38:0232(25)AR - - VA Medical Center, Leavenworth, KS and AFGE Local 85 - - 1990 FLRAdec AR - - v38 p232
[ v38 p232 ]
The decision of the Authority follows:
38 FLRA No. 25
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
November 20, 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 William O. Eisler filed by the Activity pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(1) The Union did not file an opposition to the Activity's exceptions.
The Arbitrator issued his First Supplemental Decision and Award (Supplemental Award) concerning the implementation of his initial award directing the Activity to pay retroactive environmental differential pay (EDP) for exposure to airborne asbestos fibers to bargaining unit employees who were determined to be entitled to EDP under terms of his award. The Activity filed exceptions to the supplemental award and contended that the award was deficient because the Arbitrator (1) illegally retained jurisdiction in the matter and (2) exceeded his authority when he extended the coverage of the initial award to employees of (1) the Veterans Canteen Service, Leavenworth, Kansas (Canteen) and (2) the Veterans Administration National Cemetery, Leavenworth, Kansas and Veterans Administration National Cemetery, Fort Leavenworth, Kansas (Cemetery), as well as the Medical Center. For the following reasons, we find that the Activity has failed to demonstrate that the Arbitrator's award is deficient and the exceptions are denied.(2)
II. Background and Arbitrator's Award
The Arbitrator stated that in his initial award he directed the Activity "to pay to each Wage System employee in the bargaining unit Environmental Differential Pay for each day worked from and after April 9, 1984 until [such time as the employee was no longer exposed to potential illness or injury or the potential was eliminated]." Supplemental Award at 2. The Arbitrator further awarded "to the extent allowed by law and regulations, Hazardous Duty Pay, to each General Schedule employee in the bargaining unit." Id. In his initial award, the Arbitrator had directed the Agency to request an amendment to the regulations governing hazardous duty pay from the Office of Personnel Management (OPM) to allow the payment of hazardous duty pay to General Schedule employees for exposure to asbestos.(3) Finally, the Arbitrator, quoting from his initial award, stated that he had "retaine[d] jurisdiction in the case for the purpose of clarification of the Award and to hear and decide any question which may arise concerning compliance with this Decision and Award." Id. at 3.
The Agency filed exceptions to the initial award with the Authority. The Authority denied those exceptions in Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 24 FLRA 902 (1986). Thereafter, early in 1987, the Union complained to the Arbitrator that the Activity was misinterpreting the award. After various delays, including a "mishearing . . . because of manifest confusion concerning the issues," a hearing was begun on October 16, 1987. Id. at 5. The hearing concerned the Activity's compliance with the initial award, as the award concerned wage grade employees only, during an approximately 2-year period beginning on April 4, 1984. Id. at 4. The hearing continued intermittently until February 6, 1988. The Arbitrator stated that during the events leading to the October 16 hearing, "for the first time, the [Activity] objected to the retention of jurisdiction by the Arbitrator in this matter." Id. The Arbitrator noted that after the hearing began, the Activity "for the first time, took the position that the grievance and initial decision did not involve employees . . . at the Canteen or National Cemeteries, even though these employees are members of the bargaining unit." Id.
The Activity contended that the Arbitrator was functus officio and that he had no jurisdiction concerning compliance with the award of March 4, 1986.(4) The Activity maintained that the Arbitrator relinquished jurisdiction over the matter when he issued the initial award and argued that even though the parties' agreement allows the return of disputes over interpretation of an award to an arbitrator, the request for interpretation in this case was unilateral by the Union and was not agreed to by the Activity.
The Arbitrator rejected the Activity's contentions regarding his continuing jurisdiction and stated that the Activity's representative "premise[d] his arguments on the assumption that the initial award was final and complete." Id. at 7. The Arbitrator explained that he had retained jurisdiction to resolve questions of backpay based on the Union's request which, as evidenced by the Arbitrator's official record of the hearing, was made in the presence of the Activity's representative. Id. at 8. The Arbitrator noted that the Activity made no objection to his continued jurisdiction for that purpose at the hearing "or at any other time prior to the issuance of the initial award." Id. at 9. He also noted that the Activity did not object to his continued jurisdiction when it filed exceptions to the initial award with the Authority, and he stated that it was not until August 27, 1987 that the Activity "made an objection to the retention of jurisdiction by the Arbitrator." Id. at 10. The Arbitrator concluded that the grievance over compensation for exposure to asbestos in the initial award presents "extremely complex and cumbersome questions" in determining how much and to which grievants backpay was due and, consequently, the award was not "a final one so as to terminate the Arbitrator's jurisdiction and authority pursuant to the doctrine of functus officio." Id. at 13-14 (emphasis in original).
The Arbitrator also rejected the Activity's contention that his retention of jurisdiction was improper because of a negotiated settlement agreement "alleged to have been reached in a negotiating session on March 4, 1986, the same day as the initial award." Id. at 19. The Arbitrator found that that contention was the subject of an unfair labor practice charge before the Authority which was "disposed of adversely to the [Activity]" and that the Union acted properly in bringing the decision to the Arbitrator's attention.(5) Id.
