[ v60 p408 ]
Dissenting Opinion of Chairman Cabaniss:
I write separately to explain why I would remand this case for further proceedings. While I agree that the Respondent indeed took part in a variety of activities surrounding the arbitration proceedings, I do not find that conduct to be dispositive in and of itself. Rather, and consistent with the court decision in Ables v. United States, 230 Ct. Cl. 863 (Ct. Cl. 1982) (Ables), and its impact on Authority precedent beginning with Dep't of Labor, Employment Standards Administration/Wage and Hour Div., Wash., D.C., 10 FLRA 316 (1982) (DOL), I would resolve the case based upon whether in effect the Respondent is asserting that the Arbitrator in the underlying case has no authority to resolve any issue the Union is attempting to resolve through the arbitration process, to include questions of arbitrability.
Section 7121(a) mandates that questions of arbitrability must be submitted to the arbitrator for resolution. Or, more specifically, "the Authority has held that a refusal by one party to participate in the procedures for the resolution of grievances, including questions of arbitrability, conflicts with the requirements of § 7121." United States Dep't of the Air Force, Headquarters 92nd Air Refueling Wing, Fairchild AFB, Wash., 59 FLRA 434, 435 (2003), citing to, inter alia, DOL, 10 FLRA at 321. In DOL, the Authority noted that "it would be anomalous for Congress to have required agencies and unions to include provisions for binding arbitration . . . if it were not contemplated that both parties would participate therein and share the costs thereof." Id. at 320-21. The Authority then noted the chilling impact from the Ables decision if one party did not proceed to arbitration and thus agreed to be subject to the requirement to help pay for the arbitration proceedings. While parties can indeed have a "loser pays" arbitration fee agreement, that consideration is not at play here.
From the above discussion I conclude that "participating" in arbitration proceedings includes more than just filing a brief or helping set up the arbitration hearing proceedings, it also includes the submission to the arbitrator's jurisdiction to resolve the matter, to include the sharing of the arbitrator's expenses (submitting to the jurisdiction of the arbitrator includes agreeing that one has a financial responsibility to help pay for the proceedings). Thus, there are two ways that a party may be found to have not participated in an arbitration proceeding. One way a party can not participate is to sabotage or frustrate the arbitration process (what the Judge looked at) while still not challenging the authority of the arbitrator to act upon the dispute or disagreeing with the arbitrator's right to bill the party for its share of the arbitration costs. Another way a party can not participate in arbitration proceedings is to not agree to the authority of the arbitrator to exercise any responsibility at all over the matter in dispute, to include challenging the arbitrator's right to issue any decision that would be binding on the party, or (as in the Ables decision) to dispute the authority of the arbitrator to bill the party for its share of the arbitration costs.
Clearly, parties can dispute whether an issue is properly before an arbitrator and not commit an unfair labor practice, but that ability to dispute the arbitrability of an issue does not extend to asserting that the arbitrator has no authority to resolve the matter. As noted, supra, questions of arbitrability must be resolved by the arbitrator, and I see no distinction drawn between arbitrability questions tied to whether an issue is properly before the arbitrator vs. arbitrability questions challenging the authority of the arbitrator to even issue a decision.
Thus, it is one thing for the Respondent to show up and not contest the authority of this Arbitrator to hear and act upon the case by asserting that the underlying 30-day suspension is moot and thus there is nothing for the Arbitrator to grant any remedy upon: in those circumstances I would find no violation of the Statute. However, it would be something else for the Respondent to argue that the Arbitrator is without jurisdiction to proceed -- even to decide that the original underlying case has become moot -- because the Arbitrator has no authority from the parties (or at least from the Respondent) to resolve this matter: I would find that to be a violation of the Statute. It would be by claiming that the Arbitrator lacked the authority to act upon anything, by virtue of having no authority from the Respondent to do so, that would cause the Respondent to run afoul of the 10 FLRA 316 decision, even though the Respondent engaged in the activities noted by the Judge.
I note that the Judge's decision, at page 4, references conduct by the Respondent (asking for the final bill to be sent) that seems to indicate that the Respondent no longer considered the Arbitrator to be empowered to act upon the case. Because the answer to the question posed (whether the Respondent is asserting that the Arbitrator has no right to resolve any issue vs. whether the Respondent is just asserting that the 30-day suspension is moot and thus there is no personnel action before the Arbitrator to act upon) is not apparent from the Judge's decision, I would remand the case for further proceedings to resolve that question. [*]
Footnote * for 60 FLRA No. 81 - Opinion of Chairman Cabaniss
As for whether "nothing in DOL even hints that merely challenging jurisdiction (on any basis), without more, could ever violate the Statute[,]" to quote footnote 5 in the majority opinion, DOL notes that it violates § 7121 of the Statute when a party refuses "to participate in the `procedures for the settlement of grievances, including questions of arbitrability[.]'" DOL, 10 FLRA at 321. I know of no greater manner of not participating in the "procedures" of § 7121 than to assert that the arbitrator has no jurisdiction over the parties, and thus no authority to render a decision on the arbitrability question.