73 FLRA No. 140                                                                                                         

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 987

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF THE AIR FORCE

WARNER ROBINS AIR LOGISTICS CENTER

78 ABW/CIVILIAN PERSONNEL OFFICE

WARNER ROBINS AIR FORCE BASE, GEORGIA

(Agency)

 

0‑AR-5867

 

_____

 

DECISION

 

November 9, 2023

 

_____

 

Before the Authority:  Susan Tsui Grundmann, Chairman, and Colleen Duffy Kiko, Member

 

I.  Statement of the Case

 

Arbitrator Jack Clarke issued an award finding the Union’s grievance procedurally arbitrable and denying it on the merits.  On exceptions, the Union argues that the Arbitrator disregarded a contractual limitation on his authority by addressing the grievance’s merits.  Because the parties’ master agreement expressly and unequivocally prohibits an arbitrator from resolving both a threshold arbitrability issue and a grievance’s merits, we grant the Union’s exceeded‑authority exception, set aside the Arbitrator’s merits findings, and remand the dispute to the parties.

 

II.  Background and Arbitrator’s Award

 

The Union filed a grievance alleging that the Agency violated the master agreement when the Agency failed to schedule the grievant for overtime.  Article 7 of the master agreement includes both “regular arbitration procedure[s]” and “[e]xpedited arbitration procedures.”[1]  The Agency denied the grievance, and the Union invoked the “regular arbitration procedure” set forth in Article 7, Section 7.06 of the master agreement.[2]  Before the scheduled arbitration hearing, the Agency sent an email to the Arbitrator “to serve as official notice” of a “thres[h]old issue[].”[3]  In the email, the Agency asked “that the case be dismissed” because the Union designated its grievance as an unfair‑labor‑practice matter necessitating regular arbitration.[4]  Based on its contention that the grievance concerned overtime rather than an unfair labor practice, the Agency argued that the Union was required to use the expedited arbitration process in Article 7, Section 7.08 of the master agreement.  That section requires, among other things, that overtime grievances “be arbitrated using the expedited procedure.”[5]

 

Article 7, Section 7.05 of the master agreement (Section 7.05) authorizes arbitrators to “make all grievabil[i]ty and . . . arbitrability determinations” raised by the parties in pre-hearing briefs.[6]  Under Section 7.05, if an arbitrator makes a threshold determination that a grievance is “grievable . . . or arbitrable, the[n the] next available arbitrator will . . . hear the merits of the grievance to avoid a perceived conflict of interest.”[7]

 

In response to the Agency’s email, the Arbitrator told the parties, “[I]n the event I were to . . . treat [the Agency’s] email as a request to invoke the procedure set out in Section 7.05, . . . I would not find that the grievance lacked arbitrability.”[8]  After receiving the Arbitrator’s email, the Union claimed that the Arbitrator had made a Section 7.05 arbitrability determination, and the Union requested the Agency’s participation in selecting a new arbitrator to hear the grievance’s merits.  However, the Arbitrator notified the Union that he had “not issued a Section 7.05 ruling” but, instead, provided the parties with an “advisory email.”[9]  Thereafter, the parties attended the scheduled arbitration hearing before Arbitrator Clarke.

 

At the beginning of the hearing, the Agency argued again that the grievance “lacked arbitrability” because it did not raise an unfair labor practice and, therefore, “should have been submitted to [expedited] arbitration.”[10]  Although the Arbitrator agreed that the grievance did not implicate an unfair labor practice, the Arbitrator found no contractual wording requiring the grievance’s dismissal on that basis.  Therefore, “the Arbitrator did not find [that] the grievance lacked arbitrability.”[11]

 

Next, the Arbitrator considered the grievance’s merits.  The Arbitrator framed the merits issues as whether the Agency violated the master agreement “when it did not schedule the [g]rievant to work overtime . . . and, if so, what shall be the remedy?”[12]  Interpreting the parties’ overtime article, the Arbitrator found that the Agency was not required to schedule the grievant for overtime.  As a result, the Arbitrator concluded that the Agency did not violate the master agreement and denied the grievance.

