United States, Department of Veterans Affairs, Veterans Affairs Medical Center, Phoenix, Arizona (Respondent) and American Federation of Government Employees (Charging Party) (Authority decision, November 16, 2004)

Final FLRA decision. This unfair labor practice order dismisses the complaint and resolves the case before the Authority. Under 5 U.S.C. § 7123(a), an aggrieved party generally has 60 days from issuance to seek judicial review. A review petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

A Phoenix VA medical center canceled an employee's suspension before a scheduled arbitration hearing and restored his lost pay and benefits. Its representatives appeared at the hearing to challenge the arbitrator's jurisdiction, then left; the arbitrator continued and issued an award. A complaint alleged that the medical center unlawfully refused to participate in arbitration. The Authority dismissed the complaint because the center had helped arrange the hearing, appeared, and filed a later brief, while the union was able to present its case and obtain an award. Chairman Cabaniss dissented, saying the case should return for a finding on whether the center denied the arbitrator's authority to decide any issue at all.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(8), and 7121.
• Outcome: Complaint dismissed; no unfair labor practice found on this record.
• Key point: The medical center's departure did not prevent the hearing or the arbitrator's decision.

Full text (FLRA public release)

[ v60
p405 ]

60 FLRA No. 81

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

PHOENIX, ARIZONA

(Respondent)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

(Charging Party)

DE-CA-03-0302

_____

DECISION AND ORDER

November 16, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on an exception to a decision of the Administrative Law Judge (Judge) filed by the Charging Party. The Respondent filed an opposition to the Charging Party's exception.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to participate in an arbitration proceeding. The Judge granted the Respondent's Motion for Summary Judgment and denied the General Counsel's Cross-Motion for Summary Judgment, finding that the Respondent did not violate the Statute by departing an arbitration hearing after entering a special appearance to challenge the arbitrator's jurisdiction. Accordingly, the Judge dismissed the complaint.

Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons set forth below, that the Respondent did not commit the unfair labor practices alleged in the complaint, and we dismiss the complaint.

II. Background and Judge's Decision

The Charging Party filed a grievance concerning a 30-day suspension of a unit employee. The parties were unable to resolve the grievance and agreed to submit it to arbitration. The Respondent provided a room for the hearing and arranged for a court reporter. Prior to the arbitration hearing, the Respondent canceled the grievant's suspension and informed him that all of his lost pay and benefits would be restored. Due to its cancellation of the suspension, the Respondent notified the Charging Party and the arbitrator that it considered the arbitration hearing unnecessary. In this regard, the Agency asserted that the matter submitted to arbitration was "resolved" by the cancellation of the suspension and that "there was nothing currently before [the arbitrator] to decide." Attachments, Exhibit 11 at 1. The Union objected to the Respondent's action, claiming that the Respondent could not unilaterally cancel the arbitration hearing. The arbitrator agreed with the Charging Party and determined that the hearing would proceed as scheduled.

Two of the Respondent's representatives attended the arbitration hearing, entering a "special appearance" for the purpose of contesting the arbitrator's jurisdiction and then departing. Judge's Decision at 4-5. The arbitrator proceeded with the hearing and the Charging Party presented its testimony and evidence. Both parties submitted post-hearing briefs, and the arbitrator issued an award, sustaining the Charging Party's grievance and ordering the Respondent to pay the grievant for all lost pay and benefits. [n2] Based on the Respondent's action of departing the hearing, the General Counsel (GC) issued a Complaint and Notice of Hearing, alleging that the Respondent refused to participate in the arbitration proceeding, thereby violating § 7116(a)(1) and (8) of the Statute. See Complaint at 2-3.

Before the Judge, the GC provided Authority decisions where parties were found to have violated the Statute by failing to participate in "one or more aspects of the arbitration process[.]" Judge's Decision at 7. However, the Judge determined that in these decisions, "the respondent either interfered with or prevented the charging party's exercise of its right to obtain an award by an [a]rbitrator or failed to meet an affirmative obligation." Id. at 8. The Judge found that, "[h]ere, there is no indication [ v60 p406 ] that the Union was in any way impeded in the presentation of its case or that the [a]rbitrator was prevented from reaching a decision." Id.

