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61 FLRA No. 23
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
July 18, 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 Jack Stieber 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. For the reasons discussed below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance, which the parties could not resolve, and the matter was submitted to arbitration. At the hearing, the Agency alleged that the grievance was not arbitrable. The Arbitrator directed the parties to submit briefs on the issue of arbitrability and stated that he would address the merits in a separate hearing if he first found that the grievance was arbitrable. See Award at 2. Accordingly, the Arbitrator framed the issue as: "Is the [g]rievance arbitrable?" Id.
The Arbitrator found that the grievance was not arbitrable because the Union's attempt to invoke arbitration did not meet the requirement set forth in Article 32(a) of the parties' agreement that the party seeking to submit an issue to arbitration must give the other party a written notification that "must include a statement of the issues involved, the alleged violations, and the requested [ v61 p119 ] remedy." [n1] Award at 7 (quoting Article 32(a) (emphasis omitted)). In so finding, the Arbitrator rejected the Union's assertion that it had complied with Article 32(a) because "`[t]he Agency's response to the grievance shows a complete knowledge of the issue being raised, the sections being violated, and the remedy being sought[.]'" Award at 6 (quoting Union's Post-Hearing Brief at 9). The Arbitrator construed the Union's claim as essentially arguing that the clear requirements of Article 32(a) could be "rendered superfluous" if this information was included in the grievance form and the Agency's response to the grievance. Id. at 7. The Arbitrator rejected this argument, finding that, in order for the Agency to exercise its right under Article 32(a) to submit a separate submission of the issues and to refuse to join with the Union in its submission of the issues, the Agency "must have a clear statement from the Union regarding the issues involved, [the] alleged violations, and the requested remedy." Id.
Consequently, the Arbitrator found that the grievance was not arbitrable and dismissed it. [n2]
III. Positions of the Parties
A. Union's Exceptions
The Union excepts to the Arbitrator's award on two grounds. First, the Union asserts that the Arbitrator exceeded his authority by adding a requirement to the parties' agreement that the arbitration notice "repeat the grievance on the same piece of paper." Exceptions at 7. In this connection, the Union asserts that Article 32(a) requires only that the arbitration notice "include" a statement of the issues involved, the alleged violation, and the requested remedy. Id. Since the Arbitrator found that the Union's grievance was sufficiently specific to provide the Agency with notice of that information, the Union alleges that by referencing the grievance in its arbitration notification, it "included all of the information required" under Article 32(a) in its arbitration notification. Id. at 6. Further, the Union claims that the Agency was not prejudiced because it received the required information in the grievance and, since the parties' agreement prohibits modifying the issue without the consent of the Agency, the arbitration notice could not have provided any more information than that contained in the grievance.
Second, the Union alleges that the award is contrary to 5 U.S.C. § 7121(b)(1) because the parties' grievance procedure is not "`fair and simple.'" [n3] Id. at 8 (quoting 5 U.S.C. § 7121(b)(1)). In this regard, the Union alleges that "Congress was not willing to leave the grievance procedure to the whims of negotiations between the parties" and "insisted that the procedure must be `simple[,'] and must result in arbitration of unsettled grievances." Id. at 9. The Union alleges that, "as actually interpreted by th[e] Agency[,]" the parties' grievance procedure is "insurmountably complicated[.]" Id. The Union claims that, in order to be "simple," the grievance procedure "must be written clear enough to be followed by an employee who is a correctional officer." Id. at 10-11. In addition, the Union contends that nothing in statute, regulation, or the parties' agreement "put the Union on notice" that the arbitration notification "could not be written on two pieces of paper." Id. at 11. According to the Union, "[t]he creation of a procedural rule that is not clear" under statute, regulation, or the parties' agreement is not "simple" and violates 5 U.S.C. § 7121(b)(1). Id. [ v61 p120 ]
B. Agency's Opposition
First, the Agency disputes the Union's assertion that the Arbitrator exceeded his authority. In this regard, the Agency asserts that the Arbitrator "specifically restate[d] and interpret[ed] the requirements of Article 32[(a)]," and that, under Authority precedent, it is well-established that compliance with the procedural requirements of a negotiated grievance procedure is a question for resolution by the Arbitrator. Opposition at 6.
Second, with regard to the Union's argument that the award is contrary to 5 U.S.C. § 7121(b)(1), the Agency argues that "[t]he fact that the Agency requires the Union to meet the requirements of the parties' agreement does not mean that the procedure itself is not `fair and simple.'" Id. at 8 (quoting 5 U.S.C. § 7121(b)(1)). The Agency further asserts that the parties' grievance procedure was jointly negotiated by the Union and the Agency at the national level, with the Union having "as much input in [its] develop[ment] as the Agency." Id. As to the Union's contention that the grievance procedure must be simple enough for a correctional officer to understand, the Agency contends that: (1) the Union is responsible for electing and training its own leadership; (2) the elected Union official who attempted to invoke arbitration in this case received training from the national Union; and (3) that same elected official is not a volunteer, but rather, works on official time when he acts on behalf of the Union. See id. at 9.
IV. Analysis and Conclusions
In the present case, there is no dispute that the Arbitrator issued a procedural arbitrability determination when he ruled that the grievance was not arbitrable because the Union's invocation of arbitration did not satisfy the requirements set forth in Article 32(a) of the parties' agreement. See Exceptions at 1; Opposition at 4.
