Petition for review of an arbitrator's decision in Case No. 14-54839 by Arbitrator Marvin J. Feldman.
JOHNNIE ALLEN LANDON, JR., Johnnie Landon, Esquire, Washington, DC, argued for petitioner.
MELISSA M. DEVINE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by EMMA BOND, BENJAMIN C. MIZER, ROBERT E. KIRCHMAN, JR., REGINALD T. BLADES, JR.
Before PROST, Chief Judge, DYK, and STOLL, Circuit Judges.
Dyk, Circuit Judge.
Raymond Muller filed a grievance against his employer, the Government Printing Office, which was referred to an arbitrator pursuant to a collective bargaining agreement. The arbitrator dismissed the grievance as " not arbitrable," on the ground that a four-month deadline for holding a hearing, required by the agreement, had passed. We conclude that the arbitrator erred; the contractual provision does not require dismissal of the grievance in the event of noncompliance with the four-month deadline. The deadline is merely a nonbinding housekeeping rule to encourage timely arbitration, one that is addressed to the arbitrator as well as the parties. There is no past practice requiring dismissal under the circumstances of this case. We accordingly reverse and remand with instructions to address Mr. Muller's grievance on the merits.
Mr. Muller is an employee of the U.S. Government Printing Office (" GPO" or " agency" ) and a member of the International Brotherhood of Teamsters, Local 713-S union (" union" ), which belongs to the Joint Council of Unions. The Joint Council of Unions and GPO are signatories to a collective bargaining agreement, a multi-party Master Labor Management Agreement (" master agreement" ), which creates a negotiated grievance procedure for GPO employees to contest adverse employment actions as an alternative to appeal to the Merit Systems Protection Board (" MSPB" ). The master agreement specifies that resolution of adverse employment actions under the negotiated procedure can proceed to arbitration if not resolved at the agency level.
Article VII of the master agreement sets forth various rules for the arbitration process. Section 10.d.(1) of the master agreement stipulates that, " [i]f the grievance is not resolved [at the agency level] . . . the union may inform the Director, Labor and Employee Relations Service of its decision to proceed to arbitration." J.A. 42. Arbitration must be invoked within 30 days: " This written statement must be submitted to the Director within 30 days after the decision of the Joint Grievance Committee" of agency and union officials. J.A. 42. Sections 10.d.(2) and (3) establish the rules of arbitrator selection, including the possibility that either the union or the agency may begin the arbitrator selection process and that the Federal Mediation and Conciliation Service (" FMCS" ) can step in if the process stalls. J.A. 42-43. Section 10.d.(4) states that " [t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit." J.A. 43. Section 11.e specifies that " [a]n arbitrator will render his decision as quickly as possible, but not later than 30 calendar days after the close of the record." J.A. 43.
Mr. Muller was reassigned between divisions of the GPO, resulting in demotion to a lower grade and a reduction in pay, an adverse employment action under 5 U.S.C. § 7512. Mr. Muller elected to challenge his reassignment through the negotiated grievance procedure, and, after proceeding through the steps of review required by the master agreement, the agency issued a decision denying the grievance. The union timely invoked arbitration on February 19, 2014, and requested and received a list of arbitrators from the FMCS on April 2, 2014. The union and the GPO jointly selected Marvin Feldman as arbitrator, and Mr. Feldman was notified of his selection on May 29, 2014. The arbitrator thus received the case approximately three weeks prior to June 19, 2014, the date on which the four-month deadline expired. The arbitrator wrote the union and the agency on June 9, 2014, to suggest the hearing be held July 23 or August 6, 2014.
On June 19, 2014, four months to the day from the date that arbitration had been invoked, the GPO wrote to the union and the arbitrator to ask that the arbitration be closed for failure to comply with the four-month deadline. The arbitrator requested briefs from both sides on the question of arbitrability and ultimately issued a decision on September 15, 2014, dismissing Mr. Muller's grievance as " not arbitrable," J.A. 7, because the master agreement " requires that the arbitration hearing take place within four months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of that time limit," J.A. 5. The arbitrator concluded that noncompliance with the four-month hearing deadline automatically terminated the grievance but, at the same time, found that the union was primarily responsible for the delay. " [T]here is ample evidence in the record, although none is required contractually, that the union, not FMCS, was the direct and primary cause for the failure of the parties to meet the four-month requirement." J.A. 6.
Mr. Muller petitions for review, arguing that the arbitrator's decision to close arbitration and dismiss the grievance was arbitrary, capricious, and an abuse of discretion, and was not supported by substantial evidence. Mr. Muller requests that the arbitrator's decision be set aside. We have jurisdiction under 5 U.S.C. § § 7121(f) and 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
Under 5 U.S.C. § 7121(e)(1), part of the Civil Service Reform Act of 1978 (" CSRA" ), a federal employee seeking to challenge disciplinary action by his employing agency may appeal his claim to the MSPB or, alternatively, take his claim to an independent arbitrator under a negotiated grievance procedure created by collective bargaining agreement. The arbitrator's decision is reviewed by this court under 5 U.S.C. § 7121(f). Section 7121(f) establishes that arbitrations of such grievances are reviewed under the same standard of review that applies to appeals from decisions of the MSPB. The statute provides that, " [i]n matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title . . . shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board." 5 U.S.C. § 7121(f); see also Cornelius v. Nutt, 472 U.S. 648, 661 n.16, 105 S.Ct. ...