The Judge concluded that the Respondent did not violate the Statute, granted the Respondent's Motion for Summary Judgment, denied the GC's Motion for Summary Judgment, and dismissed the complaint. Id. at 6-8.

III. Positions of the Parties

A. Charging Party's Exceptions

The Charging Party claims that the Respondent violated § 7116(a)(1) and (8) of the Statute by failing to "fully participate" in the arbitration proceeding. Exceptions at 2. As support for this argument, the Charging Party cites to Dep't of the Army, 83rd United States Army Reserve Command, Columbus, Ohio, 11 FLRA 55 (1983) (Army Reserve Command). Id. The Charging Party acknowledges that the Respondent participated in the arbitration hearing by entering a "special appearance" to contest the arbitrator's jurisdiction, but asserts that "subsequent events[,]" such as the Respondent's failure to perform the remedial actions ordered by the arbitrator and failure to pay the arbitrator, demonstrate the Respondent's continued unwillingness to participate in the grievance process. Id. at 2-3. The Charging Party states that the Respondent's failure to pay the arbitrator and to perform the remedial actions ordered by the arbitrator are the subjects of separate unfair labor practice charges. [n3] See id.

The Charging Party references Chairman Cabaniss' concurring opinion in VA, Phoenix, and states its agreement that "a party refuses at its peril to take part in an arbitration proceeding, and . . . such conduct amounts to an unfair labor practice." VA, Phoenix, 59 FLRA at 571 (citation omitted). [n4]

B. Respondent's Opposition

The Respondent disputes the Charging Party's contention that it did not participate in the arbitration proceeding. In this regard, the Respondent contends that it joined the Charging Party in selecting an arbitrator, provided a room for the hearing, rescheduled the court reporter, and appeared at the hearing.

In addition, the Respondent contests the Charging Party's allegation that the Respondent's failure to comply with the arbitrator's remedial actions or pay the arbitrator's fees demonstrates the Respondent's refusal to participate in the grievance process. Specifically, the Respondent argues that, pursuant to § 2429.5 of the Authority's Regulations, the Authority should not consider these allegations because they were not raised by the Charging Party or the General Counsel and were not addressed by the Judge. Further, regarding the separate unfair labor practice charges concerning these issues, the Respondent asserts that the Authority declined to issue a complaint in connection with the charge that the Respondent failed to pay the arbitrator's fees.

The Respondent notes Chairman Cabaniss' concurrence in VA, Phoenix and contends that "this statement was a sua sponte recitation of the holding in [Dep't of Labor, Employment Standards Admin./Wage & Hour Div., Wash., D.C., 10 FLRA 316 (1982) (DOL)] . . . [and] was not based on the consideration of evidence or argument presented by either party in connection with this matter." Opposition at 8.

IV. Analysis and Conclusions

The Authority has held that an agency's refusal to participate in an arbitration proceeding pursuant to a negotiated grievance procedure conflicts with § 7121 of the Statute and therefore constitutes a violation of § 7116(a)(1) and (8). See Army Reserve Command, 11 FLRA at 56; DOL, 10 FLRA at 320;. In this regard, the Authority has noted that a party's refusal to participate in an arbitration proceeding results in the "obstruction" of the grievance resolution process, contrary to the mandate and intent of Congress in enacting § 7121. [ v60 p407 ] Headquarters, Dep't of the Army, Wash., D.C., 22 FLRA 647, 651 (1986) (Headquarters, Army); see also DOL, 10 FLRA at 321.

Here, the Respondent did not refuse to participate in the arbitration proceeding. The Respondent agreed to submit the parties' dispute to arbitration, participated in selecting the arbitrator, provided a room for the arbitration hearing, and arranged for a court reporter. As acknowledged by the Charging Party, the Respondent participated in the hearing by making a "special appearance" to challenge the arbitrator's jurisdiction. Exceptions at 2. The Respondent also filed a post-hearing brief with the arbitrator. See Judge's Decision at 5.

