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61 FLRA No. 17
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
WEST PALM BEACH, FLORIDA
July 12, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Alan S. Lunin filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
After finding that the Agency violated the parties' agreement, the Arbitrator declined to award the remedy sought by the Union.
For the reasons set forth below, we deny the Union's exceptions.
II. Background & Arbitrator's Award
The Union filed a grievance challenging the Agency's decision to charge an employee with failing to follow leave procedures on three occasions and placing her on absence without leave (AWOL) for those times. As a remedy, the Union requested rescission of the AWOL charges and conversion of those hours to annual leave. See Exceptions, Attachment 10, "Step 3 Grievance."
The Agency did not deliver its Step 3 grievance decision to the Union within the time limit in the parties' collective bargaining agreement (CBA). See Award at 3, 10-11. Subsequently, the Union requested [ v61 p89 ] that the Agency resolve the grievance in favor of the Union pursuant to Article 42, § 9 of the CBA. [n1] The Agency refused and the parties submitted the matter to arbitration, where the parties stipulated to the following issues: (1) "Was the [Agency]'s third step grievance decision deliver[ed] timely?" and (2) "If it was not timely delivered, is the remedy sought by the [U]nion legal and reasonable?" Id. at 2.
Before the Arbitrator, the Union argued that the Agency's failure to timely deliver a Step 3 decision required the grievance to be resolved in favor of the grievant because, consistent with Article 42, § 9, the remedy requested was legal and reasonable. The Agency argued that it made a good faith effort to hand-deliver the decision on the day it was due, and that the remedy requested by the Union was not reasonable.
In addressing the first issue before him, the Arbitrator concluded that the Agency did not deliver the decision to the Union on the day it was due. He also found that "the [Agency] made a good faith effort to comply with the requirements of the [CBA], that the late delivery [of the decision] was not purposeful, and that no prejudice has been shown because of the late delivery." Award at 11.
Having found that the Agency's third-step grievance decision was not timely delivered to the Union, the Arbitrator then addressed the second issue before him: whether the remedy requested by the Union was "legal and reasonable under the circumstances of the grievance[.]" Id. In determining whether the requested remedy was reasonable, the Arbitrator considered factors such as "the seriousness of the offense[,]" the grievant's past discipline, the "proximity in time and the similarity of the offense[,]" and the grievant's position "providing care to patients[.]" Award at 13-14. Specifically, the Arbitrator found that: the grievant's "failure to comply with leave request rules is so frequent as to be intentional[;]" the grievant's past discipline -- a warning letter and a written reprimand -- was an "aggravating factor[;]" the grievant was charged with similar offenses in "a relatively short time period[;]" and patient appointments had to be canceled due to the grievant's absence. Id. at 13-14.
Based on the foregoing, the Arbitrator concluded that the Agency "fulfilled its burden of pro[ving] that the remedy requested by the grievant is not reasonable under the circumstances of the grievance." Id. at 12-13. Accordingly, he denied the grievance.
III. Position of the Parties
A. Union's Exceptions
The Union excepts to the Arbitrator's award on four grounds.
The Union argues that, as to the first issue before him, the Arbitrator "depart[ed] from the essence of the [CBA], to develop an additional requirement not provided [for] in the [CBA]." Exceptions at 2. In this connection, the Union argues that the Arbitrator held that "the time limits in the [CBA] somehow do not apply unless prejudice is shown to the innocent party, or no `good faith' effort is shown by the party ignoring the deadline." Id. Further, the Union argues that negotiated time limits for answering grievances are substantive requirements, and not procedural issues within the Arbitrator's discretion. See id. at 2-3 (citing Wyandot, Inc. v. Local 227, UFCWU, 205 F.3d 922 (6th Cir. 2000) (Wyandot)). According to the Union, the Arbitrator "ignored the precise terms of the [CBA]" and "substituted his own beliefs regarding fairness and equity[.]" Id. at 3.
