U.S. Federal Labor Relations Authority

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51:1683(140)AR - - Treasury, U.S. Mint, Philadelphia, PA & Fraternal Order of Police, Lodge F1-PA - - 1996 FLRAdec AR - - v51 p1683

[ v51 p1683 ]
The decision of the Authority follows:

51 FLRA No. 140















July 30, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Robert Herzog filed by the Agency under section 7122(a)(2) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition.

The Arbitrator issued an award requiring the parties to obtain a list of arbitrators from the Federal Mediation and Conciliation Service (FMCS) and to submit a grievance to an arbitrator selected therefrom. For the following reasons, we conclude that the Agency has provided no basis for finding the award deficient. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

After denial of its grievance challenging the suspension of a bargaining-unit member, the Union requested that the matter be submitted to arbitration. Fifteen days later, the grievant's attorney contacted the FMCS to request a list of arbitrators.

At this point, the Agency claimed that arbitration was no longer available to the Union. Although the Agency agreed that the Union timely requested arbitration under Article 29, Section 1 of the parties' agreement, the Agency asserted that the Union's failure to contact the FMCS within 10 days after its request violated Article 29, Section 2 of the agreement and rendered the grievance nonarbitrable.(1)

The parties agreed to submit only the question of procedural arbitrability to the Arbitrator, who framed the issue as follows:

Were the provisions of Collective Bargaining Agreement Article 29, Section 2 violated rendering the grievance concerning Officer John Greene's November 1, 1994 ten (10) day suspension not arbitrable? If not, what shall the remedy be?

Award at 2.(2)

The Arbitrator ruled that the Union timely invoked arbitration by satisfying Article 29, Section 1. The Arbitrator construed Article 29, Section 2 as merely administrative and, accordingly, found that the Union did not waive arbitration by failing to contact the FMCS within its prescribed time frame.

As his award, the Arbitrator ordered the parties to comply with Article 29, Section 2 by contacting the FMCS either singly or jointly within 10 days to initiate arbitration of the underlying grievance.

III. Agency's Exceptions

The Agency argues that the award does not draw its essence from the agreement. According to the Agency, Article 29, Section 2 requires strict compliance by the party invoking arbitration. Thus, the Agency asserts, the Union's failure to contact the FMCS in accordance with this provision rendered the grievance nonarbitrable.

The Agency also argues that the Arbitrator exceeded his authority. The Agency contends that by using the word "shall" to direct the parties to contact the FMCS, the Arbitrator improperly modified Article 29, Section 2, because this provision states that "either party may 'singly' . . . or 'jointly'" initiate contact. Exceptions at 2-3 (emphasis added).

IV. Analysis and Conclusions

The Agency's claim that the award does not draw its essence from the agreement is not properly before us. Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge the determination of procedural arbitrability. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995) (AFGE). Such grounds include bias on the part of the Arbitrator or a showing that the Arbitrator exceeded his authority. Id. at 186.

The Agency's essence argument rests squarely on the ground that the Arbitrator improperly interpreted and applied the agreement's timeliness provisions. This argument directly challenges the Arbitrator's determination of procedural arbitrability and, therefore, is not reviewable. See AFGE, 50 FLRA at 186; U.S. Department of Veterans Affairs, Eisenhower Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 50 FLRA 16, 19-20 (1994).

Although the Agency's assertion that the Arbitrator exceeded his authority is reviewable, the Agency has not substantiated this claim. The Agency contends that the Arbitrator exceeded his authority by disregarding a provision of the agreement prohibiting arbitrators from modifying the agreement.(3) The Agency asserts that the Arbitrator's award, in effect, substituted the word "shall" for the word "may" in Article 29, Section 2.

This exception fails because the Arbitrator did not clearly violate an express limitation. See, e.g., U.S. Department of Defense Dependents Schools and Overseas Education Association, 49 FLRA 120, 123 (1994). Rather, the Arbitrator properly exercised his power under both the agreement and Authority case law to interpret related provisions of the agreement. See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 605-06 (1990). The Agency's exception is merely an attempt to recast the Arbitrator's contract interpretation as an improper contract modification. As such, the exception does not provide a basis for finding the award deficient. Id. at 606.

Under these circumstances, the Arbitrator's order that the parties act in conformity with his interpretation of Article 29, Section 2 was a proper exercise of his "broad authority to fashion a remedy for a violation of a collective bargaining agreement[.]" American Federation of Government Employees, AFL-CIO, Local 2608 and U.S. Department of Health and Human Services, Social Security Administration, New York Region 2, San Juan Teleservice Center, 49 FLRA 1589, 1594 (1994).

V. Decision

The Agency's exceptions are denied.

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

1. Article 29, Section 1 states:

If a grievance is not satisfactorily settled at Step 3 of the Negotiated Grievance Procedure, the Union President may within thirty (30) calendar days from receipt of the Step 3 decision, submit the grievance to binding arbitration.

Award at 8.

Article 29, Section 2 states in pertinent part:

The Union shall notify the Activity (the Mint) when it invokes arbitration. Within ten (10) calendar days from the date of such notification, either of the parties may singly or jointly request the Federal Mediation and Conciliation Service to provide a list of five (5) impartial persons qualified to act as arbitrator.

Award at 9.

2. The Arbitrator also considered whether the Agency violated the agreement by refusing to recognize the letter from the grievant's attorney to the FMCS requesting a list of arbitrators. The Arbitrator found no violation because the agreement permits only the Union and the Agency to invoke arbitration, and there was no evidence that the Union authorized the grievant's attorney to act in its behalf. Neither party excepted to the Arbitrator's resolution of this question and, therefore, we need not address it.

3. The limiting provision, the Agency asserts, is Article 29, Section 6, which states:

The arbitrator in his/her decision shall not change, modify, alter, delete, add to, subtract from or disregard the provisions of this Agreement. The arbitrator will only have authority to interpret and apply those bilaterally negotiate provisions of the Agreement.

Exceptions at 2.