Further, the Respondent's actions did not hinder or obstruct the grievance resolution process. After the Respondent's departure, the arbitrator continued with the proceeding, hearing the Charging Party's evidence and testimony. Subsequently, the arbitrator issued an award sustaining the Charging Party's grievance. Based on the foregoing, the Charging Party has not demonstrated that the Respondent refused to participate in the arbitration proceeding or that the Respondent's actions resulted in the "hindrance or obstruction of grievance resolution by binding arbitration[.]" Headquarters, Army, 22 FLRA at 650.

In arguing that the Respondent refused to participate in the arbitration proceeding, the Charging Party relies on Army Reserve Command, where a scheduled arbitration hearing never took place because the respondent refused to participate in the hearing and considered it canceled. In Army Reserve Command, as in other decisions where the Authority has found that a party refused to participate in an arbitration proceeding, the respondent's refusal to participate actually obstructed resolution of the grievance. See, e.g., Dep't of the Air Force, Langley Air Force Base, Hampton, Va., 39 FLRA 966, 969 (1991); Am. Fed'n of Gov't Employees, Local 1457, 39 FLRA 519 (1991); Headquarters, Army, 22 FLRA at 650; and Am. Fed'n of Gov't Employees, Local 2782, AFL-CIO, 21 FLRA 339 (1986). Nothing in Army Reserve Command, or the authority cited in that case, indicates that a party such as the Respondent here, who takes the position that an arbitrator lacks jurisdiction over a matter, but nevertheless does not impede the arbitration and disposition of the case, violates the Statute. See Army Reserve Command, 11 FLRA at 56 (citing DOL, 10 FLRA at 320-32). [n5] As the Respondent's conduct here did not obstruct the resolution of the grievance, the Charging Party's reliance on Army Reserve Command is misplaced.

As additional support for its claim that the Respondent refused to participate in the arbitration proceeding, the Charging Party alleges that the Respondent failed to perform the remedial actions ordered by the arbitrator and to pay the arbitrator. See Exceptions at 2. As argued by the Respondent, 5 C.F.R. § 2429.5 bars the Authority from considering evidence that was not presented in the proceedings before the Judge. Based on the record, there is no evidence that the above-referenced facts were presented in the proceeding before the Judge. Therefore, such facts are not properly before the Authority. [n6] See United States Dep't of Health & Human Servs., Pub. Health Serv., Indian Health Serv., Quentin N. Burdick Mem'l Health Care Facility, Belcourt, N.D., 57 FLRA 903, 906 (2002).

Based on the foregoing, the Charging Party has failed to demonstrate that the Judge erred in finding that Respondent did not violate § 7116(a)(1) and (8). Accordingly, we deny the Charging Party's exception.

V. Order

The complaint is dismissed.

File 1: Authority's Decision in 60
FLRA No.
81

File 2: Opinion of Chairman Cabaniss

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 81

• Authority's Decision

Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 81

• Authority's Decision

The Respondent filed exceptions to this award and the Authority found that it was precluded from reviewing the exceptions by
§§ 7121(f) and 7122(a) of the Statute. See United States Dep't of Veterans Affairs, Carl T. Hayden Med. Ctr., Phoenix, Ariz., 59 FLRA 569 (2004) (Chairman Cabaniss concurring) (VA, Phoenix).

Footnote # 3 for
60
FLRA No. 81

• Authority's Decision

The Regional Director declined to issue a complaint regarding the Respondent's alleged failure to pay the arbitrator's fees (DE-CA-04-0212), and the General Counsel denied the Charging Party's appeal of this action. In addition, the Charging Party asserts that the Regional Director issued a complaint regarding the Respondent's alleged failure to perform the remedial actions ordered by the arbitrator. See Exceptions at 2-3. The Charging Party does not include the docket number, the charge, or the complaint in its filings. Review of the Authority's records indicates that the only charge other than the instant charge and DE-CA-04- 0212 involving these parties and this arbitrator concerned the Respondent's failure to pay an award of attorney fees ordered by the arbitrator (DE-CA-04-0405). This charge was subsequently withdrawn.