The Union also argues that, as to the second issue before him, the Arbitrator's interpretation of Article 42, § 9 fails to draw its essence from the CBA because it "departs substantially from its clear meaning." Id. at 4. According to the Union, under Article 42, § 9, the grievant should prevail by virtue of the Agency's failure to comply with the time limits set forth in the CBA and without consideration of the merits of the grievance. See id. at 5. As such, the Union contends that the Arbitrator erred in considering "whether the punishment imposed by [the Agency] fits the alleged violations." Id.
2. Exceeds Authority
The Union argues that the Arbitrator exceeded his authority in two respects. First, the Union asserts that the Arbitrator failed to address whether the remedy requested by the Union was reasonable. See Exceptions at 5. Second, [ v61 p90 ] the Union contends that the Arbitrator decided a question that was not before him when he addressed the merits of the grievance, specifically, "the validity of [the Agency's] charges and the appropriateness of the punishment it imposed." Id.
The Union asserts that, because the award fails to draw its essence from the CBA, the Arbitrator was biased. Id. at 3. In this connection, the Union argues that the Arbitrator "went to great lengths to explain why the failure of management to meet the deadline was excused by good faith and lack of prejudice" and to conclude that the Agency had met its obligation under the CBA. Id. According to the Union, these findings "clearly indicate a bias towards management's position on this matter." Id.
4. Public Policy
The Union claims that the award is contrary to public policy because it "allows [the A]rbitrator to ignore substantive[,] bargained[-]for deadlines" in the parties' CBA "by recharacterizing them as `procedural matters' subject to [the Arbitrator's] individual construction and interpretation." Id. at 5.
B. Agency's Opposition
The Agency asserts that the Union has failed to demonstrate that the Arbitrator's award is deficient. According to the Agency, it was proper for the Arbitrator to consider the factors he relied on in determining whether the remedy requested by the Union was reasonable. Further, the Agency asserts that in evaluating these factors, the Arbitrator did not err in finding that the remedy was not reasonable under the circumstances of the grievance.
IV. Analysis and Conclusions
A. The award does not fail to draw its essence from the CBA.
In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). The Authority defers to the arbitrator in this context because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576.
The Union has misconstrued the Arbitrator's findings as to the first issue before him for resolution. In this regard, the Arbitrator clearly found that the Agency did not timely deliver its Step 3 decision to the Union. See Award at 3, 10-11. Contrary to the Union's apparent claim, the Arbitrator's additional findings (that the Agency made a good faith effort to comply with the CBA's requirements and that the late delivery was not purposeful and did not prejudice the Union) are not inconsistent with the Arbitrator's clear finding as to the first issue -- in favor of the Union -- that the decision was not delivered timely.
Moreover, to the extent the Union is challenging the Arbitrator's determination that the Agency's Step 3 decision was untimely, this claim provides no basis for finding the award deficient. In this regard, the Arbitrator's ruling "constitutes his determination on the procedural arbitrability issue of whether the Agency's response was timely under the parties' collective bargaining agreement." United States Dep't of Veterans Affairs, Eisenhower Med. Ctr., Leavenworth, Kan., 50 FLRA 16, 19 (1994). The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id. (citing AFGE, Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id.; see also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE, Local 2921, 50 FLRA 184, 185-86 (1995)).
The Union's claim that the Arbitrator's finding regarding the timeliness of the Agency's Step 3 decision fails to draw its essence from the parties' agreement directly challenges the Arbitrator's procedural arbitrability determination. As such, it provides no basis for finding the award deficient. See, e.g., United States Dep't of Homeland Sec., Customs & Border Prot. Agency, N.Y., N.Y., 60 FLRA 813, 815 (2005).
In addition, the Union's reliance on Wyandot is unavailing. Wyandot sets forth the "essence" standard used by the United States Court of Appeals for the Sixth Circuit in private sector cases. Nothing in that standard, which is similar to the standard used by the Authority, [ v61 p91 ] compels a conclusion that the award in this case is deficient on the ground that the award fails to draw its essence from the parties' agreement.
