2000 NAC 125 Federal Bureau of Prisons and AFGE Local 3379

Title: Federal Bureau of Prisons and AFGE Local 3379
Date: May 9, 2000
Arbitrator: Sandra Smith Gangle
Citation: 2000 NAC 125

In the Matter of the Arbitration                                         )
between                                                                             )
                                                                                          )          FMCS Case No. 99-09921
AMERICAN FEDERATION OF                                     )
GOVERNMENT EMPLOYEES,                                     )    PROCEDURAL ARBITRABILITY
            Council of Prison Locals, Local 3379            )                         ISSUE
                                                Union,                                  )            OPINION AND AWARD
                        and                                                               )
                                                                                              )
FEDERAL BUREAU OF PRISONS,                                )
            Correctional Institution at                                      )
            Sheridan, Oregon,                                               )
                                                Employer                               )
_________________________________________ )

Representing the Union:                   Tim DeBoltPresident,
                                                             Local 3979, AFGE
                                                             Federal Correctional Institution
                                                             P.O. Box 71
                                                             Sheridan, OR 97378

Representing the Employer:            William E. Branch
                                                            Labor Relations Specialist
                                                            Federal Bureau of Prisons
                                                            522 North Central Ave., Suite 247
                                                            Phoenix, AZ 85004

Arbitrator:                                           Sandra Smith Gangle
                                                             Sandra Smith Gangle, P.C.
                                                            117 Commercial St. N.E., Suite 310
                                                            Salem, OR 97301

This matter comes before the arbitrator pursuant to the Master Agreement between American Federation of Government Employees (AFGE), Council of Prison Locals (the Union), and the Federal Bureau of Prisons (hereafter “the Employer”), effective between March 9, 1998 and March 8, 2001.

A grievance was filed in this matter on or about December 23, 1998. The parties mutually selected Sandra Smith Gangle, Attorney at Law, 117 Commercial St. N.E., Suite 310, Salem, Oregon 97301, through selection procedures of the Federal Mediation and Conciliation Service, as the labor arbitrator who would conduct a hearing and render a decision in the matter. In a letter dated June 2, 1999, before a hearing date was assigned, the Union requested that the arbitrator hold the matter in abeyance until a prior grievance arbitration could be finally decided by the arbitrator in the case, Gary Axon. Specifically, the Union President wrote:

In fact, the grievance before you may fall under the jurisdiction of the previous arbitrator, Mr. Gary Axon, since it was filed during an arbitration appeal. I have requested Mr. Axon to clarify certain jurisdictional time frames and other issues that may be in conflict with the current grievance.

The Employer did not object to the Union’s request. The arbitrator granted the Union’s request.

In September of 1999, the Union notified the arbitrator that Arbitrator Axon had issued a Supplemental Award in the related matter, which is known as FMCS Case No. 97-16471 (Overtime Distribution Grievance). A copy of the Supplemental Award was enclosed with the Union’s letter. Since the Employer had filed an appeal of the Award with the Federal Labor Relations Authority, however, the case was still not finally resolved. Therefore, the Union asked the arbitrator to continue to hold this matter in abeyance. The Union’s letter, dated September 15, 1999, provided in pertinent part as follows:

Although it appears that the expanded time period of backpay will overlap the time period of the grievance before you, I ask that you continue to hold the Union grievance in abeyance until any agency appeals are exhausted. In the event that the agency appeal is successful, the grievance should then proceed to arbitration. If the appeal is denied or is not filed, the time frames established by Arbitrator Axon would encompass the subject grievance, and it would be withdrawn.

Again, there being no objection from the Employer, the arbitrator granted the Union’s request.
By letter dated January 10, 2000, the arbitrator asked the parties for an update on the status of the case. The Employer, asserting that the issue had been “covered by a prior arbitrator’s decision,” asked the arbitrator to dismiss the grievance as non-arbitrable or moot. The Union, however, asserted that it wished to go forward with the grievance and asked the arbitrator to set a hearing date.

The parties subsequently agreed that the arbitrator should decide the Employer’s arbitrability objection as a preliminary matter. They agreed to submit simultaneous written briefs on April 21, 2000, on the arbitrability issue alone. If the arbitrator were to find that the grievance had been fully resolved by the Axon Award and Supplemental Award, then the matter would be dismissed as moot. If, however, the arbitrator were to determine that the matter had not been resolved by the Axon Award, the grievance would go forward.

The parties’ briefs were submitted in a timely fashion and the arbitrator took the matter under advisement upon their receipt on April 24, 2000. The Employer’s representative is William E. Branch, Labor Relations Specialist, Federal Bureau of Prisons, Phoenix, Arizona. The Union is represented by Tim DeBolt, President of AFGE Local 3979, McMinnville, Oregon.