Footnote # 4 for
60
FLRA No. 81

• Authority's Decision

Chairman Cabaniss stated:

Finally, it merits restating, as the Arbitrator noted, that a party refuses at its peril to take part in an arbitration proceeding, and that such conduct amounts to an unfair labor practice. Dep't of Labor, Employment Standards Admin./Wage and Hour Div., Washington, D.C., 10 FLRA 316 (1982). However, the Agency's unfair labor practice from its refusal to take part in the arbitration proceeding also was never raised.

59 FLRA at 571.

Footnote # 5 for
60
FLRA No. 81

• Authority's Decision

Member Pope notes that the dissent's reliance on DOL to conclude that the complaint should be remanded is misplaced. While DOL indicates that a party's failure to pay a relevant portion of arbitral expenses would obstruct the arbitration process and, as a result, violate the Statute, see 10 FLRA at 321, nothing in DOL even hints that merely challenging jurisdiction (on any basis), without more, could ever violate the Statute.

Footnote # 6 for
60
FLRA No. 81

• Authority's Decision

As noted in footnote 3, supra, these matters were the subject of separate unfair labor practice charges filed by the Union and were appropriately resolved in that forum.

[ v60
p408 ]

Dissenting Opinion of Chairman Cabaniss:

I write separately to explain why I would remand this case for further proceedings. While I agree that the Respondent indeed took part in a variety of activities surrounding the arbitration proceedings, I do not find that conduct to be dispositive in and of itself. Rather, and consistent with the court decision in Ables v. United States, 230 Ct. Cl. 863 (Ct. Cl. 1982) (Ables), and its impact on Authority precedent beginning with Dep't of Labor, Employment Standards Administration/Wage and Hour Div., Wash., D.C., 10 FLRA 316 (1982) (DOL), I would resolve the case based upon whether in effect the Respondent is asserting that the Arbitrator in the underlying case has no authority to resolve any issue the Union is attempting to resolve through the arbitration process, to include questions of arbitrability.

Section 7121(a) mandates that questions of arbitrability must be submitted to the arbitrator for resolution. Or, more specifically, "the Authority has held that a refusal by one party to participate in the procedures for the resolution of grievances, including questions of arbitrability, conflicts with the requirements of § 7121." United States Dep't of the Air Force, Headquarters 92nd Air Refueling Wing, Fairchild AFB, Wash., 59 FLRA 434, 435 (2003), citing to, inter alia, DOL, 10 FLRA at 321. In DOL, the Authority noted that "it would be anomalous for Congress to have required agencies and unions to include provisions for binding arbitration . . . if it were not contemplated that both parties would participate therein and share the costs thereof." Id. at 320-21. The Authority then noted the chilling impact from the Ables decision if one party did not proceed to arbitration and thus agreed to be subject to the requirement to help pay for the arbitration proceedings. While parties can indeed have a "loser pays" arbitration fee agreement, that consideration is not at play here.

From the above discussion I conclude that "participating" in arbitration proceedings includes more than just filing a brief or helping set up the arbitration hearing proceedings, it also includes the submission to the arbitrator's jurisdiction to resolve the matter, to include the sharing of the arbitrator's expenses (submitting to the jurisdiction of the arbitrator includes agreeing that one has a financial responsibility to help pay for the proceedings). Thus, there are two ways that a party may be found to have not participated in an arbitration proceeding. One way a party can not participate is to sabotage or frustrate the arbitration process (what the Judge looked at) while still not challenging the authority of the arbitrator to act upon the dispute or disagreeing with the arbitrator's right to bill the party for its share of the arbitration costs. Another way a party can not participate in arbitration proceedings is to not agree to the authority of the arbitrator to exercise any responsibility at all over the matter in dispute, to include challenging the arbitrator's right to issue any decision that would be binding on the party, or (as in the Ables decision) to dispute the authority of the arbitrator to bill the party for its share of the arbitration costs.

Clearly, parties can dispute whether an issue is properly before an arbitrator and not commit an unfair labor practice, but that ability to dispute the arbitrability of an issue does not extend to asserting that the arbitrator has no authority to resolve the matter. As noted, supra, questions of arbitrability must be resolved by the arbitrator, and I see no distinction drawn between arbitrability questions tied to whether an issue is properly before the arbitrator vs. arbitrability questions challenging the authority of the arbitrator to even issue a decision.

