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38:0276(31)AR - - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 - - 1990 FLRAdec AR - - v38 p276

[ v38 p276 ]
The decision of the Authority follows:

38 FLRA No. 31









LOCAL 2612




November 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator David C. Randles filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the exceptions.

The Agency filed a grievance claiming that the Union refused to agree to a site for a scheduled arbitration hearing. The Arbitrator upheld the grievance and found that the Union's failure to cooperate in conducting the hearing was in bad faith. The Arbitrator ordered the Union to "cease and desist from refusing to conduct arbitration hearings in the Base Courtroom and Building 14 Classroom." Award at 9.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency filed a grievance claiming that the Union's refusal to agree to hold an arbitration hearing in the Base Courtroom, and to accept alternative on-base locations, caused the postponement of the hearing and the consequent unavailability of a key management witness. Award at 6. When the grievance was not resolved, it was submitted to arbitration.

When the Arbitrator tried to schedule a time and place for the arbitration hearing, his attempts "were frustrated" by the Union president. Id. at 3. The Arbitrator asked the parties to brief him on the issue of whether it was within his authority to schedule a time and place for the hearing. Id. On January 22, l990, the Arbitrator ruled in a letter to the parties that he had the authority to set a time and place. The Arbitrator also informed the parties of his scheduled hearing date and gave them a choice of locations. Id. The Union filed an appeal of this threshold decision. On March 30, 1990, the Authority dismissed the exceptions as interlocutory. U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 35 FLRA 375 (1990).

The arbitration hearing was convened on April 3, 1990, in the Base Courtroom. At the hearing, the Union maintained that "the grievance of the Employer over where hearings shall be held is not arbitrable and that the arbitrator should first rule on that question before proceeding to the employer's case on the merits." Id. at 4. The Union also made a motion that the case "should be bifurcated." Id. The Arbitrator denied the motion, ruling that "[t]he issue of arbitrability . . . [was] inseparable from the case on the merits." Id. Thereafter, the Union representative "departed the hearing and the [A]rbitrator heard the case ex parte." Id.

First, the Arbitrator found that the grievance was arbitrable. The Arbitrator stated that "[c]learly all aspects of its subject matter [were] comprehended by the contract Articles 1 and 26." Id. at 6.

Next, the Arbitrator considered whether the Union violated Article 26 "by refusing to conduct arbitration hearings in the Base Courtroom and Building 14 Classroom" since September 6, 1989. Id. at 5. The Arbitrator found that Article 26, Section 3, Step 4c provides, in relevant part, that "if possible, the arbitration hearing shall be held on base facilities during working hours." Id. at 6. The Arbitrator found that "the word 'possible' in the provision [did] not imply or require mutual consent within the context of its use." Id. The Arbitrator also found that "a clear and unambiguous past practice" existed "that if it is 'possible' arbitration hearings are held in the Base Courtroom or Building 14 Conference Room." Id. at 7. He further found that this practice had existed since 1981, was "consistently applied," was "known to both parties," and, therefore, "must be found to embody the intent of the parties." Id.

With respect to the Union's alleged bad faith, the Arbitrator relied on Article 1, Section 2 of the parties' agreement, which requires, in relevant part, "that orderly and constructive relationships be maintained between Union and Management officials . . . ." Id. at 8. Based on this provision, the Arbitrator held that "[t]he Union's course of conduct must be found to be egregious, disorderly and destructive of the relationship between itself and management . . . ." Id. He further found "that the Union had sought to frustrate the process of dispute resolution through the contractual grievance procedure, especially in regard to grievances filed by management." Id.

Accordingly, the Arbitrator sustained the grievance. The Arbitrator found that the Union's "violations constitute[d] 'bad faith' under the terms of the Contract" and ordered the Union to "cease and desist from refusing to conduct arbitration hearings in the Base Courtroom and Building 14 Classroom." Id. at 9.

III. Union's Exceptions

The Union asserts that the Arbitrator's award is "in violation of Title 29 - Chapter XII - Part 1404.14 Conduct of Hearings." Exceptions at 1. In support of this assertion, the Union contends that "[n]othing in the Law or Contract requires the Union to participate in Arbitration Hearings." Id. The Union further maintains that the award is deficient because the Arbitrator proceeded ex parte. Id.

As its second exception, the Union asserts that by ordering the Union to cease from refusing to conduct its arbitration hearings in the two designated locations, the award violates 29 C.F.R. § 1404.13(d). Id. The Union maintains that as "there is no clear and concise statement in the contract that determines the place an Arbitration hearing can possibly be held, the law clearly gives that right to the arbitrator selected to hear a particular arbitration case." Id. Furthermore, the Union states that the award would "severely restrict" the right of arbitrators to set the place of hearings and would restrict "the allowable communication between the parties." Id.

