United States, Department of Veterans Affairs, Veterans Affairs Medical Center, Phoenix, Arizona (Respondent) and American Federation of Government Employees (Charging Party)

[ v60 p405 ]

60 FLRA No. 81

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
PHOENIX, ARIZONA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Charging Party)

DE-CA-03-0302

_____

DECISION AND ORDER

November 16, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This unfair labor practice case is before the Authority on an exception to a decision of the Administrative Law Judge (Judge) filed by the Charging Party. The Respondent filed an opposition to the Charging Party's exception.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to participate in an arbitration proceeding. The Judge granted the Respondent's Motion for Summary Judgment and denied the General Counsel's Cross-Motion for Summary Judgment, finding that the Respondent did not violate the Statute by departing an arbitration hearing after entering a special appearance to challenge the arbitrator's jurisdiction. Accordingly, the Judge dismissed the complaint.

      Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons set forth below, that the Respondent did not commit the unfair labor practices alleged in the complaint, and we dismiss the complaint.

II.     Background and Judge's Decision

      The Charging Party filed a grievance concerning a 30-day suspension of a unit employee. The parties were unable to resolve the grievance and agreed to submit it to arbitration. The Respondent provided a room for the hearing and arranged for a court reporter. Prior to the arbitration hearing, the Respondent canceled the grievant's suspension and informed him that all of his lost pay and benefits would be restored. Due to its cancellation of the suspension, the Respondent notified the Charging Party and the arbitrator that it considered the arbitration hearing unnecessary. In this regard, the Agency asserted that the matter submitted to arbitration was "resolved" by the cancellation of the suspension and that "there was nothing currently before [the arbitrator] to decide." Attachments, Exhibit 11 at 1. The Union objected to the Respondent's action, claiming that the Respondent could not unilaterally cancel the arbitration hearing. The arbitrator agreed with the Charging Party and determined that the hearing would proceed as scheduled.

      Two of the Respondent's representatives attended the arbitration hearing, entering a "special appearance" for the purpose of contesting the arbitrator's jurisdiction and then departing. Judge's Decision at 4-5. The arbitrator proceeded with the hearing and the Charging Party presented its testimony and evidence. Both parties submitted post-hearing briefs, and the arbitrator issued an award, sustaining the Charging Party's grievance and ordering the Respondent to pay the grievant for all lost pay and benefits. [n2]  Based on the Respondent's action of departing the hearing, the General Counsel (GC) issued a Complaint and Notice of Hearing, alleging that the Respondent refused to participate in the arbitration proceeding, thereby violating § 7116(a)(1) and (8) of the Statute. See Complaint at 2-3.

      Before the Judge, the GC provided Authority decisions where parties were found to have violated the Statute by failing to participate in "one or more aspects of the arbitration process[.]" Judge's Decision at 7. However, the Judge determined that in these decisions, "the respondent either interfered with or prevented the charging party's exercise of its right to obtain an award by an [a]rbitrator or failed to meet an affirmative obligation." Id. at 8. The Judge found that, "[h]ere, there is no indication [ v60 p406 ] that the Union was in any way impeded in the presentation of its case or that the [a]rbitrator was prevented from reaching a decision." Id.

      The Judge concluded that the Respondent did not violate the Statute, granted the Respondent's Motion for Summary Judgment, denied the GC's Motion for Summary Judgment, and dismissed the complaint. Id. at 6-8.

III.     Positions of the Parties

A.      Charging Party's Exceptions

      The Charging Party claims that the Respondent violated § 7116(a)(1) and (8) of the Statute by failing to "fully participate" in the arbitration proceeding. Exceptions at 2. As support for this argument, the Charging Party cites to Dep't of the Army, 83rd United States Army Reserve Command, Columbus, Ohio, 11 FLRA 55 (1983) (Army Reserve Command). Id. The Charging Party acknowledges that the Respondent participated in the arbitration hearing by entering a "special appearance" to contest the arbitrator's jurisdiction, but asserts that "subsequent events[,]" such as the Respondent's failure to perform the remedial actions ordered by the arbitrator and failure to pay the arbitrator, demonstrate the Respondent's continued unwillingness to participate in the grievance process. Id. at 2-3. The Charging Party states that the Respondent's failure to pay the arbitrator and to perform the remedial actions ordered by the arbitrator are the subjects of separate unfair labor practice charges. [n3]  See id.

      The Charging Party references Chairman Cabaniss' concurring opinion in VA, Phoenix, and states its agreement that "a party refuses at its peril to take part in an arbitration proceeding, and . . . such conduct amounts to an unfair labor practice." VA, Phoenix, 59 FLRA at 571 (citation omitted). [n4] 

B.      Respondent's Opposition

      The Respondent disputes the Charging Party's contention that it did not participate in the arbitration proceeding. In this regard, the Respondent contends that it joined the Charging Party in selecting an arbitrator, provided a room for the hearing, rescheduled the court reporter, and appeared at the hearing.

      In addition, the Respondent contests the Charging Party's allegation that the Respondent's failure to comply with the arbitrator's remedial actions or pay the arbitrator's fees demonstrates the Respondent's refusal to participate in the grievance process. Specifically, the Respondent argues that, pursuant to § 2429.5 of the Authority's Regulations, the Authority should not consider these allegations because they were not raised by the Charging Party or the General Counsel and were not addressed by the Judge. Further, regarding the separate unfair labor practice charges concerning these issues, the Respondent asserts that the Authority declined to issue a complaint in connection with the charge that the Respondent failed to pay the arbitrator's fees.