Thus, it is one thing for the Respondent to show up and not contest the authority of this Arbitrator to hear and act upon the case by asserting that the underlying 30-day suspension is moot and thus there is nothing for the Arbitrator to grant any remedy upon: in those circumstances I would find no violation of the Statute. However, it would be something else for the Respondent to argue that the Arbitrator is without jurisdiction to proceed -- even to decide that the original underlying case has become moot -- because the Arbitrator has no authority from the parties (or at least from the Respondent) to resolve this matter: I would find that to be a violation of the Statute. It would be by claiming that the Arbitrator lacked the authority to act upon anything, by virtue of having no authority from the Respondent to do so, that would cause the Respondent to run afoul of the 10 FLRA 316 decision, even though the Respondent engaged in the activities noted by the Judge.

I note that the Judge's decision, at page 4, references conduct by the Respondent (asking for the final bill to be sent) that seems to indicate that the Respondent no longer considered the Arbitrator to be empowered to act upon the case. Because the answer to the question posed (whether the Respondent is asserting that the Arbitrator has no right to resolve any issue vs. whether the Respondent is just asserting that the 30-day suspension is moot and thus there is no personnel action before the Arbitrator to act upon) is not apparent from the Judge's decision, I would remand the case for further proceedings to resolve that question. [*]

File 1: Authority's Decision in 60 FLRA No. 81

File 2: Opinion of Chairman Cabaniss

File 3: ALJ's Decision

Footnote * for
60
FLRA No. 81

• Opinion of Chairman Cabaniss

As for whether "nothing in DOL even hints that merely challenging jurisdiction (on any basis), without more, could ever violate the Statute[,]" to quote footnote 5 in the majority opinion, DOL notes that it violates § 7121 of the Statute when a party refuses "to participate in the `procedures for the settlement of grievances, including questions of arbitrability[.]'" DOL, 10 FLRA at 321. I know of no greater manner of not participating in the "procedures" of § 7121 than to assert that the arbitrator has no jurisdiction over the parties, and thus no authority to render a decision on the arbitrability question.

[ v60
p409 ]

Office of Administrative Law Judges

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

PHOENIX, ARIZONA

Respondent

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

Charging Party

Case No. DE-CA-03-0302

Michael Farley, Esq.

For the General Counsel

Before: PAUL B. LANG

Administrative Law Judge

DECISION ON MOTIONS

FOR SUMMARY JUDGMENT

Statement of the Case

On February 20, 2003 [n1] , the American Federation of Government Employees, Local 2382 (Union) filed an unfair labor practice charge against the Department of Veterans Affairs, Veterans Affairs Medical Center, Phoenix, Arizona (Respondent). On September 30, 2003, the Regional Director of the Denver Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that the Respondent committed an unfair labor practice in violation of § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by failing to participate and cooperate in arbitration proceedings. A hearing was set for January 15, 2004.

After having answered the Complaint the Respondent filed a motion for summary judgment and stay of proceedings; the General Counsel responded by filing a cross-motion for summary judgment and the Respondent filed a response in opposition to the motion of the General Counsel. The Chief Administrative Law Judge granted the joint motion of the parties to indefinitely postpone the hearing pending consideration of the outstanding motions.

Positions of the Parties

The General Counsel maintains that the Respondent failed to participate and cooperate in arbitration proceedings when its representatives left the arbitration hearing after stating that they were making a "special appearance" for the sole purpose of challenging the jurisdiction of the Arbitrator. According to the General Counsel, the Respondent should at least have ensured that its representatives were present throughout the hearing.

The Respondent maintains that its actions did not amount to an unfair labor practice because it neither delayed nor otherwise impeded the arbitration process. The Respondent further argues that the General Counsel is not entitled to question the Respondent's strategy and, by so doing, is attempting to interfere with the Respondent's exercise of its management rights within the meaning of § 7106 of the Statute. The Respondent argues that, if the Union felt that the Arbitrator's award was flawed by the absence of the Respondent's representatives at the hearing, it should have filed exceptions to the award.