IV. Analysis and Conclusion

The Union claims that the award violates 29 C.F.R. §§ 1404.14 and 1404.13(d). These provisions are part of 29 C.F.R. Part 1404, issued by the Federal Mediation and Conciliation Service (FMCS), which describe FMCS' arbitration services. 29 C.F.R. Part 1404 applies to "all arbitrators listed on the FMCS Roster of Arbitrators . . . and to all persons or parties seeking to obtain from FMCS . . . names of arbitrators listed on the Roster in connection with disputes which are to [be] submitted to arbitration . . . ." 29 C.F.R. § 1404.1.

In this case, the Arbitrator described his award as "FMCS Case No. 90-01518[.]" Award at 1. Consequently, we conclude that the Arbitrator was appointed to arbitrate this dispute by FMCS, under procedures described in 29 C.F.R. Part 1404. Assuming without deciding that 29 C.F.R. §§ 1404.14 and 1404.13(d) constitute applicable regulations, within the meaning of section 7122(a)(1) of the Statute, we find that the Union has not established that the award is in any manner inconsistent with those provisions.

A. 29 C.F.R. § 1404.14

In relevant part, 29 C.F.R. § 1404.14 provides:

All proceedings conducted by the arbitrator shall be in conformity with the contractual obligations of the parties. . . . The arbitrator may, unless prohibited by law, proceed in the absence of any party who, after due notice, fails to be present or to obtain a postponement.

This provision, as plainly worded, enables an arbitrator to proceed ex parte, unless prohibited by law, if a party fails to attend an arbitration hearing after having received due notice of the hearing. The Union has pointed to no provision of law prohibiting the Arbitrator from proceeding ex parte in this case and no such provisions are apparent to us. In fact, the Authority has sustained awards resulting from ex parte hearings in circumstances such as those in the instant case. See, for example, Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 630 (1988) (Carswell Air Force Base); Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia and American Federation of Government Employees, Local No. 987, 24 FLRA 968, 969-970 (1986).

Moreover, the record reveals, and the Union does not dispute, that the Arbitrator gave the Union due notice of the hearing in his January 22, 1990, letter, as required in 29 C.F.R. § 1404.14, and that the Union's representative attended part of the hearing on April 3, 1990. Award at 3-4. Consequently, because the Union received due notice and chose to leave the hearing, and because the Union has not established that the Arbitrator was prohibited by law from holding the hearing ex parte, we conclude that the Union has not established that the award is inconsistent with 29 C.F.R. § 1404.14.

Finally, we reject the Union's assertion that "[n]othing in the Law or Contract requires the Union to participate in Arbitration Hearings." Exceptions at 1. A refusal by a party to participate in the procedures for the settlement of grievances conflicts with section 7121 of the Statute. Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA 316, 320 (1982) (Employment Standards Administration). In particular, neither the wording of section 7121 nor its legislative history "provides a basis for excusing [a] party from participating in the mechanism mandated by Congress in section 7121 for resolving grievances not satisfactorily settled by the parties at earlier stages of the negotiated grievance procedure." Id. at 320.

B. 29 C.F.R. § 1404.13(d)

The Union's second exception states that the Arbitrator's award violates 29 C.F.R. § 1404.13(d), which provides:

The arbitrator, upon notification of appointment, is required to communicate with the parties immediately to arrange for preliminary matters, such as date and place of hearing.

The Union contends that the award "would severely restrict" the rights of other arbitrators to set hearing places and would restrict "the allowable communication between the parties" as prescribed in 29 C.F.R. § 1404.13(d).

The Arbitrator's award states that "[t]he Union shall cease and desist from refusing to conduct arbitration hearings in the Base Courtroom and Building 14 Classroom." Award at 9. This award addresses only the Union's refusal to use these two designated locations. The award does not require the parties, or an arbitrator in a future case, to use these two locations exclusively; the award does not preclude the parties or a future arbitrator from choosing another site. Therefore, the award does not conflict with 29 C.F.R. § 1404.13(d) by limiting an arbitrator in arranging the site of future arbitration hearings.

In conclusion, the Union has not established that the award is contrary to 29 C.F.R. §§ 1404.13(b) or 1404.14. Accordingly, the exceptions do not constitute a basis for finding the award deficient under section 7122(a)(1) of the Statute.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)