As to the second issue before the Arbitrator, nothing in the Union's exception demonstrates that the award fails to draw its essence from the agreement. The Arbitrator addressed, pursuant to Article 42, § 9 of the CBA, whether the remedy requested by the Union was "reasonable under the circumstances of the grievance" and found that it was not. Award at 11. In doing so, the Arbitrator considered criteria such as the seriousness of the offense, the grievant's past discipline, the proximity in time and the similarity of the offense, and the grievant's position as a patient care provider. As set forth above, the Authority defers to the Arbitrator's interpretation "because it is the [A]rbitrator's construction of the agreement for which the parties have bargained." OSHA, 34 FLRA at 576. The Union's exception as to the second issue before the Arbitrator does not establish that the Arbitrator's interpretation of Article 42, § 9, which took into account the criteria mentioned above, is irrational, implausible, or otherwise deficient under the essence standard set forth above.
Accordingly, the Union has failed to establish that the award fails to draw its essence from the award, and we deny the exceptions.
B. The Arbitrator did not exceed his authority.
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).
The Union's claim that the Arbitrator failed to address whether the remedy requested by the grievant was reasonable is without merit because the Arbitrator did in fact address that question, expressly finding that the remedy was "not reasonable in this case." Award at 15.
The Union also asserts that the Arbitrator exceeded his authority by addressing the validity of the Agency's charges against the grievant and the appropriateness of the punishment it imposed. As discussed above, in determining that the remedy requested by the Union was not reasonable under Article 42, § 9 of the CBA, the Arbitrator considered such factors as the seriousness of the offense, the grievant's past discipline, the proximity in time and the similarity of the offense, and the grievant's position as a patient care provider. As the contractual language allows the Arbitrator to consider "the circumstances of the grievance" in determining whether the remedy requested was reasonable, the Arbitrator did not exceed his authority by considering the criteria set forth above.
Based on the foregoing, we deny the exceeded authority exceptions.
C. The Arbitrator was not biased.
To demonstrate that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the Arbitrator, or that the Arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Med. Ctr., N. Chicago, Ill., 52 FLRA 387, 398 (1996).
The Union asserts, in substance, that the Arbitrator was biased because he failed to interpret the CBA consistent with the interpretation set forth by the Union. The Authority has held that an arbitrator will not be found to be biased solely on the basis that he or she made findings in favor of one party over another. See, e.g., NAGE, Local R1-109, 58 FLRA 501, 504 (2003). The fact that the Arbitrator interpreted the agreement in a manner that differs from the Union's interpretation does not demonstrate bias on the part of the Arbitrator. Consequently, the Union has failed to demonstrate that the Arbitrator was biased and we deny the exception.
D. The award is not contrary to public policy.
The Authority will find an award deficient as contrary to public policy. However, this ground is "extremely narrow." Soc. Sec. Admin., 32 FLRA 765, 767 (1988) (quoting United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S.Ct. 1589 (1988)). In order to find the award deficient, the public policy must be explicit, well-defined and dominant. See id. In addition, the excepting party must identify the policy "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id. at 768 (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983)). In order to prevail, the excepting party must clearly show that the award violates the asserted public policy. See id.
The Union asserts that public policy requires that arbitrators not apply their own "individual construction and interpretation" to substantive, bargained-for deadlines in parties' agreements. Exceptions at 5. However, the Union fails to cite any explicit, well-defined, and dominant public policy. The Union's exception is based on "general considerations of supposed public interest, which fail to establish the necessary explicit, well-defined, and dominant public policy." Def. Sec. Assistance Dev. Ctr., 60 FLRA 292, 294 (2004) (citations omitted). Consequently, we deny the exception.
The Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 17 - Authority's Decision
Section 9 - Failure to Respond in Timely Manner
Should management fail to comply with the time limits at Step 1, the grievance may be advanced to Step 2. Should management fail to comply with the time limits for rendering a decision at Step 2 or Step 3, the grievance shall be resolved in favor of the grievant, provided that (1) receipt of the grievance had been acknowledged by management at the appropriate step in writing and (2) the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance.
Exceptions, Attachment 1 at 168.