Finally, the Respondent argues that the filing of the underlying unfair labor practice charge is no more than a tactic by the Union to advance a claim for attorney's fees.

Findings of Fact

The pertinent facts, as set forth below, are undisputed:

1. The Respondent is an "agency" as defined in § 7103(a)(3) of the Statute.

2. The Union is a "labor organization" as defined in § 7103(a)(4) of the Statute and is the exclusive representative of a unit of employees of the Department of Veterans Affairs (VA) which includes employees of the Respondent and which is suitable for collective bargaining.

3. By memorandum of August 23, 2002, Paul H. West, the Respondent's Associate Medical Director, informed Lee A. Dawson, a member of the bargaining unit, that he would be suspended from September 3, 2002, through October 2, 2002.

4. By memorandum of September 5, 2002, from Randy Brumm, the President of the Union, to West, the Union submitted a grievance on behalf of Dawson.

5. The grievance was denied by the Respondent at various steps after which the Union requested that it be [ v60
   p410 ] referred to arbitration. The parties selected Sherman B. Kellar to be the Arbitrator. By letter dated December 22, 2002, to counsel for the respective parties the Arbitrator confirmed that the hearing would be held on February 18, 2003, at a location to be selected by the parties. The Respondent provided a room for the hearing and arranged for the presence of a court reporter.

6. On February 7, 2003, Victoria Holbrook, a representative of the Respondent, sent an e-mail message to Brumm containing a list of nine employees who had been informed by the Respondent that their testimony would be required at the arbitration hearing. The Union did not send such a list to the Respondent.

7. By memorandum of February 13, 2003, West informed Dawson that his suspension was cancelled and that all of his lost pay and benefits would be restored.

8. By telefaxed letter dated February 13, 2003, Patricia L. Howe, Staff Attorney for VA, on behalf of Gregory G. Ferris, Regional Counsel for VA, informed the Arbitrator that Dawson's suspension was being withdrawn, that the arbitration hearing would no longer be necessary and that the court reporter had been cancelled. The Arbitrator was asked to submit a bill for the Respondent's half of his fees and expenses. The letter further stated that Minahan and Shapiro, PC, the law firm representing the Union, had been informed of the withdrawal of the suspension. Minahan and Shapiro, PC was shown as having received a copy of the letter by telefax.

9. On February 13, 2003, Barrie M. Shapiro of Minahan and Shapiro, PC telefaxed a letter to the Arbitrator, with copy by telefax to Howe, stating that the Respondent was not entitled to unilaterally cancel the arbitration hearing and that the Union desired to go forward with the hearing. On the same date, Howe reiterated the Respondent's position to the Arbitrator by means of a letter transmitted by telefax.

10. By letter dated February 14, 2003, to representatives of the respective parties the Arbitrator ruled that the Respondent was not entitled to unilaterally cancel the arbitration hearing and that the hearing would be held on February 18, 2003, as previously scheduled.

11. The arbitration hearing was held on February 18, 2003. Shapiro represented the Union. The Respondent was represented by Howe and Jeanne S. Morris. After the hearing was opened the Arbitrator asked Howe and Morris to be seated. Howe then stated that they were entering a special appearance for the sole purpose of challenging the Arbitrator's jurisdiction. The Arbitrator informed them that he had jurisdiction and that he would decide the matter based upon the evidence to be presented at the hearing. Howe and Morris thereupon left the room and the Union proceeded to submit testimony and documentary evidence.

12. Both the Union and the Respondent submitted post-hearing briefs to the Arbitrator.

13. On June 9, 2003, the Arbitrator issued an award in which he sustained the grievance and ordered that Dawson be made whole for all lost pay and benefits. The Arbitrator also ordered the Respondent to refrain from disciplining Dawson for the incident which gave rise to his suspension. The Respondent was further ordered to expunge references to the suspensions [n2] from Dawson's personnel records, to post an appropriate notice and to provide remedial training to supervisors. The Union's request for compensatory damages was denied.

