71 FLRA No. 163

 

INDEPENDENT UNION

OF PENSION EMPLOYEES

FOR DEMOCRACY AND JUSTICE

(Union)

 

and

 

PENSION BENEFIT

GUARANTY CORPORATION

(Agency)

 

0-AR-5490

 

______

 

DECISION

 

June 25, 2020

 

______

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

 

I.             Statement of the Case

 

Arbitrator Charles Feigenbaum found that the Union’s grievance was not arbitrable because the Union failed to actively pursue the grievance as required by the parties’ collective-bargaining agreement.  The Union argues that the award should be vacated on            contrary-to-law, essence, and exceeds-authority grounds.  We find that the Union’s exceptions provide no basis on which to find the award deficient, and deny them.

 

II.            Background and Arbitrator’s Award

 

In May 2017, the Union filed, and invoked arbitration over, a grievance concerning a                   Joint Awards Program (awards grievance).  On February 14, 2018,^[1] the Arbitrator denied the parties’ cross motions for summary judgment, submitted his invoice for his work on the matter up to that date, and offered hearing dates in March and May.  On February 26, the Union emailed the Agency regarding only the Agency’s responsibility for the invoice.  The Agency paid the invoice in April.

 

On August 20, the Agency notified the Union that the grievance was void because the Union had failed to pursue the awards grievance in the six months following the Arbitrator’s February 14 ruling.  Thereafter, the Union contacted the Arbitrator to schedule a hearing for the awards grievance.

 

The issue before the Arbitrator was whether the awards grievance was procedurally arbitrable.  The Arbitrator found that Article 2, Section 3(A)(11) of the parties’ agreement (Article 2) controlled.  Article 2 provides that when the moving “[p]arty does not, for a period of six (6) months, actively pursue any grievance referred to arbitration,” the grievance                        “shall [be] render[ed] . . . null and void.^”[2] 

 

In determining the meaning of “actively pursue” in Article 2, the Arbitrator considered another arbitrator’s award (the Youngblood award) that found the Union had failed to actively pursue a grievance.^[3]  But the Arbitrator concluded that “[r]egardless of [the Youngblood award],” he construed the term “actively pursue” in Article 2 to require an “action, not merely a general statement of an intent to take an action[,]” that “moves the grievance toward arbitration.”^[4] 

 

The Arbitrator found that the last action in the awards grievance occurred on February 14 when he denied the parties’ cross motions.  He rejected the Union’s argument that the six‑month period began when the Union sent its February 26 email to the Agency because the email involved only payment of an invoice for his past services.^[5]  He also rejected the Union’s argument that it could not advance the awards grievance because the Agency delayed paying the invoice, finding that the delay did not impede the Union’s ability to pursue the awards grievance.

 

The Arbitrator also found it irrelevant that the parties disputed the order in which several pending grievances would be heard.  And he rejected the Union’s argument that the parties had a past practice of considering grievances arbitrable when a party had not communicated about or otherwise pursued a grievance for a six-month period.^[6] 

 

Ultimately, the Arbitrator found that the Union failed to pursue the awards grievance during the          six-month period from February 14 through August 13.  Therefore, he concluded that the awards grievance was not arbitrable and dismissed it. 

 

The Union filed exceptions to the award on April 3, 2019, and the Agency filed an opposition to the Union’s exceptions on May 3, 2019.

 

III.          Analysis and Conclusions

 

1. The award is not contrary to law.^[7]

    

The Union argues that the award is contrary to law because the Arbitrator misapplied “contract law as it relates to interpretation of ambiguous contract language.”^[8]  In support of this argument, the Union contends that the Arbitrator failed to  consider evidence of the parties’ past practice, and otherwise made no finding regarding the effect of the parties’ past practice, in determining the meaning of the term                “actively pursue.”^[9]  It further argues that the Arbitrator erred by failing to find that the parties’ past practice “revealed, at a minimum, that [‘]actively pursue[’] did not require any action, to include the scheduling of a hearing or communications.”^[10]

 

At the outset, we note that the Arbitrator made no finding that the term “actively pursue” is ambiguous.  And contrary to the Union’s assertion, the Arbitrator – in construing the term to require an “action that moves the grievance toward arbitration” – considered the Union’s evidence of a past practice related to Article 2 of their agreement and, based on the record, concluded that it did not affect the arbitrability of the awards grievance.^[11]

 

Moreover, the Arbitrator did not err in rejecting the Union’s past practice argument.  The standard for determining the existence of a past practice is whether the alleged practice is “consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other.”^[12]  Here, the record does not demonstrate that the parties had a past practice of ignoring Article 2’s requirements, as both parties regularly contested arbitrability based on the other party’s alleged failure to actively pursue grievances.^[13]  And to the extent that the Union is challenging the Arbitrator’s failure to cite all the evidence upon which he relied in making his findings, such an argument does not demonstrate that the award is deficient.^[14]

 

Additionally, the Union contends that the award is inconsistent with the “prevention doctrine,” which excuses a party’s failure to perform a contractual obligation if such performance is hindered, prevented or made impossible by the actions of the other party.^[15]  On this point, the Union contends the Arbitrator erred by failing to conclude that the Agency’s delay in paying the Arbitrator’s invoice, and its insistence that another grievance be heard first, prevented the Union from actively pursuing the awards grievance.^[16]  However, the Arbitrator found that neither Agency action prevented the Union from acting on the grievance, and the Union does not challenge those findings as nonfacts.  Therefore, we reject this argument.

 

Accordingly, the Union’s arguments do not demonstrate that the award is contrary to law.

1. The award draws its essence from the parties’ agreement.^[17]

    

                The Union argues that the award fails to draw its essence from the parties’ agreement because the Arbitrator:  (1) did not consider the parties’ past practice when interpreting the term “actively pursue;” (2) disregarded the agreement’s restriction on giving precedential authority to prior awards; and (3) excluded steps from the parties’ arbitration process, including the payment of invoices, from the agreement’s          “definition of ‘actively pursue.’”^[18]  As discussed previously, the Arbitrator rejected the Union’s contention regarding the parties’ past practice, and the record supports that finding.  Consequently, the Union’s past‑practice argument does not demonstrate that the award fails to draw its essence from the parties’ agreement.^[19]

 

Regarding the Union’s second argument, the Arbitrator discussed the Youngblood award but expressly stated that he did not rely on that award to resolve the awards grievance.^[20]  As to the Union’s third argument, the Union fails to cite any wording in the parties’ agreement defining “actively pursue” or otherwise supporting its contention that this term is intended to include the payment of invoices.^[21]  Accordingly, neither of these arguments demonstrate that the award fails to draw its essence from the parties’ agreement.^[22]

 

Consequently, we deny the Union’s essence exception.

 

1. The Arbitrator did not exceed his authority.

    

   Restating its essence arguments, the Union argues that the Arbitrator exceeded his authority because he modified the parties’ agreement by:  (1) disregarding the parties’ past practice when interpreting the term “actively pursue” and (2) giving precedential authority to a prior arbitration award.^[23]  Because we have previously rejected these contentions, we find that they provide no basis upon which to find that the Arbitrator exceeded his authority,^[24] and we deny the Union’s exception.

    

IV.          Decision

 

We deny the Union’s exceptions.