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)). [n4] 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)).
A. The Arbitrator did not exceed his authority.
As set forth above, a procedural arbitrability determination may be found deficient on the ground that an arbitrator exceeded his or her authority. Accordingly, we address the Union's claim that the Arbitrator exceeded 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 FLRA1645, 1647 (1996).
The Union claims that the Arbitrator exceeded his authority by adding a requirement to the parties' agreement that the arbitration notice "repeat the grievance on the same piece of paper." Exceptions at 7. We construe this as a claim that the Arbitrator exceeded his authority by resolving a matter that was not submitted to arbitration.
Where, as here, the parties fail to stipulate the issue, the arbitrator may formulate the issue on the basis of the subject matter of the grievance. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000). The Authority defers to an arbitrator's framing of an issue. See, e.g., AFGE, Local 933, 58 FLRA at 482. Here, the Arbitrator framed the issue as whether the grievance was arbitrable. See Award at 2. In resolving the issue, the Arbitrator found it necessary to address whether the Union had complied with the requirements set forth in Article 32(a) of the parties' agreement for arbitration notices and found that it had not. The award is directly responsive to the issue as framed by the Arbitrator. Accordingly, we find that the Arbitrator did not exceed his authority by addressing and interpreting whether the Union had complied with the requirements for arbitration notices set forth in Article 32(a) of the parties' agreement. [ v61 p121 ]
Moreover, to the extent the issues raised by the Union's argument involve the Arbitrator's interpretation and application of the parties' agreement, we construe the Union's exception as a claim that the award fails to draw its essence from the parties' agreement. See, e.g., Soc. Sec. Admin., Balt., Md., 57 FLRA181, 183 (2001). Such a claim 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 FLRA813, 815 (2005).
Based on the foregoing, we deny the Union's exception.
B. The award is not contrary to law.
As set forth above, a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. Accordingly, we address the Union's claim that the award is contrary to law.
The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union alleges that the award is contrary to 5 U.S.C. § 7121(b)(1) because the parties' grievance procedure is not "fair and simple." The Statute provides that "any collective bargaining agreement shall provide procedures for the settlement of grievances[.]" 5 U.S.C. § 7121(a)(1). Grievance procedures vary among parties and the Statute does not prescribe any specific grievance procedure or procedures. See Nat'l Aeronautics & Space Admin., Headquarters, Wash., D.C., 12 FLRA480, 500 (1983) (NASA). The Statute only requires that grievance procedures be "fair and simple," "provide for expeditious processing," and include procedures for submitting unresolved disputes to "binding arbitration[.]" 5 U.S.C. § 7121(b)(1). The United States Court of Appeals for the District of Columbia Circuit has noted that, "[s]ubject to these limitations, the parties may shape the procedures as they choose." AFGE , Locals 225, 1504, and 3723, AFL-CIO v. FLRA, 712 F.2d 640, 641 (D.C. Cir. 1983).
As the court stated above, § 7121(b)(1) allows the parties to negotiate their grievance procedures consistent with the statutory requirements. Here, consistent with the "broad general criteria for the guidance of those engaged in collective bargaining[,]" NASA, 12 FLRAat 501, the parties jointly negotiated the parties' agreement, which includes Article 31, "Grievance Procedure" and Article 32, "Arbitration[.]" Nothing in the Union's exception establishes that the procedure adopted by the parties is not fair and simple, or that there was otherwise a failure to comply with § 7121(b)(1) of the Statute. See NASA, 12 FLRAat 500-01 (no showing that the grievance procedure adopted by the parties was not "fair and simple" within the meaning of § 7121(b)(1) of the Statute).
Accordingly, we deny the Union's exception.
The Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 23 - Authority's Decision
In order to invoke arbitration, the party seeking to have an issue submitted to arbitration must notify the other party in writing of this intent prior to expiration of any applicable time limit. The notification must include a statement of the issues involved, the alleged violations, and the requested remedy. If the parties fail to agree on joint submission of the issue for arbitration, each party shall submit a separate submission and the arbitrator shall determine the issue or issues to be heard. However, the issues, the alleged violations, and the remedy requested in the written grievance may be modified only by mutual agreement.
Exceptions, Ex. F at 2.
Footnote # 2 for 61 FLRA No. 23 - Authority's Decision
The Arbitrator also found that the Union's grievance specifically identified the sections of the rules, regulations, or the parties' agreement that were allegedly violated and that the grievance was timely. As these findings are not challenged on exceptions, we do not address them further.
Footnote # 3 for 61 FLRA No. 23 - Authority's Decision
(b)(1) Any negotiated grievance procedure referred to in subsection (a) of this section shall -
(A) be fair and simple,
(B) provide for expeditious processing, and
(C) include procedures that -
(i) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;
(ii) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and
(iii) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.
Footnote # 4 for 61 FLRA No. 23 - Authority's Decision
In this regard, the Authority also stated that "statutory, procedural requirements may be established that apply to negotiated grievance procedures and . . . a statute could be enacted establishing a filing period for grievances." AFGE, Local 933, 58 FLRAat 481. To the extent that a governing rule or regulation establishes a procedural requirement that applies to a negotiated grievance procedure, such a rule or regulation would similarly provide a basis on which a procedural arbitrability ruling could be found deficient. See § 7122(a)(1) of the Statute (noting that the Authority will set aside an arbitration award if the award is "contrary to any law, rule, or regulation[.]").