14. On January 13, 2004, the Authority dismissed the Respondent's exceptions to the award on the grounds that the award could only be appealed to the United States Court of Appeals for the Federal Circuit in view of the fact that the arbitration proceedings were instituted in lieu of an appeal to the Merit Systems Protection Board (MSPB). Therefore, the award could only be reviewed as if it were a decision of the MSPB. [n3] There is no evidence that the Union sought review of the award.

15. By letter of August 29, 2003, the Regional Director of the Denver Region of the Authority informed Shapiro that the issuance of a complaint was not warranted with regard to an unfair labor practice charge that the Union had filed against the Respondent based upon the Respondent's notification to a bargaining unit employee that his testimony was no longer required at the arbitration hearing regarding Dawson's suspension. On December 18, 2003, the General Counsel dismissed the Union's appeal of the refusal of the Regional Director to issue a complaint. [ v60
    p411 ]

Discussion and Analysis

Summary Judgment is Appropriate in This Case

In Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995) the Authority held that the criteria for granting summary judgment under Rule 56 of the Federal Rules of Civil Procedure are to be used in considering motions for summary judgment submitted pursuant to § 2423.7 of the Rules and Regulations of the Authority.

Rule 56(c) provides that summary judgment is to be "rendered forthwith" if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Since each of the parties is relying on its own interpretation of the legal significance of undisputed facts, summary judgment is appropriate.

The Legal Framework

§ 7121 of the Statute requires that every collective bargaining agreement include procedures for the settlement of grievances; such procedures are to include binding arbitration which may be invoked either by the agency or the union. In Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, DC, 10 FLRA 316, 320 (1982) (Dept. of Labor) the Authority held that the failure of a party to proceed to and participate in arbitration is inconsistent with the intent of § 7121 and is an unfair labor practice in violation of § 7116(a)(1) and (8) of the Statute. Although the Authority has never defined the minimum requirements of participation, it has held that a party may proceed to arbitration on an ex parte basis, Dept. of Labor, 10 FLRA at 319 and that an Arbitrator's award is not rendered deficient by the refusal of a party to attend the hearing, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612 (Rinaldo, Arbitrator), 39 FLRA 117, 1123 (1991).

As set forth in the General Counsel's brief in support of its cross-motion, there are numerous cases in which parties have been held to have violated the Statute by their failure to participate in one or more aspects of the arbitration process, e.g., selection of the Arbitrator. I am, however, aware of no case (and none has been cited by the General Counsel) in which a party has been found to have violated the Statute solely by virtue of having left the arbitration hearing prior to its completion.

The Extent of the Duty to Participate

The General Counsel maintains that the duty to cooperate and participate in the arbitration process logically includes some degree of attendance and participation at the arbitration hearing. Assuming that the General Counsel is correct, his position begs the question of the degree of attendance and participation that is required. In his brief he states:

Counsel for the General Counsel proposes that a standard be applied which would require the parties to remain present throughout the arbitration hearing, unless the parties agree otherwise, or they waive any objections to their counterpart's absence from the hearing. Essentially, this would involve a minimum requirement that the parties attend the entire arbitration hearing, but with no obligation to call witnesses or otherwise present a case.

(GC Memorandum, 11)

That statement is a tacit admission that the General Counsel would have the Authority go beyond established precedent and establish a new standard for compliance with the intent of § 7121 of the Statute. The Authority is, of course, free to change or expand its construction of the Statute. An Administrative Law Judge, on the other hand, is not authorized to make or change policy and is bound by the precedent established by the Authority's decisions.

In each of the cases cited by the General Counsel, including Dept. of Labor [n4] , the respondent either interfered with or prevented the charging party's exercise of its right to obtain an award by an Arbitrator or failed to meet an affirmative obligation. [n5] Here, there is no indication that the Union was in any way impeded in the presentation of its case or that the Arbitrator was prevented from reaching a decision. As a practical matter, [ v60 p412 ] the position of the Union could only have been improved by the failure of the Respondent to cross-examine witnesses or to present evidence on its own behalf. The General Counsel's far-fetched assertions that the departure of the Respondent's representatives demonstrated contempt for the arbitration process is, in effect, a comment on the wisdom or appropriateness of the Respondent's strategy and amounts to no more than conjecture. [n6] It is not alleged, and the transcript of the arbitration hearing does not show, that the Respondent's representatives acted in a disrespectful or disruptive manner at the arbitration hearing. The most that can be said is that the Arbitrator and the Union's representatives were annoyed by the departure of the Respondent's representatives. It is difficult to imagine a rationale for the General Counsel's assertion that the failure of the Respondent's representatives to attend the entire hearing had any other effect on the Union.