      The Respondent notes Chairman Cabaniss' concurrence in VA, Phoenix and contends that "this statement was a sua sponte recitation of the holding in [Dep't of Labor, Employment Standards Admin./Wage & Hour Div., Wash., D.C., 10 FLRA 316 (1982) (DOL)] . . . [and] was not based on the consideration of evidence or argument presented by either party in connection with this matter." Opposition at 8.

IV.     Analysis and Conclusions

      The Authority has held that an agency's refusal to participate in an arbitration proceeding pursuant to a negotiated grievance procedure conflicts with § 7121 of the Statute and therefore constitutes a violation of § 7116(a)(1) and (8). See Army Reserve Command, 11 FLRA at 56; DOL, 10 FLRA at 320;. In this regard, the Authority has noted that a party's refusal to participate in an arbitration proceeding results in the "obstruction" of the grievance resolution process, contrary to the mandate and intent of Congress in enacting § 7121. [ v60 p407 ] Headquarters, Dep't of the Army, Wash., D.C., 22 FLRA 647, 651 (1986) (Headquarters, Army); see also DOL, 10 FLRA at 321.

      Here, the Respondent did not refuse to participate in the arbitration proceeding. The Respondent agreed to submit the parties' dispute to arbitration, participated in selecting the arbitrator, provided a room for the arbitration hearing, and arranged for a court reporter. As acknowledged by the Charging Party, the Respondent participated in the hearing by making a "special appearance" to challenge the arbitrator's jurisdiction. Exceptions at 2. The Respondent also filed a post-hearing brief with the arbitrator. See Judge's Decision at 5.

      Further, the Respondent's actions did not hinder or obstruct the grievance resolution process. After the Respondent's departure, the arbitrator continued with the proceeding, hearing the Charging Party's evidence and testimony. Subsequently, the arbitrator issued an award sustaining the Charging Party's grievance. Based on the foregoing, the Charging Party has not demonstrated that the Respondent refused to participate in the arbitration proceeding or that the Respondent's actions resulted in the "hindrance or obstruction of grievance resolution by binding arbitration[.]" Headquarters, Army, 22 FLRA at 650.

      In arguing that the Respondent refused to participate in the arbitration proceeding, the Charging Party relies on Army Reserve Command, where a scheduled arbitration hearing never took place because the respondent refused to participate in the hearing and considered it canceled. In Army Reserve Command, as in other decisions where the Authority has found that a party refused to participate in an arbitration proceeding, the respondent's refusal to participate actually obstructed resolution of the grievance. See, e.g., Dep't of the Air Force, Langley Air Force Base, Hampton, Va., 39 FLRA 966, 969 (1991); Am. Fed'n of Gov't Employees, Local 1457, 39 FLRA 519 (1991); Headquarters, Army, 22 FLRA at 650; and Am. Fed'n of Gov't Employees, Local 2782, AFL-CIO, 21 FLRA 339 (1986). Nothing in Army Reserve Command, or the authority cited in that case, indicates that a party such as the Respondent here, who takes the position that an arbitrator lacks jurisdiction over a matter, but nevertheless does not impede the arbitration and disposition of the case, violates the Statute. See Army Reserve Command, 11 FLRA at 56 (citing DOL, 10 FLRA at 320-32). [n5]  As the Respondent's conduct here did not obstruct the resolution of the grievance, the Charging Party's reliance on Army Reserve Command is misplaced.

      As additional support for its claim that the Respondent refused to participate in the arbitration proceeding, the Charging Party alleges that the Respondent failed to perform the remedial actions ordered by the arbitrator and to pay the arbitrator. See Exceptions at 2. As argued by the Respondent, 5 C.F.R. § 2429.5 bars the Authority from considering evidence that was not presented in the proceedings before the Judge. Based on the record, there is no evidence that the above-referenced facts were presented in the proceeding before the Judge. Therefore, such facts are not properly before the Authority. [n6]  See United States Dep't of Health & Human Servs., Pub. Health Serv., Indian Health Serv., Quentin N. Burdick Mem'l Health Care Facility, Belcourt, N.D., 57 FLRA 903, 906 (2002).

      Based on the foregoing, the Charging Party has failed to demonstrate that the Judge erred in finding that Respondent did not violate § 7116(a)(1) and (8). Accordingly, we deny the Charging Party's exception.

V.      Order

      The complaint is dismissed.


File 1: Authority's Decision in 60 FLRA No. 81
File 2: Opinion of Chairman Cabaniss
File 3: ALJ's Decision


Footnote # 1 for 60 FLRA No. 81 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 81 - Authority's Decision

   The Respondent filed exceptions to this award and the Authority found that it was precluded from reviewing the exceptions by §§ 7121(f) and 7122(a) of the Statute. See United States Dep't of Veterans Affairs, Carl T. Hayden Med. Ctr., Phoenix, Ariz., 59 FLRA 569 (2004) (Chairman Cabaniss concurring) (VA, Phoenix).


Footnote # 3 for 60 FLRA No. 81 - Authority's Decision

   The Regional Director declined to issue a complaint regarding the Respondent's alleged failure to pay the arbitrator's fee