The case went to arbitration, where the parties stipulated to the following issues: “[Did] the Agency violate[] Article 35 of the parties’ [agreement] when it did not assign [the overtime opportunity] to the [g]rievant? If yes, what shall be the remedy?”^[1] In addition, as relevant here, the Agency raised an issue regarding whether the Union was permitted to present “new issues” at the arbitration hearing when “the Union alleged a violation of a different section of the        [parties’ agreement] than the section the Union cited at [s]tep [two] of the grievance procedure.”^[2] In this regard, the Agency argued that the Union violated the specificity requirements of Article 27, Section 8.A. and 8.B. of the parties’ agreement because it: identified, on the Form 280, the unanticipated-overtime provision as the section of the parties’ agreement that the Agency allegedly violated; then argued, before the Arbitrator, that the Agency violated the anticipated-overtime provision. Article 27, Section 8.A. provides, in pertinent part, that “[a]ll issues raised under [s]tep [two] of this [a]rticle shall be identified in writing.”^[3] Section 8.B. states, in pertinent part, that “[i]ssues not raised and actions not requested in the initial filing of the [Form 280] may not be introduced at arbitration absent mutual agreement.”^[4] According to the Agency, these provisions barred the Union from raising an alleged violation of the anticipated-overtime provision at arbitration.

 

The Arbitrator disagreed, and found that the issue of whether the Agency violated the         anticipated-overtime provision was properly before her. She reasoned that the Agency “in effect waived the arbitrability argument” when it failed to respond to the Union’s step-one grievance and to provide the Union with the information that it had requested in that grievance.^[5] According to the Arbitrator, “[t]he Agency’s untimely and overall insufficient adherence to” the steps of the parties’ negotiated grievance procedure “directly and adversely affected the Union’s reliance on an alleged violation of [the unanticipated-overtime provision] when, in fact, the aggrieved incident involved             [anticipated overtime].”^[6] Therefore, the Arbitrator found that “the Union’s citation of [the unanticipated-overtime provision] . . . was not improper and did not obviate the Union’s right to amend its grievance at the arbitration.”^[7] And, on the merits, the Arbitrator found that the Agency violated the anticipated-overtime provision when it failed to award the grievant the overtime opportunity.

 

 

 

The Agency claims that the Arbitrator failed to provide a fair hearing because she deprived the Agency of notice and due process with respect to the Union’s anticipated-overtime claim.^[8] According to the Agency, “[h]ad the Union properly identified its grievance[,] the Agency would at least have been able to discuss the case with potential witnesses, and could have provided the exhibits to those witnesses so that they could intelligently defend the Agency.”^[9] The Union argues that the Agency failed to make a fair-hearing argument at arbitration.^[10] 

 

Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the arbitrator.^[11] Before the Arbitrator, the Union raised an anticipated-overtime claim, and the Agency challenged the arbitrability of that claim at the arbitration hearing.^[12] But there is no indication in the record that the Agency argued to the Arbitrator – either at the hearing or in the Agency’s post-hearing brief – that she would be denying the Agency a fair hearing if she resolved the Union’s claim. Because the Agency could have raised its fair-hearing argument before the Arbitrator, but did not do so, we dismiss this exception as barred by §§ 2425.4(c) and 2429.5.

 

 

                The Agency challenges the Arbitrator’s conclusion that the anticipated-overtime claim was properly before her on the grounds that:  (1) the award fails to draw its essence from the parties’ agreement; and (2) the Arbitrator exceeded her authority.^[13] We discuss these grounds separately below. However, as an initial matter, the Agency alleges that the Arbitrator’s conclusion was a substantive-arbitrability, not a procedural‑arbitrability, determination.^[14] As discussed above, the Arbitrator’s conclusion that the anticipated‑overtime claim was properly before her was based on her determination that the Agency effectively “waived” its arbitrability argument concerning the specificity requirements of the parties’ agreement when it failed to respond to the Union’s step-one grievance and to provide the Union with the information that it requested in that grievance.^[15]  

 

                Procedural arbitrability involves questions of whether a grievance satisfies a collective-bargaining agreement’s procedural conditions, while substantive arbitrability involves questions of whether the grievance’s subject matter is arbitrable.^[16] The Authority has consistently held that an arbitrator’s ruling on whether a grievance meets the specificity requirements of a collective-bargaining agreement is a procedural‑arbitrability determination.^[17] And the Authority has recently, and unanimously, confirmed that an arbitrator’s finding that a party has waived its challenge to a procedural-arbitrability determination is itself a procedural-arbitrability determination.^[18]

