71 FLRA No. 164                                                                                                                                                              

 

UNITED STATES

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

WASHINGTON, D.C.

(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

 

0‑AR‑5423

 

_____

 

DECISION

 

June 29, 2020

 

_____

 

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

(Member DuBester dissenting)

 

 

1. Statement of the Case

 

In this case, we remind the                         federal labor‑relations community that arbitrators may not disregard the plain wording of parties’ collective‑bargaining agreements. 

 

The Union filed a grievance alleging that the Agency’s overtime‑distribution practices violated the parties’ master collective‑bargaining agreement.  Arbitrator Joseph M. Sharnoff issued an award finding that the Union improperly filed a step‑three institutional grievance instead of a step‑one group grievance.  Rather than dismissing the grievance, the Arbitrator remanded the matter with instructions to settle the grievance.  If settlement efforts did not resolve the dispute, the Arbitrator granted the Union the right to refile the grievance at any time, without regard for the procedural requirements of the parties’ agreement.

 

The main question before us is whether the award – addressing the Union’s failure to properly file the grievance by granting the Union the right to refile      at any time – fails to draw its essence from the parties’ agreement.  Because the award conflicts with the plain wording of the parties’ agreement, we find that it cannot be rationally derived from the agreement.  Accordingly, we set aside the award.

 

II.            Background and Arbitrator’s Award

 

The Union filed a step‑three grievance, on behalf of five employees, alleging that the Agency’s overtime‑distribution practices violated the parties’ agreement, and requesting that the Agency make whole the affected employees.  The dispute proceeded to arbitration.

 

At arbitration, the parties contested only the question of whether the Union properly filed the grievance.  Accordingly, the Arbitrator did not frame an issue, and he addressed only that procedural matter.  

 

The Arbitrator observed that the parties’ agreement contains different filing procedures for certain types of grievances.  Specifically, Article 9, Section 1(d) states that “[g]rievances (including group grievances) filed by the Union on behalf of individual employees should be filed under the procedures set forth in [Article 9,] Section 9.”^[1]  In contrast,                “institutional grievances”– grievances on behalf of the Union as an institution – “should be filed under the procedures . . . in [Article 9,] Section 8.”^[2]  Section 8, in turn, requires that institutional grievances                     “be submitted . . . to the [s]tep [three] official”^[3] whereas, under Section 9, individual and group grievances          “are to be filed at [s]tep [one].”^[4]

 

Applying these “clear and unambiguous” provisions, the Arbitrator determined that the Union improperly filed the grievance as a step‑three institutional grievance because it was filed “on behalf of . . . [a] group of employees . . . [and] seeks individual remedies on behalf of these . . . employees.”^[5]  He went on to find that, in its grievance, the Union failed to identify any institutional interests, and did not seek any remedial relief for alleged harm to its institutional interests.  Accordingly, the Arbitrator determined that the Union improperly filed the grievance at step three, noting that it was a “special . . . procedure expressly reserved for . . . ‘institutional’ claims.”^[6]

 

Next, the Arbitrator remanded the grievance and instructed the parties to try to resolve it on the merits.  The Arbitrator noted that the parties’ agreement requires termination of a grievance if the Union fails to comply with the time limits contained in the agreement.^[7]  Although the Arbitrator issued the award about two years after the filing of the grievance, he granted the Union the right to “submit the grievance at [s]tep [one] of the [g]rievance [p]rocedure, as if th[e] grievance timely had been filed at that [s]tep,” at any time after the receipt of the award.^[8]  In support, the Arbitrator noted that the parties’ agreement does not contain an express provision requiring dismissal of improperly filed grievances.

 

On October 19, 2018, the Agency filed exceptions to the award, and on November 20, 2018, the Union filed an opposition to the Agency’s exceptions.

