits of the grievance, and