Independent Union of Pension Employees for Democracy and Justice (Union) and Pension Benefit Guaranty Corporation (Agency)
| Decision Date | 29 September 2015 |
| Docket Number | 0-AR-5075 |
| Citation | 68 FLRA No. 155 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | INDEPENDENT UNION OF PENSION EMPLOYEES FOR DEMOCRACY AND JUSTICE (Union) and PENSION BENEFIT GUARANTY CORPORATION (Agency) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members.
Arbitrator James E. Conway issued an award finding that the Union violated § 7116(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute)[1] and the parties’ collective-bargaining agreement (CBA) when it published a newsletter containing an article that threatened an employee. The Union filed exceptions challenging not only the Arbitrator’s findings on the merits, but also his findings that the CBA bound the parties and that he was properly appointed and selected for this arbitration.
First the Union alleges that the award is contrary to law and fails to draw its essence from the CBA and that the Arbitrator exceeded his authority because the CBA, negotiated with a previous union, does not bind the Union. Because an agreement’s grievance and arbitration procedures survive any expiration of that agreement, we deny these exceptions.
Second the Union argues that the award is contrary to law and the Arbitrator exceeded his authority because the Arbitrator could not make a finding concerning his own long-term appointment. Because the Arbitrator did not make a finding regarding his own long-term appointment, we deny this exception.
Third, these exceptions also challenge the Arbitrator’s selection to arbitrate this grievance. Because these exceptions challenge the Arbitrator’s finding of procedural arbitrability, and such findings cannot be successfully challenged on essence or nonfact grounds, we deny these essence and nonfact exceptions. Additionally, because the Union bases its contrary-to-law and exceeds-authority exceptions in this regard on its essence claim or these exceptions otherwise fail to provide a basis for finding the award deficient, we likewise deny them.
Fourth, the Union challenges the Arbitrator’s findings that the grievance was a proper grievance under the CBA and that the grievance was timely as contrary to law and failing to draw their essence from the agreement, and on the ground that the Arbitrator exceeded his authority. Because these findings are procedural-arbitrability determinations, we deny the exceptions that allege that these findings failed to draw their essence from the agreement. Furthermore, the Union either fails to cite to any law, fails to demonstrate that the Arbitrator exceeded his authority, or bases its argument on a faulty premise. Therefore, we deny these exceptions.
Fifth, the Union alleges that the Arbitrator denied it a fair hearing and that the Arbitrator was biased. Additionally, the Union argues that the award is contrary to law and fails to draw its essence from the agreement, and that the Arbitrator exceeded his authority because he had a conflict of interest. Because the Union fails to demonstrate the lack of a fair hearing, bias, or a conflict of interest on the part of the Arbitrator, we deny these exceptions.
Sixth, the Union argues that the award is based on a myriad of nonfacts. However, because the alleged nonfacts were disputed at arbitration or the Union fails to demonstrate how, but for the alleged nonfact, the Arbitrator would have reached a different result, we deny these exceptions.
Seventh, the Union contends that the award is contrary to 5 U.S.C. § 552a, 42 U.S.C. § 2000e-8(e), and 29 C.F.R. § 1614.101(b). Because the Union does not demonstrate how the award is contrary to these laws and these regulations, we deny these exceptions.
Eighth, the Union challenges the award as contrary to § 7116(a)(1) and (3) of the Statute. Because the Union does not allege any actions by the Agency that might violate the Statute, we deny this exception.
Ninth, the Union argues that the award is contrary to the First Amendment to the U.S. Constitution because the speech in the article was protected speech. Because the Union does not demonstrate that the speech in question is protected speech, we reject these exceptions.
Tenth, the Union alleges that the award is contrary to §§ 7102 and 7116(e) of the Statute because the article is protected speech. However, because neither of these sections provides protection for coercive activity, we deny these exceptions.
Eleventh, the Union contends that that the award is otherwise contrary to law and fails to draw its essence from the CBA because: (1) the Agency did not meet its burden of proof, because the portion of the CBA the Arbitrator found violated does not apply; (2) the statements in the article were true; and (3) the article is comparable to other articles found to be protected. However, the Union either bases these exceptions on arguments already denied or fails to demonstrate how these arguments have any bearing on the award. Consequently, we deny these exceptions.