 

The Union filed exceptions to the award on February 23, 2023,[13] and the Agency filed an opposition on March 29.

 

III.  Preliminary Matter:  We do not consider the Agency’s opposition.

 

Based on the date of the Union’s statement of service, the Agency’s opposition appeared to be untimely.  Accordingly, the Authority’s Office of Case Intake and Publication ordered the Agency to show cause why the Authority should not dismiss the Agency’s opposition as untimely.  The order stated that the Agency’s response was due on April 18 and that failure to respond to, or comply with, the order might result in the Authority declining to consider the Agency’s opposition.  Citing the Authority’s Regulations, the order also stated that “the Agency’s response must be filed by commercial delivery, by first class-mail, or by certified mail.”[14]

 

In a response filed on April 19, the Agency alleges that it attempted to file its response using the Authority’s eFiling system on April 18.  The Agency concedes that its April 19 response is untimely but requests that the Authority consider it because the Agency “incorrectly presumed” that eFiling was a valid method for responding to an Authority order.[15]

 

Section 2429.24(f) of the Authority’s Regulations does not permit a party to file a response to an Authority order through the eFiling system.[16]  Consistent with the Regulations, the Authority does not consider erroneously eFiled documents.[17]  The Agency’s mistaken assumption that it could eFile a response to an Authority order provides no basis for considering the Agency’s untimely response.[18]  Further, the Agency does not allege that any extraordinary circumstances exist to warrant waiving the expired time limit.[19]

 

Accordingly, we do not consider the Agency’s response.  The Agency has failed to show cause why the Authority should not dismiss the Agency’s opposition as untimely.  As such, we do not consider the opposition.[20]

 

IV.  Analysis and Conclusion:  The Arbitrator exceeded his authority.

 

The Union asserts that the Arbitrator lacked the authority to consider the grievance’s merits.[21]  According to the Union, Section 7.05 required the parties to submit the merits dispute “to another arbitrator” once the Arbitrator issued “a determination . . . on a threshold [arbitrability] issue.”[22]  As relevant here, the Authority will find that arbitrators exceed their authority when they disregard specific limitations on their authority.[23]

 

Under Section 7.05, an arbitrator who receives a threshold arbitrability question must either dismiss the grievance or, after finding the grievance arbitrable, relinquish jurisdiction so that the parties may choose “the next available arbitrator” to resolve the grievance’s merits.[24]  In other words, Section 7.05 expressly and unequivocally limits arbitrators’ authority, prohibiting them from resolving both a threshold arbitrability issue and a grievance’s merits.

 

Here, the Agency provided the Arbitrator with “official notice” of a “thres[h]old issue[]” regarding the grievance’s arbitrability before the arbitration hearing.[25]  In a pre‑hearing email, the Arbitrator advised the parties that he would not find the grievance non‑arbitrable.  Then, after the Agency reiterated its threshold arbitrability argument at arbitration, the Arbitrator ultimately concluded – in his award – that the grievance “did not . . . lack[] arbitrability.”[26]  At that point, the Arbitrator had exhausted his authority, as Section 7.05 clearly mandates that “the next available arbitrator . . . hear the merits of the grievance to avoid a perceived conflict of interest.”[27]  Despite this express, unequivocal contractual limitation on his arbitral authority, the Arbitrator addressed the merits.  As such, we find that he exceeded his authority.[28]

 

We grant the Union’s exception and set aside the merits portion of the award.[29]  We also remand the dispute to the parties, absent settlement, for resubmission to a different arbitrator to resolve any remaining merits issues.

 

V.  Decision

 

 We grant the Union’s exceeded‑authority exception, set aside the merits portion of the award, and remand the dispute to the parties for resubmission of the merits to a different arbitrator, absent settlement.