71 FLRA No. 153

 

UNITED STATES

DEPARTMENT OF THE AIR FORCE
673RD AIR BASE WING
JOINT BASE

ELMENDORF-RICHARDSON, ALASKA
(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES
LOCAL 1101
(Union)

 

0‑AR‑5516

 

–––

 

DECISION

 

June 5, 2020

 

–––

 

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

(Member DuBester dissenting)

Decision by Member Abbott for the Authority

 

1. Statement of the Case

    

   In this case, we again remind the federal labor‑management community that an arbitrator may not assume jurisdiction over the merits of a grievance when the party invoking arbitration fails to comply with the collective‑bargaining agreement’s procedural requirements.

    

   The Agency excepts to Arbitrator Dorothy Fallon’s award, which reduced the grievant’s       three‑day suspension for safety violations to a written reprimand.  Because the Arbitrator found the grievance procedurally arbitrable even though the Union did not comply with procedural requirements in Article 10, Section 8 of the parties’ agreement (Section 8), we find that the award does not draw its essence from the parties’ agreement and vacate it.

    

2. Background and Arbitrator’s Award

    

   The grievant is a Sheet Metal Mechanic whom the Agency disciplined for “failure to observe safety practices including failure to use required                    PPE [Personal Protective Equipment].”  The Agency suspended him for three days.^[1]

    

   The parties have a multi‑step grievance process.  As relevant here, the Agency denied the grievance after the Union advanced it to Step 3.  It reasoned that the Union did not timely file it under Section 8, nor did it submit it to one of the officials identified in Section 8.  The Agency found that these facts rendered the grievance procedurally deficient.

    

   Regarding Step 3 procedures, Section 8 states in pertinent part: 

    

   Step 3:

    

1. If the decision is not settled   at Step 2, the [U]nion has 5 workdays to submit the [g]rievance in writing to the [s]quadron [c]ommander or designee. ^[2]

 

After the Agency denied the Step 3 grievance, the Union invoked arbitration.  In advance of the arbitration hearing, the Agency filed a motion to dismiss that, as relevant here, argued that the Union had not complied with Section 8’s procedural requirements because it did not file the Step 3 grievance within the agreement’s specified timeline.  Additionally, the Agency argued that the Union had not complied with Section 8’s provision specifying Agency officials with whom the Union was supposed to file the Step 3 grievance.

 

The Arbitrator denied the motion during the arbitration hearing.  She rejected the Agency’s timeliness argument and concluded that “labor relations between the parties is better served by a hearing on the merits since the Agency is not harmed by the brief delay in filing the . . . Step 3 Grievance[].”^[3]

 

On the merits, the Arbitrator sustained, in part, and denied, in part, the grievance and ordered the discipline to be reduced to a reprimand.

 

The Agency filed exceptions to the award on June 28, 2019, and the Union filed an opposition on July 10, 2019.

 

1. Analysis and Conclusion:  The award does not draw its essence from the parties’ agreement.

    

   The Agency argues that the award does not draw its essence from the parties’ agreement because the Union failed to comply with the procedural requirements in the parties’ agreement.^[4]  Specifically, the Agency argues that the award fails to enforce provisions in Section 8 governing the timeline for advancing a grievance from Step 2 to 3.^[5]

    

   The Agency argues that the Arbitrator erred by finding the Union’s Step 3 grievance timely.  Section 8 clearly and unambiguously states that                           “the [U]nion has 5 workdays” to file a Step 3 grievance.^[6]  We have emphasized that “when parties agree to a filing deadline – with no mention of any applicable      exception – the parties intend to be bound by that deadline.” ^[7]  Because Section 8 clearly and unambiguously requires the Union to file its              Step 3 grievance within five workdays, and does not provide any exceptions authorizing the Arbitrator to consider the impact on “labor relations,”^[8] the Arbitrator’s determination that the grievance was arbitrable does not represent a plausible interpretation of the parties’ agreement.^{[9], [10]}

    

   Because arbitrators are not free to ignore the procedural rules parties negotiate into a collective‑bargaining agreement,^[11] we grant the Agency’s essence exception and vacate the award.^[12]

    

2. Decision

    

   We grant the Agency’s essence exception.

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

 

 

Member DuBester, dissenting:

 

                The majority grants the Agency’s essence exception, and vacates the Arbitrator’s award, based on the Agency’s argument “that the award fails to enforce provisions in [the parties’ collective bargaining agreement] governing the timeline for advancing a grievance from Step 2 to 3.”1  The problem with this decision is that the Agency made no such argument in its exception.

 

                The Agency devoted nearly three pages of its exceptions to its argument that the award failed to draw its essence from the parties’ agreement.2  As part of this exception, it challenged the Arbitrator’s finding that the Union’s Step 2 grievance was timely filed and served upon the proper official.3  It also challenged the Arbitrator’s finding that the Union was not required by the parties’ agreement to have filed its grievance at the Step 4 level.4  However, the Agency never argued that “the Arbitrator erred by finding the Union’s              Step 3 grievance timely.”5

 

                My colleague’s effort to rebut this conclusion falls well short of the mark.  Specifically, the Agency did not “incorporate[] by reference” this argument in its essence exception.6  In the portion of its exception upon which my colleague relies for this assertion, the Agency simply notes that it had filed a motion with the Arbitrator to dismiss the grievance, and that this motion contained “arguments citing specific language” in the parties’ agreement.7  But the Agency only generally describes these issues as “related to timeliness, delivery of grievances to the wrong parties, and the failure to submit a Step 4 grievance.”8  As such, even this cursory reference contains no mention of its argument that the Step 3 grievance was untimely, and it certainly does not “incorporate” such an argument “by reference” in its essence exception.9

                Vacating an award on grounds that were not raised by a party in its exceptions violates fundamental principles of due process.  Parties should be provided the opportunity to address and, if possible, rebut arguments presented for our review in exceptions from arbitration awards.  The Authority’s regulations incorporate this principle by requiring parties filing exceptions to explain and support their arguments,10 and by guaranteeing the opposing party the right to file a brief addressing the grounds asserted in the exceptions.11

 

                But more fundamentally, by deciding this case on grounds not raised in the Agency’s exceptions, the majority “abdicates its role as a neutral adjudicator and embraces the role of Agency advocate.”12  It is for these reasons that the Authority, with the exception of jurisdictional issues, has “long declined to address issues that are not raised by a party.”^[13]

 

                The majority’s departure from this principle undermines the very process upon which we rely to address and resolve challenges to arbitration awards.  Accordingly, I would not vacate the award on the grounds relied upon by the majority, and I would instead consider the arguments that actually were raised by the Agency in its exceptions.