 

 III.         Analysis and Conclusion:  The award fails to draw its essence from the parties’ agreement.

 

The Agency argues that the award fails to draw its essence from the parties’ agreement.^[9]  Specifically, the Agency argues that allowing the Union to refile the grievance as a step‑one group grievance conflicts with the plain wording of Article 9 of the parties’ agreement.^[10] 

 

The Authority will find that an award fails to draw its essence^[11] from a collective‑bargaining agreement where, as relevant here, the award conflicts with the agreement’s plain wording.^[12]  The Authority has also held that when parties agree to a procedural deadline – with no mention of any applicable exception – the parties intend to be bound by that deadline.^[13]  Article 9, Section 5(c)(1) requires step‑one grievances to be filed within thirty days,^[14] and the Arbitrator acknowledged that Article 9, Section 10 specifically states that untimely filed Union grievances “shall be terminated.”^[15] 

 

The award, which finds that the Union violated Article 9 when it improperly filed its grievance, and then grants the Union “the right” to refile a now two‑years late grievance “as if [it] timely had been filed,” is incompatible with the plain wording of Article 9, Section 5(c)(1).^[16]  The Arbitrator found that the Union’s grievance should have been filed at step one instead of step three.^[17]  In crafting an illusory “right” to refile, the Arbitrator emphasized that the parties’ agreement does not contain an express provision addressing how to handle an improperly filed grievance.^[18]  However, the absence of such a provision did not permit the Arbitrator to create an exception to an existing provision and direct one party to act inconsistently with Article 9’s filing requirements.^[19]

 

Based on the above, we find that the Arbitrator’s award effectively created a brand new contract provision that entitled the Union to refile an improperly filed, and now untimely, grievance.^[20]  Accordingly, we conclude that the award cannot be rationally derived from the parties’ agreement because it is incompatible with the plain wording of the parties’ agreement.^[21]  Accordingly, we find that the award fails to draw its essence from the agreement.^[22]

 

IV.          Decision

 

We grant the Agency’s essence exception and set aside the award.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Member DuBester, dissenting:

 

                I disagree with the majority’s conclusion that the award fails to draw its essence from the parties’ collective-bargaining agreement.  Accordingly, I dissent from its decision to set aside the award.

                                                                                                                   

                The majority is correct that the Arbitrator found that the Union should have filed its grievance at Step 1 of the parties’ negotiated grievance procedure.  What the majority fails to mention, however, is that the Arbitrator also found that the Agency failed to comply with the grievance procedure, in two significant respects.

 

                First, the Arbitrator found that the Agency failed to “respond at all” to the Step 3 grievance, despite its obligation to do so within fourteen days after receiving the grievance.1  And more significantly, the Arbitrator found that the Agency failed to comply with its obligations under Section 4(b) of the grievance procedure.  This provision states that, “[t]o the extent that grievability/arbitrability has been questioned, the party raising the question should provide an explanation of the issue by the time a panel of arbitrators is requested from the Federal Mediation and Conciliation Service (FMCS), or selection of an arbitrator from a permanent panel.”2  Thus, in addition to not responding at all to the           Step 3 grievance, the Agency did not raise any issue regarding arbitrability of the grievance until after the Union had invoked arbitration, completed mediation, and agreed on a date for the hearing.3

 

                Based on these findings, the Arbitrator concluded that both parties had failed to “follow strictly the express terms of Article 9 for processing grievances and arbitrability claims.”4  And he found that, if the Agency had complied with these procedures by informing the Union of its position that the grievance was misfiled at Step 3, the Union could have submitted the grievance to the appropriate Agency official at Step 1, and the grievance could have been processed from that point forward in accordance with the parties’ agreement.5  He therefore directed the parties to “return[] to the status quo ante,” which included the ability of the Union to refile the grievance at Step 1.6

 

                I would find that the Arbitrator’s resolution falls well within his remedial authority.  In rejecting the Agency’s argument that he was required to dismiss the grievance, the Arbitrator correctly noted that nothing in the parties’ agreement “expressly requires a result as harsh as the complete forfeiture of the underlying grievance if it is filed at the wrong step.”7  And he found that returning the parties to the status quo ante was appropriate based on the Agency’s failure to comply with procedures in the parties’ agreement that are expressly designed to address, and resolve, the arbitrability issue that was before him.

 

                I disagree with the majority that the Arbitrator’s award “effectively created a brand new contract provision.”8  Rather, the Arbitrator simply directed both parties to process the Union’s grievance in accordance with the terms of the parties’ agreement.  As nothing in the parties’ agreement precluded the Arbitrator from issuing such direction, I cannot agree that the award fails to draw its essence from the agreement.9  I would therefore deny the Agency’s essence exception and consider the other exceptions raised by the Agency.10