34:0792(134)AR - - NAGE Local R4-106 and Air Force, Langley AFB, Virginia - - 1990 FLRAdec AR - - v34 p792



[ v34 p792 ]
34:0792(134)AR
The decision of the Authority follows:


34 FLRA No. 134

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-106

and

DEPARTMENT OF THE AIR FORCE

LANGLEY AIR FORCE BASE

VIRGINIA

0-AR-1664

DECISION

February 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator M. David Vaughn. Based on an agreement of the parties not to reopen the case after the case had been remanded to the parties by the Authority, the Arbitrator determined not to proceed on the matter of a request for an award of attorney fees.

Exceptions to the Arbitrator's award have been filed by a private attorney as counsel for NAGE Local R4-106 (the Union) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Department of the Air Force (the Agency) filed an opposition to the exceptions on behalf of Langley Air Force Base (the Activity).

For the reasons stated below, we conclude that the exceptions were properly filed on behalf of the Union, but that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background

This case concerns the remand by the Authority in National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159 (1988). In a previous supplemental award, the Arbitrator concluded that he was without jurisdiction to grant the Union's request for attorney fees. In 32 FLRA 1159, the Authority determined that the Arbitrator's supplemental award was deficient because the supplemental award did not set forth a proper basis for denying the Union's request for attorney fees. The Authority set aside the award and remanded the request for attorney fees to the parties and directed them to request the Arbitrator to consider the Union's request for an award of attorney fees. 32 FLRA at 1166.

After the issuance of the Authority's decision, the Arbitrator sent a letter to the representative of the Activity and to attorney Neil Bonney, the private attorney who represented the employee grievant before the Arbitrator on behalf of the Union and who had requested the award of attorney fees. The Arbitrator stated that the Authority had remanded the matter of attorney fees to the parties and that he awaited their advice on how to proceed.

The Arbitrator received a joint letter from the Activity and the Union dated November 16, 1988. The letter read as follows:

The parties hereby agree not to request reopening of the case for the purpose of attorney fees. The Union has not given the authority to anyone at this time or anytime in the past to act on its behalf in reopening the case and the parties are therefore not prepared to submit a briefing or provide the cost of arbitration fees.

The letter was signed by the labor relations representative of the Activity and by Glen Barrett, president of Local R4-106 of the National Association of Government Employees.

On November 17, 1988, Bonney replied by letter to the Arbitrator stating as follows: "[P]lease accept this letter as the Union's request for you to arbitrate the issue of attorney fees." By letter to the Arbitrator dated November 18, 1988, attorney Bonney stated that he is the union representative in this case and not local union president Barrett.

III. The Arbitrator's Award

The Arbitrator determined not to proceed on the request for attorney fees based on the parties' November 16, 1988, agreement not to reopen the case.

The Arbitrator noted that under the collective bargaining agreement pursuant to which the arbitration had taken place, the Union and the Activity are the parties to arbitration. The Arbitrator ruled that under the agreement, a case may be withdrawn from further proceedings by proper action of the Union. He also concluded that under the agreement, the Union's counsel or representative has no separate standing in a case and that the representative status may be rescinded. The Arbitrator determined that the November 16, 1988, agreement signed by Local R4-106 President Barrett constituted a proper Union withdrawal of the case from further proceedings before the Arbitrator and a rescission of any authorization from the Union for attorney Bonney to reopen the case before the Arbitrator.

IV. Positions of the Parties

A. The Union

Attorney Bonney, as counsel for the Union, contends that the award is deficient because: (1) the Arbitrator erred in considering any communication from the Union other than that from the Union's designated representative for the arbitration; (2) the agreement signed by Glen Barrett is void; (3) Barrett's agreement not to reopen the case was obtained by fraud and improper contact; and (4) the Arbitrator erred in failing to resolve the issue of attorney fees as ordered by the Authority.

Attorney Bonney maintains that the representative of the Activity improperly contacted the local union president without the knowledge of the Union's counsel and fraudulently induced him to sign what purported to be an agreement not to reopen the case. He asserts that at the time of the agreement, local union president Barrett had no authority to terminate the case. Bonney has submitted a statement by Barrett stating that: (1) at all times, Bonney has been the Union's designated representative with full authority to conduct the case; (2) Barrett did not have the authority to terminate the arbitration; and (3) at the time Barrett signed the agreement, he did not fully understand the situation or issues presented. Bonney also submitted affidavits of national representatives of the Union stating that Bonney had the full permission of the local Union to

pursue the issue of attorney fees and that local union president Barrett had no authority to make any decisions concerning the case.

B. The Agency

The Agency first contends that the exceptions should be dismissed because Bonney has no standing to file exceptions. The Agency claims that Bonney was not a party to the arbitration.

The Agency also claims that the Activity did not improperly contact local union president Barrett because, under Article 3 of the collective bargaining agreement, the local union president is the representative of the Union for purposes of referring matters to arbitration. The Agency maintains that Barrett was not taken advantage of in agreeing not to reopen this case. The Agency has submitted an affidavit from the Activity representative who signed the November 16, 1988, agreement stating that: (1) Barrett advised her that the union arbitration board had ruled not to reopen the case; (2) Barrett advised her that Bonney had no authority to invoke arbitration; and (3) Barrett informed her that Bonney asked Barrett to sign a statement that he had been "tricked" into agreeing not to reopen the case and that Barrett told Bonney that he was not tricked but was looking out for the interests of the local.