The parties agree that the issue before the arbitrator at this juncture is as follows:

Is the grievance procedurally arbitrable or shall it be dismissed as moot?

ARTICLE 18 – HOURS OF WORK

Section p. Specific procedures regarding overtime assignments may be negotiated locally.

Section d. Grievances must be filed within forty (40) calendar days of the date of the alleged grievable occurrence. If needed, both parties will devote up to ten (10) days of the forty (40) to the informal resolution process. If a party becomes aware of an alleged grievable event more than forty (40) calendar days after its occurrence, the grievance must be filed within forty (40) calendar days from the date the party filing the grievance can reasonably be expected to have become aware of the occurrence. A grievance can be filed for violations within the life of this contract, however, where the statutes provide for a longer filing period, then the statutory period would control.

Section e. If a grievance is filed after the applicable deadline, the arbitrator will decide timeliness as a threshold issue.

ARTICLE 32 – ARBITRATION

Section a. In order to invoke arbitration, the party seeking to have an issue submitted to arbitration must notify the other party in writing of this intent prior to expiration of any applicable time limit. The notification must include a statement of the issues involved, the alleged violations, and the requested remedy. . . . (T)he issues, the alleged violations, and the remedy requested in the written grievance may be modified only by mutual agreement.

Section h. The arbitrator’s award shall be binding on the parties. However, either party, through its headquarters, may file exceptions to an award as allowed by Statute.

The arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any of the terms of:

Master Agreement: Federal Bureau of Prisons and Council of Prison Locals, AFGE, effective March 9, 1998 to March 8, 2001 (Emphasis added).

The Employer’s Position: The Employer argues that the Axon Award precludes the arbitrator from hearing the instant case, on either a theory of mootness or res judicata. The instant grievance raises substantially the same issues as those that were raised and decided in the Axon arbitration, argues the Employer, and the remedy awarded by Arbitrator Axon covered the time period during which the instant grievance was filed. Therefore, the instant grievance should be dismissed as moot. In the alternative, the Employer contends the essential elements of res judicata are met, since (1) there was a final judgment on the merits regarding overtime; (2) the cause of action or claim is the same in both cases; and (3) the parties are the same. On either of those theories, contends the Employer, there is nothing new for this arbitrator to decide.

The Employer also argues that the Union should be estopped from pursuing its claim before this arbitrator, on the basis that it made certain representations, while the grievance was pending, that the new arbitration would be “negated” if Arbitrator Axon awarded a remedy encompassing the same period of time that was covered by the (instant) grievance. The Employer relies on letters that the Union sent to this arbitrator in June and September of 1999 as support for this argument. In the first of those letters, the Union stated, “The grievance before you may fall under the jurisdiction of . . . Mr. Gary Axon.” And in the second letter, the Union wrote, “If the appeal [of the Axon Award] is denied or not filed, the time frames established by Arbitrator Axon would encompass the subject grievance and it would be withdrawn.” In addition, the Union expressly stated in its July 16, 1999 letter to Arbitrator Axon, that a remedy covering the time period from February 18, 1991 through July 18, 1999, “would negate the second grievance.” Since the Supplemental Award of Arbitrator Axon did, in fact, award a remedy covering the precise time frame that the Union had requested in its July 16, 1999 letter, the second grievance must have been “negated”, in accordance with the Union’s own admission.

The Union’s Position: The Union denies that the instant grievance is moot or precluded by res judicata principles. Also, the Union denies that it should be estopped from pursuing the grievance, based on the representations it made in letters to this arbitrator and to Arbitrator Axon. While the Union acknowledges that it does not seek an Award in the instant case that would overlap the time period covered by Arbitrator Axon, it argues that the grievance before this arbitrator should be reactivated from its dormant state and should be allowed to cover events that occurred on and after July 19, 1999, right up to the present time.

The Union points out that the grievance before this arbitrator was framed as a “continuing violation”. Also, the Union asserts that the instant grievance deals with issues that were not before Arbitrator Axon, specifically, (1) whether supervisors were working overtime without offering it to bargaining unit members first; and (2) whether a local supplemental overtime agreement was being violated.[1] In the interest of expeditious processing, as allowed by Section 7121 of the Federal Service Labor-Management Relations Statute, as well as good labor relations and collective-bargaining principles, the grievance should go forward, argues the Union, in spite of any statements the Union president may have made while the Axon Award was pending.

The arbitrator’s role is to interpret and apply the terms of the parties’ collective bargaining agreement to the facts of the matter. The issue here is whether the grievance that was filed on December 23, 1998 has been rendered moot, or otherwise non-arbitrable, by the Award and Supplemental Award of Arbitrator Gary Axon in FMCS Case No. 97-16471.