The General Counsel maintains that the Respondent's conduct is the equivalent of action that was found to be unlawful in Department of the Army, 83rd United States Army Reserve Command, Columbus, Ohio, 11 FLRA 50 (1983). In the cited case the agency informed the Arbitrator that it considered the scheduled hearing to be cancelled and the hearing did not take place. That action is obviously different from that of the Respondent which provided a room for the hearing, rescheduled the court reporter and appeared at the hearing after the Arbitrator had rejected its jurisdiction argument.

This was not a situation in which the Respondent's representatives stormed out of the hearing or acted in a manner which could be expected to have intimidated the Union's representatives or witnesses. Rather, the Respondent took the position that the continued presence of its representatives at the hearing would have prejudiced its challenge to the jurisdiction of the Arbitrator. Whatever the merits of that position, it was one which the Respondent was entitled to take. To conclude otherwise would be to construe § 7121 of the Statute as limiting the right of a party to determine its own strategy in arbitration. There is nothing to indicate that the statutory language was intended to have such an effect.

The action of the Respondent in informing employees that they need not attend the arbitration hearing is of no consequence in this case in view of the fact that the General Counsel affirmed the refusal of the Regional Director to issue a complaint on the basis of that action. Furthermore, that incident is outside the scope of both the unfair labor practice charge and the complaint.

In view of the foregoing, I have concluded that the Respondent did not commit an unfair labor practice by causing its representatives to leave the arbitration hearing after expressing their challenge to the jurisdiction of the Arbitrator. Accordingly, I recommend that the Authority adopt the following Order:

ORDER

It is hereby ordered that:

1. The motion of the Respondent for summary judgment be, and hereby is, granted.

2. The cross-motion of the General Counsel for summary judgment be, and hereby is, denied.

3. The complaint be, and hereby is, dismissed.

Issued, Washington, DC, March 30, 2004.

______

PAUL B. LANG

Administrative Law Judge

File 1: Authority's Decision in 60 FLRA No. 81

File 2: Opinion of Chairman Cabaniss

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 81

• ALJ's Decision

The signature of the Union representative who signed the charge was dated February 20, 2002. This was obviously an error since the alleged unfair labor practice occurred after that date.

Footnote # 2 for
60
FLRA No. 81

• ALJ's Decision

Dawson had first been suspended for 10 days and later for 30 days for the same incident.

Footnote # 3 for
60
FLRA No. 81

• ALJ's Decision

The Authority's Order Dismissing Exceptions is set forth in United States Department of Veterans Affairs, Carl T. Hayden Medical Center, Phoenix, Arizona and American Federation of Government Employees, Local 2382 (Kellar, Arbitrator), 59 FLRA No. 10 (2004).

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FLRA No. 81

• ALJ's Decision

In Dept. of Labor the agency refused the union's request that the grievance be referred to arbitration, thus depriving the union of its rights under § 7121 of the Statute.

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FLRA No. 81

• ALJ's Decision

In Health Care Financing Administration, 22 FLRA 437, 439 (1986), a case cited by the General Counsel, the Authority noted that the result might have been different if the agency had signified its willingness to be bound by and share the costs of the Arbitrator's decision. In this case, the Respondent asked the Arbitrator to send a bill for its share of his fees and expenses. While the Respondent did not specifically state that it would be bound by the Arbitrator's decision, its appearance at the hearing and its subsequent filing of exceptions to the award imply that the Respondent might contest the award but would comply. Indeed, by reinstating Dawson, the Respondent had "complied" with much of the award before it was issued.

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FLRA No. 81

• ALJ's Decision

The General Counsel also contends that the presence of the Respondent's representatives would have been useful to ensure that its employees were available to attend the hearing. Yet, the General Counsel does not contend that its witnesses were unavailable.