72 FLRA No. 107

 

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

____

 

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

(Agency)

and
 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 147

(Union)
 

0-AR-5679

 

_____

 

DECISION

 

December 13, 2021

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

 

1. Statement of the Case

 

Arbitrator Jeff J. Minckler found that the Union’s grievance was procedurally arbitrable and issued an award addressing the merits of the grievance.  The Agency filed exceptions to the award on essence, fair-hearing, and exceeds-authority grounds.  Because the Arbitrator’s procedural-arbitrability determination is not a plausible interpretation of the parties’ collective-bargaining agreement, we grant the Agency’s essence exception and set aside the award. 

 

2. Background and Arbitrator’s Award

 

As relevant here, Article 24 of the parties’ agreement provides that “a grievance concerning a particular act . . . must be presented . . . within fifteen (15) working days of the action.”[1]  The provision also states that the grievance must contain “an original signature at filing.”[2]

 

In December 2018, the Agency suspended an employee for two days, effective in January 2019.  The Union timely grieved the suspension, and the Agency acknowledged receipt of the grievance.  On January 10, 2019, the Union sent a written presentation to an Agency representative which trigged a deadline of ten business days for the Agency’s answer to the grievance (answer).[3]  Eight days later, the Agency issued an answer, stating that because “this grievance is excluded from the grievance process and does not have the required wet signature, I deny it and all request[ed] relief.” [4]  The answer also denied the grievance on the merits.  The Union subsequently invoked arbitration.

 

Before the merits hearing, the parties agreed to bifurcate the issue of arbitrability and submitted briefs to the Arbitrator on that issue.  The Agency argued that the grievance was not arbitrable because “the Union failed to comply with the [parties’ agreement] by not filing a signed grievance,” and because it “never attempted to correct this deficiency.”[5]  The Agency further argued that because the Union failed to perfect its grievance, it did not file a timely grievance.  The Union contended that it timely submitted its grievance in December 2018 and that “[a]ny effect or deficiency related to signature ha[d] been effectively waived and accepted by the Agency.”[6]

 

            Regarding the waiver issue, the Arbitrator noted that the Agency accepted the grievance and processed it through the normal steps of the negotiated grievance procedure.  However, he also found that the Agency raised the issue of the absence of an original signature in a timely manner under the parties’ agreement.  And relying on a prior arbitration decision interpreting similar arbitrability issues between the parties, the Arbitrator found that the Agency’s actions amounted to a waiver. 

 

In support of this conclusion, the Arbitrator found that “public policy favors processing and resolving grievances rather than disregarding [grievances] due to harmless technicalities”[7] and that the parties’ agreement “empowers and requires an arbitrator to ensure the purpose of the grievance procedure is fulfilled.”[8]  He concluded that “the scales tip in favor of arbitration on the merits.”^[9]  Consequently, he found the grievance arbitrable and proceeded to a hearing on the merits.[10] 

 

The Agency filed exceptions to the award on November 27, 2020.  The Union filed an opposition to the Agency’s exceptions on December 28, 2020.

 

3. Analysis and Conclusion:  The Arbitrator’s procedural-arbitrability determination fails to draw its essence from the parties’ agreement.

 

The Agency argues that the Arbitrator’s waiver determination is not a plausible interpretation of Article 24, Sections 6 and 14 of the parties’ agreement.[11]  It further argues that the Arbitrator showed a manifest disregard for the parties’ agreement when he relied on a presumption of arbitrability to ignore the requirement for an original signature in the parties’ agreement.[12]  The Authority will find that an arbitration award is deficient as failing to draw its essence from the collective-bargaining agreement when the appealing party establishes that the award:  (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.^[13] 

 

As noted, Article 24 provides that the Agency must raise arbitrability issues “prior to the limit for the written answer in the final step of this procedure.”[14]  The Arbitrator found that the Agency complied with this provision.[15]  Moreover, it is undisputed that the Union neither complied with Article 24’s requirement that the grievance contain an original signature nor attempted to cure the grievance’s procedural deficiency.[16] 

 

Although he found that the Agency raised the procedural‑arbitrability issue in a timely manner,[17] the Arbitrator relied on an earlier arbitration award to find that the Agency waived its right to raise a procedural-arbitrability objection because it did not reject the grievance.[18]  However, the Arbitrator did not explain how the Agency’s actions amounted to a waiver when it had met the contractual deadline to raise the arbitrability issue.  Moreover, while an arbitrator may consider prior arbitration awards, such awards are not precedential.[19]  Because the Arbitrator’s waiver finding conflicts with the plain wording of the parties’ agreement, and is not based on any findings that the Agency subsequently abandoned its objections to the grievance’s arbitrability, we conclude that his waiver finding is not a plausible interpretation of the parties’ agreement.[20]  And because there is no dispute that the Union’s grievance did not comply with Article 24 of the parties’ agreement, we grant the Agency’s essence exception and set aside the award.[21]^{, [22]}

 

IV.       Decision

 

            We set aside the award.