The parties do not dispute that both cases involve overtime issues. The issue that was stated in the Axon case was whether the Employer had inequitably distributed and rotated overtime assignments in violation of the contract. Arbitrator Axon, by his decision dated June 8, 1998, found that the Employer had done so. Retaining jurisdiction, he remanded the case to the parties for their discussion regarding a compensatory remedy. The parties were unable to agree, however, on the time period that was covered by the award and for which a remedy would be fashioned.

Meanwhile, the Employer appealed the Axon Award to the Federal Labor Relations Authority. In a decision dated December 31, 1998, the Authority denied the appeal.

The Union ultimately resubmitted the remedy issue to Arbitrator Axon for his determination, by letter dated July 16, 1999. In its letter, the Union requested that the arbitrator award a remedy covering the time period between February 18, 1991 and July 18, 1999. In his Supplemental Award, dated August 21, 1999, Arbitrator Axon awarded a remedy covering the precise time period that the Union had requested. He also expressly ordered that the remedy include “all current and former employees” who were employed by the Employer throughout the entire designated period.

There is no doubt that the Axon remedy covered alleged violations of overtime assignment and rotation during the nine-year time period prior to the filing of the instant grievance and more that six months after its filing. Since it covered all current and former employees, there could be no individual grievants left who might have provable violations of overtime assignment and rotation under the instant grievance.

Continuing Violation Theory: The Union is contending in this proceeding that, since the words “continuing violation” were used in the grievance document, factual issues that allegedly arose after July 18, 1999 can be arbitrated by this arbitrator. We must therefore analyze the theory of continuing violation to see if it applies in the manner that the Union proposes.

The arbitrator must look first to the parties’ collective bargaining agreement as authority. The parties’ Master Agreement provides, in Article 31, that a grievance must be filed within forty calendar days of the date on which an alleged offense occurred. If the grievance is filed more than forty days after the alleged offense occurred, then the Union must show that it reasonably became aware of the facts no more than forty days prior to the filing of the grievance. There is an exception to the forty-day time limit, however, for offenses that are covered by statutes.

Section d. . . . .A grievance can be filed for violations within the life of this contract, however, where the statutes provide for a longer filing period, then the statutory period would control.(sic)

Although the grammatical structure of the sentence is somewhat awkward, it appears that the parties intended that alleged statutory violations could be filed as grievances during the life of the contract within the statutory time limit, rather than within the forty-day grievance time limit.

In order to invoke arbitration, the contract requires the Union to provide written notice to the Employer of certain specific items “prior to the expiration of any applicable time limit.” The contents of the required notice are referenced in Article 32, section a., as follows:

Section a. . . . . The notification must include a statement of the issues involved, the alleged violations, and the requested remedy. . . . (T)he issues, the alleged violations, and the remedy requested in the written grievance may be modified only by mutual agreement.(Emphasis added)

In this instance, a written grievance was filed on December 23, 1998. In the section entitled “Federal Prison System Directive, Executive Order, or Statute violated”, the words “Master Agreement” and “Fair Labor Standards Act” were typed. The box entitled “Date(s) of violation(s) contained the words “Continuing violation”.

Since the grievance related to alleged violations of the Fair Labor Standards Act, a federal statute,[2] the statute of limitations for any violations under that statute apparently applied.[3] Since the Union admits, however, that any factual issues occurring before December 23, 1998, and up to July 18, 1999, were covered by the Axon Award and Supplemental Award, this provision does not resolve the continuing violation theory. And there is no language in the collective bargaining agreement defining continuing violation.

The principle of continuing violation ordinarily applies in cases where a union wishes to grieve allegations of on-going contract violations, some of which occurred within the applicable grievance-filing time period, and others of which may have occurred in the past, before the applicable grievance-filing period began, but had not been grieved by the union. Such cases may even include alleged improper payments of wages or benefits to employees that have gone on for a long period of time, even years. In such cases, the employers usually argue that the union has waived its right to grieve the issue because it has failed to file a grievance within the applicable time limitation after the earliest event. Arbitrators, however, tend to agree that such cases constitute continuing violations and that each new paycheck raises a new opportunity for the union to grieve the improper payment of wages.

For example, in Harding Galesburg Markets, Inc. and Food and Commercial Workers, Local 951 (103 LA 1158 (Arb. Daniel, 1994), the arbitrator held that a grievance challenging the classification of employees who were doing work outside their classification had been timely, even though it had not been filed at the time the employees were first assigned to the out-of-class work. The arbitrator stated that a new right to grieve was created each time any of the employees received a paycheck for less than the proper amount that was owed for work done.

