U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 0-AR-3425, June 14, 2002, 57 FLRA No. 182.

In a split decision, Member Pope dissenting, the Authority held that an arbitrator may not use the negotiated grievance and arbitration procedure to collect fees that he believes are owed to him by suggesting that a party to the agreement file a grievance on the arbitrator's behalf. It accordingly set aside an award in which arbitrator B sustained a union grievance (filed at the suggestion of arbitrator A) claiming that the agency had violated the agreement when it didn't fully compensate arbitrator A for an award he had rendered.

In May 21, 1999, arbitrator A sustained a union grievance involving use of official time by the union president and ordered the agency to delete an AWOL notation and make the grievant whole for the five hours in dispute. Inasmuch as the collective bargaining agreement (CBA) required the losing party to pay all the fees and expenses , the arbitrator billed the agency $9,199.60 for the 10 days he spent in researching and writing the award. The agency attempted to negotiate a lesser amount. When the arbitrator refused, the agency sent him a check for $4,354.60, which represented payment for 3 days for researching and writing the award.

In a letter to the parties, dated July 6, 1999, the arbitrator suggested that the union seek agency payment for the balance of the bill "plus interest . . . and reimbursement for my time and expenses spent in collecting this bill" by advancing the arbitrator's claim through the negotiated grievance procedure. Although the union filed the grievance, claiming the agency violated the CBA by not fully compensating the arbitrator for his services, that grievance never went to arbitration.

But on June 21, 2000, the union filed a second grievance concerning the agency's refusal to fully compensate the arbitrator, and this grievance went to arbitration before arbitrator B who, in the words of FLRA, "ordered that the grievance was granted." The agency filed exceptions, claiming, among other things, that arbitrator B exceeded his authority because the union didn't have standing to file the grievance and because relief was granted to arbitrator A, who isn't in the bargaining unit and not a party to the collective bargaining agreement.

FLRA, Member Pope dissenting, construed the agency's "exceed authority" exception "as an assertion that the grievance was not arbitrable as a matter of law." It said the following:

[T]his case presents the following issue of first impression: whether an arbitrator may, by suggesting that a party file a grievance on his behalf under the parties' collective bargaining agreement, use the negotiated grievance and arbitration procedures established by the Statute to collect fees that he believes are owed to him.

It concluded that "such use of the Statute's processes is not authorized by the Statute and, therefore, the grievance was not arbitrable as a matter of law." The majority found the U. S. Claims Court decision in Ables v. United States, 2 Cl. Ct. 494 (1983) "instructive." In that case, the court held that an interest arbitrator, who had filed a lawsuit as a third-party beneficiary of a CBA between the agency and a union, lacked standing to sue as a third-party beneficiary. In the court's view, the CBA wasn't entered into for the primary purpose of benefiting arbitrators. Since the interest arbitrator's services had been procured by a purchase order contract executed by the arbitrator and the agency, the arbitrator's enforceable rights emanated, not from the CBA, but from his contract for arbitration services with the agency.

Focusing on the primary purpose of the CBA, the majority said the following:

As the court stated in Ables, the primary purpose of a collective bargaining agreement between a union and an agency is to resolve certain disputed issues, not to benefit arbitrators. The negotiated grievance and arbitration procedures mandated by the Statute were designed by Congress to resolve disputes between the parties to the collective bargaining agreement. The dispute in this case is not between the Agency and the Union; it is between the Agency and Arbitrator [A].

[I]n the unique circumstances of this case, we conclude that insofar as the grievance constituted an attempt to advance a claim on behalf of Arbitrator [A] to resolve a fee dispute that he had with the Agency, the grievance was not arbitrable. Consequently, Arbitrator [B] had no authority to resolve that dispute . . . We simply hold that [Arbitrator A's] attempt to resolve his dispute with the Agency was not one that is permitted under the grievance and arbitration framework established by Congress. Therefore, the grievance was not arbitrable as a matter of law.

In her dissent, Member Pope took issue with the majority's "construction" of the agency's "exceed authority" exception as a claim that the award conflicted with law. "This is not an argument made by the Agency;" said Member Pope: "it is an argument made by the majority for the Agency." Moreover, in her view the Ables decision "has nothing to do with this case" because in Ables the arbitrator sought to enforce in court a CBA to which he was neither a party nor third-party beneficiary, whereas in the case at bar the union--a party to the CBA--seeks to enforce the agreement.