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.