Also, in a case involving an issue of overtime allocation and compensation (not unlike the issues in the instant case), Hughes Space and Communications Co. and Electronic and Space Technicians, Local 1553, 105 LA 984 (Arb. Bickner, 1995), the arbitrator held that, even though the contract required employees to file grievances within fourteen working days of any alleged contract violation, and expressly restricted the retroactive effect of any arbitration award to eleven working days prior to the filing of the grievance, the essence of the dispute was whether the cumulated disparity in overtime that existed on the day the grievance was filed constituted a contract violation and, if so, what would be an appropriate remedy. He held that fairness and equity required a remedy that would take into consideration the cumulative effect of the wage loss to the affected employees, even though that remedy would require consideration of events occurring substantially more time than eleven or fourteen days prior to the grievance filing date.

In other words, the theory of continuing violation ordinarily applies retrospectively, rather than prospectively. This arbitrator knows of no cases in which the principle has been extended in the manner that the Union proposes here, to permit alleged contract violations occurring many months after the filing of the grievance to be arbitrated, where the alleged violations that occurred prior to the filing had been resolved in the interim and were therefore moot. Also, the Union cited no authority for its position that such an interpretation of the continuing violation theory has been allowed by arbitrators.

The arbitrator finds that such an extension would run counter to the fundamental labor-relations principles of due process and the finality of grievance resolutions. In essence, it would permit a party to keep a grievance in force indefinitely. Even after the initial problem has been resolved by the parties, where there was a suspicion that similar facts would arise in the future, the grieving party could wait and see if new grievable events occurred, and than present those promptly to an arbitrator, using the earlier grievance as notice of the new infraction. Such an interpretation of continuing violation is unreasonable and unsupportable.

Most importantly, however, such a theory is not authorized by the parties’ contract. Article 32(a) expressly requires that the grieving party give written notice to the opposing party of the “alleged violations and the requested remedy” at the time arbitration is requested. It would not be humanly possible to give such written notice of future events.

The more reasonable interpretation is as follows: When the Union filed its grievance on December 23, 1998, it was contractually obliged to base its contentions on the events that had occurred before that date. By referring to “continuing violation”, the Union gave notice to the Employer that it would show that the alleged overtime violations were on-going and that it would request an appropriate remedy exceeding the applicable filing time. In so doing, it was setting the stage for the arbitrator to fashion a remedy that would compensate employees for cumulative violations that had caused the employees to receive less compensation than they should have received before the grievance was filed. Assuming the case went to hearing, it also would allow the arbitrator to consider any losses that might have occurred up to the date of the arbitration hearing. (Interestingly, that was precisely the scenario that led to the remedied in the Axon Award and Supplemental Award.)

However, where, as here, the Union resolved the case that was initially filed and then new facts of a similar nature to the original allegations of the resolved grievance have occurred later, a new grievance is clearly required, containing allegations of the newly discovered facts and seeking a new and independent remedy.

Alternative Factual Basis: As an alternative basis for reactivating its grievance, the Union contends that there were some factual allegations in its December 23, 1998 grievance that were not resolved by the Axon Award and Supplemental Award and that the arbitrator should hear those allegations now. The arbitrator finds, however, that the grievance document, when read in the light of the Axon Award documents, does not give adequate notice of such unlitigated and unresolved issues. Moreover, even if such factual matters are possibly referenced in the grievance document, they were clearly waived by the Union, when the Union informed Arbitrator Axon, by its July 16, 1999 letter that an award of a remedy covering the period between February 18, 1991 and July 18, 1999, would “negate” the December 23, 1998 grievance, then subsequently informed this arbitrator, by letter dated September 15, 1999, that “the time frames established by Arbitrator Axon would encompass the [December 23, 1998] grievance and it would be withdrawn” if Arbitrator Axon’s Award and Supplemental Award survived an appeal.

If, as the Union suggests, new violations of overtime assignment and rotation have occurred since July 18, 1999, the Union is not without a remedy. The Union will have to file a new grievance, however, setting forth the new facts, if it wishes to arbitrate such matters. They cannot be litigated under the grievance that was filed on December 23, 1998, as that grievance has been fully and finally resolved.

For the reasons set forth in the preceding analysis and decision, the arbitrator has determined that the grievance filed on December 23, 1999, is fully and finally resolved and is therefore moot and not arbitrable.

[1] The Union submitted to the arbitrator a copy of a Memorandum to Department Heads and Supervisors, dated June 30, 1999, entitled “New Overtime Procedures”. Attached to the Memorandum is a three-page bargaining proposal, entitled Proposal 17, Article 18, section p/q 1. Union Counterproposal #12. It appears that the counterproposal was signed off by representatives of both parties on or about April 16, 1999 and that the Memorandum was subsequently promulgated to managerial and supervisory staff, as notice regarding the parties’ supplemental agreement.

[2] 5 U.S.C. 55 et. Seq.

[3] The statute of limitations for filing a claim under the Fair Labor Standards Act is two years from the date of the occurrence, except in cases of “willful violation”, where it is three years. See 5 CFR 551.702 Time Limits.