Finally, the Union argues that the award is contrary to law and public policy because the arbitration was retaliatory. Because the Union fails to support this assertion, we deny this exception.
Before the Union was certified as the exclusive representative, the Agency and the previous union negotiated and executed a CBA. Under the CBA, the parties, within thirty days of the implementation of the CBA, “will exchange lists of the names of ten . . . arbitrators they deem acceptable to serve as arbitrator[s] for disputes under this [a]greement.”[2] Once the parties agreed to five names, [3] those individuals became the permanent pool of arbitrators (the pool), and “as arbitrations are invoked, arbitrators will be selected alphabetically by their last name[s].”[4] Prior to the current grievance at issue, but after the Agency and the previous union had reached agreement on both the CBA and the pool, the previous union lost an election and was decertified.
At a certain point after the certification of the Union, the Agency filed a grievance against the Union alleging that the Union had committed an unfair labor practice (ULP) by violating § 7116(b)(1), (3), and (8) of the Statute and violated Article 15 of the CBA (Article 15) when it published a newsletter containing an article that was coercive and intimidating to an employee who testified on behalf of the Agency during a separate arbitration.[5] Specifically, the newsletter gave the name of the employee as well as the location of her office, and called her a “traitor to [Agency] employees, ” warning other employees to “beware of” and “avoid” her.[6] Article 15 states, in relevant part, that “[e]mployees . . . who have relevant information concerning any matter for which remedial relief is available under this [a]greement will, in seeking resolution of such a matter, be assured freedom from restraint, interference, coercion, discrimination, intimidation[, ] or reprisal.”[7]
The grievance was unresolved, and the Agency contacted Arbitrator James E. Conway to hear and resolve the matter “pursuant to Article 2, [section] 3B(3)” of the CBA.[8] The Union protested that it had not bargained for or agreed to the selection process of the Arbitrator.[9] At the time of this grievance, the Agency and the Union had not completed negotiations on a new agreement.
The Union, “under protest, ”[10] and the Agency held a phone conference with the Arbitrator to discuss the matter. The parties agreed that no hearing was necessary and that the Arbitrator could decide the matter based solely on written submissions.[11] The Agency submitted a brief, and the Union submitted a brief. The Agency also submitted a reply brief. After the Arbitrator closed the record, the Union submitted additional documents. The Arbitrator considered “all documents received and all arguments advanced by the parties.”[12]
Concerning the Arbitrator’s authority, the Union argued in its brief that Supreme Court precedent supported a conclusion that the arbitration procedure is unavailable.[13] The Union also argued that the Authority, not the Arbitrator, should determine whether the Arbitrator was properly chosen. The Arbitrator “reject[ed] th[e]se contentions hair, hoof[, ] and horn.”[14] The Arbitrator found that the CBA “provisions have post-expiration effect and survive change in union representation until new terms are negotiated”[15] and that “[n]o legitimate basis has been established in support of the Union’s assertions that this Arbitrator is not the proper neutral to hear and resolve this grievance.”[16] The Arbitrator also rejected the Union’s claims that he was not an impartial arbitrator because of the Arbitrator’s word choices and because the Arbitrator (1) “attempt[ed] to pile on unnecessary professional fees”;[17] (2) breached ethics rules; and (3) failed to recuse himself.
As to the grievance itself, the Union argued that the Agency’s grievance was procedurally deficient. As to the merits of the grievance, the Union argued, among other things, that the article in the newsletter was protected speech under the First Amendment as well as the Statute. Despite the phone conference, the Union also alleged that a hearing was necessary to address several factual issues.
Concerning the grievance, the Arbitrator found that the Agency had standing to submit the institutional grievance under the CBA and that the grievance was timely. Concerning summaries of potential witness testimony proffered in the Union’s brief, the Arbitrator found that, “[b]ased upon the summarization of the testimony provided, no information supplied by these witnesses would add to our learning or assist the Arbitrator in expeditiously resolving the issues...
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