The dissent nevertheless claims that the Arbitrator’s decision that the Agency effectively waived its arbitrability argument does not concern procedural arbitrability.^[19] But the dissent neither attempts to distinguish Authority precedent concerning        procedural-arbitrability determinations nor cites any authority that conflicts with this precedent.^[20] Instead, the dissent cites decisions of the U.S. Supreme Court and U.S. Court of Appeals for the Tenth Circuit defining procedural arbitrability as addressing whether the parties have satisfied the prerequisites for arbitration.^[21]  But that precedent in no way suggests that an arbitrator’s determination that a party has waived its procedural‑arbitrability challenge is not itself a procedural-arbitrability determination.

Further, the Agency and the dissent rely on decisions regarding whether the subject matter of a grievance is arbitrable.^[22] Here, however, there is no dispute that, under the parties’ agreement, issues regarding the anticipated‑overtime provision may be submitted to arbitration.^[23] Thus, whether a potential violation of that provision is substantively arbitrable is not at issue in this case. Rather, the only arbitrability issue that the Agency raises is whether the Union failed to “take the steps necessary [under the parties’ agreement] to place the issue of anticipated overtime before the arbitrator.”^[24] Under the principles set forth above, this is a procedural-arbitrability – not substantive‑arbitrability – issue. And, by finding that the Agency effectively waived its procedural‑arbitrability challenge, and, therefore, that the Union was not precluded from alleging a violation of the          anticipated-overtime provision under the steps of the parties’ negotiated grievance procedure, the Arbitrator made a procedural‑arbitrability determination.   

 

The Authority generally will not find an arbitrator’s ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural‑arbitrability ruling itself, including a claim that an award fails to draw its essence from a      collective-bargaining agreement.^[25] However, a procedural‑arbitrability determination may be found deficient on grounds that do not directly challenge the determination.^[26] This includes claims that the arbitrator exceeded his or her authority,^[27] but only insofar as the exceeded-authority claim does not directly challenge the procedural-arbitrability determination.^[28]

 

 

The Agency argues that the award fails to draw its essence from the parties’ agreement because the Arbitrator’s finding that the anticipated-overtime claim was properly before her “ignored every contractual limitation on what issues may be heard and what the award may address.”^[29]  This essence argument directly challenges the Arbitrator’s procedural-arbitrability determination and, consistent with the principles set forth above, provides no basis for finding the award deficient.^[30]  Accordingly, we deny the Agency’s essence exception.

 

 

The Agency argues that, for two reasons, the Arbitrator exceeded her authority.^[31] 

 

First, the Agency claims that the Arbitrator disregarded specific limits on her authority when she ignored provisions of the parties’ agreement mandating that “an arbitrator’s award will be limited to those issues included on the . . . Form 280.”^[32] In support of its position, the Agency cites U.S. Department of Transportation, FAA (FAA).^[33]  But the Agency’s claim regarding the parties’ agreement directly challenges the Arbitrator’s procedural-arbitrability determination and, as such, does not provide a basis for finding the award deficient.^[34]  Further, the Agency’s reliance on FAA is misplaced. In the portion of FAA that the Agency cites, the Authority found that an arbitrator exceeded her authority when she resolved a merits issue that the parties had not submitted to arbitration.^[35] Here, the Agency expressly put before the Arbitrator the               procedural-arbitrability question that she resolved.^[36] Thus, FAA is inapposite.

 

Second, the Agency alleges that the Arbitrator resolved an issue not submitted to arbitration when she ruled on whether the Agency violated the         anticipated-overtime provision.^[37] An arbitrator exceeds his or her authority when he or she resolves an issue not submitted to arbitration.^[38] Here, as discussed previously, the Arbitrator resolved the question that the Agency expressly put before her – whether the Union could properly raise an anticipated-overtime claim – and found against the Agency in this regard. The Agency has not shown that finding to be deficient. As a consequence, the Arbitrator properly ruled on whether the Agency violated the anticipated-overtime provision, and the Agency’s exception does not demonstrate that the Arbitrator exceeded her authority by doing so.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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