V. Discussion

This case presents two separate issues: (1) whether attorney Bonney properly filed exceptions to the Arbitrator's award on behalf of the Union; and (2) whether the Arbitrator's award finding that the parties had withdrawn the case from arbitration is deficient. We conclude that: (1) Bonney properly filed exceptions on behalf of the Union; and (2) no basis is provided for finding the award deficient.

A. The Exceptions Were Properly Filed on Behalf of the Union

The record before the Authority clearly reflects that Neil Bonney, as counsel for the Union, is a properly designated representative of the Union for purposes of filing exceptions to the Arbitrator's award. The uncontradicted affidavits of the national representatives of the Union state that Bonney had been retained as counsel for Local R4-106 by the national office of the Union to represent the local's interests in this case. We do not view the Arbitrator's limited ruling on Bonney's authority before the Arbitrator as affecting Bonney's authority as counsel for the Union to file exceptions with the Authority. Accordingly, we conclude that the exceptions have been properly filed on behalf of the Union, and we will resolve them on the merits. See Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO), 5 FLRA 463, 465 n.4 (1981) (the record before the Authority reflected that the exceptions had been filed by a private attorney designated as a representative of the union for purposes of filing exceptions to the arbitrator's award).

B. The Union Fails to Establish That the Award is Deficient

Our determination that Bonney properly filed exceptions on behalf of the Union does not resolve whether the Arbitrator's ruling that the parties had agreed to withdraw the case from arbitration is deficient. For the following reasons, we conclude that it is not deficient.

The Arbitrator was presented with two conflicting positions: (1) the November 16 agreement of the local union president not to reopen the case; and (2) Bonney's request to proceed. The Arbitrator interpreted provisions in the parties' collective bargaining agreement to determine who could act on behalf of the Union. The Arbitrator ruled that the agreement signed by the local union president constituted a proper action on behalf of the Union withdrawing the case from further proceedings.

We find that the Union's exceptions contending that the Arbitrator erred in considering the November 16 agreement and that the agreement is void fail to establish that the award is deficient. Questions concerning the requirements of a collective bargaining agreement which are applicable to processing grievances and arbitration are questions of procedural arbitrability which were properly before the Arbitrator. The exceptions constitute nothing more than disagreement with the Arbitrator's interpretation of the collective bargaining agreement to determine whether the case had been withdrawn from arbitration by proper action of the parties. See American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223 (1988) (denial of exceptions which merely disagree with an arbitrator's determination on a procedural arbitrability question is consistent with the decisions of Federal courts in private sector labor relations cases); Immigration and Naturalization Service, Department of Justice, U.S. Government and American Federation of Government Employees, Local No. 1656, 7 FLRA 549, 551-52 (1982) (an exception to an award determining which union local was authorized to request arbitration was denied because it constituted nothing more than disagreement with the arbitrator's interpretation of the collective bargaining agreement on a procedural arbitrability question).

We also conclude that the Union's exception that the award is deficient because the November 16 agreement was obtained by fraud fails to establish that the award is deficient. Under section 7122(a)(2) of the Statute, the Authority will find an award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. Federal courts will find an arbitration award deficient in the private sector when it is established that the award was obtained by fraud.

Federal courts hold that misconduct by representatives of a party, such as use of perjured testimony or misrepresentations to the arbitrator, constitutes obtaining an award by fraud. For example, Dogherra v. Safeway Stores, Inc., 679 F.2d 1293 (9th Cir. 1982), cert. denied, 459 U.S. 990 (1982) (Dogherra); Drayer v. Krasner, 572 F.2d 348 (2d Cir. 1978); International Brotherhood of Firemen Local 261 v. Great Northern Paper Co., 118 LRRM 2317 (D. Me. 1984), aff'd, 765 F.2d 295 (1st Cir. 1985). The courts are reluctant, however, to find an arbitration award deficient based upon a contention that the award was obtained by fraud. For example, in Dogherra, 679 F.2d at 1297, the court held that in order to find an award deficient on this basis: (1) the fraud must not have been discoverable on the exercise of due diligence prior to arbitration; (2) the fraud must materially relate to an issue in the arbitration; and (3) the fraud must be established by clear and convincing evidence.

The unsworn statement of local union president Barrett, which is disputed by the sworn affidavit of Activity representative Vaught, fails to clearly and convincingly establish that the November 16 agreement was obtained by fraud. Therefore, this exception does not support a finding that the award is deficient.

We further conclude that no basis is provided for finding the award deficient because the Arbitrator failed to resolve the attorney fee issue as ordered by the Authority. In 32 FLRA 1159, the Authority remanded the case to the parties. The remand did not require the Arbitrator to resolve the attorney fee issue. Rather, on remand, parties may always resolve a dispute. Indeed, the Authority has recognized that bilateral resolution of disputes promotes the purposes and policies of the Statute. For example, Army and Air Force Exchange Service and American Federation of Government Employees, Local No. 2965, 33 FLRA 420 (1988).

None of the Union's exceptions provides a basis for finding the award deficient on any ground set forth in the Statute. Accordingly, we will deny the exceptions.

VI. Decision

The Union's exceptions are denied.




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