The Arbitrator next addressed the Activity's contention that the initial award did not apply to employees of the Canteen and the National Cemetery. He noted that at the hearing on October 28, 1987, the Activity's representative argued on behalf of the Canteen and the Cemetery that employees of those organizations were not covered by the same grievance procedures that applied to employees of the Medical Center. The Arbitrator stated that "[i]t was not until October 1987, that [he] was made aware of the separate grievance procedures contained in the Master Agreement." Id. at 21. The Arbitrator acknowledged that the Master Labor Agreement (MLA) requirements for the filing of grievances by the Canteen and the Cemetery differed from those of the Medical Center with regard to filing levels and time limits and he noted that the grievance before him was filed with the Director of the Medical Center. See id. at 21-23. The Arbitrator also noted that although the negotiated grievance procedure required the Activity to assert a claim that a grievance was not grievable or arbitrable by no later than the step three decision, no claim was made by the Activity "concerning the fact that the grievance had not been filed with the Cemetery Director or the Canteen Service Director." Id. at 23. He found that "[n]o contention was made . . . that the initial award was inapplicable to the [C]anteen and [C]emetery employees from the time of the filing of the grievance until the hearings began anew in October." Id. at 25. The Arbitrator pointed out that he had rejected the Union's claim that the grievance covered all employees of the Activity and emphasized that he had found only "that the instant grievance was valid as to all bargaining unit employees." Id.
The Arbitrator concluded that because the Activity had been aware of the circumstances of the grievance and had failed to object to inclusion of bargaining unit Cemetery and Canteen employees in the grievance, the Activity had waived the defense of nonarbitrability. He also noted that the Veterans Administration, as the Agency and employer of employees of the Medical Center, the Canteen, and the Cemetery, was aware of the Union's grievance and claim for relief for all bargaining unit employees. He stated that "[t]he validity of the claims of all the bargaining unit employees was established by the initial decision and award" and "that claim, as to a portion of those bargaining unit employees, cannot now be relitigated." Id. at 34-35.
With regard to the Activity's compliance with the initial award, the Arbitrator found that although a large number of employees had received payment under the initial award, others, including employees of the Cemetery and Canteen, had not been paid. He found that the Activity had taken measures to eliminate airborne asbestos as he had ordered in the initial award. With regard to the matter of hazard pay for General Schedule employees, the Arbitrator held that the matter before him in the present proceedings "was only to be concerned with Wage Grade employees [and] no finding is made with regard to whether or not [the request which was made to OPM] constitutes full compliance with the initial award." Id. at 42-43.
The Arbitrator ruled in his First Supplemental Award that, among other things, he had properly retained jurisdiction of the case when he issued the initial award and that the initial award "is applicable to all bargaining unit employees whether employed by the Veterans Canteen Service, the Department of Memorial Affairs [Cemetery] or the Department of Medicine and Surgery [Medical Center]." Id. at 44. The Arbitrator did not grant the Union's requests for monetary relief including interest, costs and expenses, the Union's portion of the Arbitrator's fee, and expenses for a Union witness. However, he stated that the Union could bring those requests before him at a later date. He held that he would "continue to retain jurisdiction of this case until full compliance is accomplished and a final award is entered." Id. at 45.
III. First Exception
A. Position of the Activity
The Activity contends that the Arbitrator's supplemental award is deficient because the Arbitrator improperly retained jurisdiction for purposes of overseeing compliance with the initial award. The Activity maintains that the Arbitrator erred when he ruled that his retention of jurisdiction over the initial award was proper and when he retained jurisdiction at the request of the Union over the Activity's objection. The Activity also contends that the Arbitrator improperly "retained jurisdiction by leaving open whether or not the Union would be entitled to costs and expenses and Arbitrator's fees expended[,]" an issue which was first raised by the Union in its prehearing brief to the Arbitrator in October 1987. Exceptions at 6.
The Activity asserts that the Arbitrator's statement "that he retained jurisdiction for clarification or compliance . . . has no effect as he had actually issued a final award. There were no further matters for him to determine." Id. at 7. The Activity maintains that the proper remedy for noncompliance with a final award is the filing of a grievance by the complaining party, which was not done in this case. The Activity contends that the Arbitrator was functus officio, objects to the Arbitrator's continued retention of jurisdiction in his supplemental award, and contends that the Arbitrator improperly expanded his jurisdiction "to include the possible fees and expenses requested by the Union." Id. at 8.
B. Analysis and Conclusions
We construe the Activity's exception as a claim that the Arbitrator exceeded his authority by ruling in his supplemental award on matters over which he no longer had jurisdiction. We conclude, contrary to the Activity's contentions, that the Arbitrator had authority to continue his jurisdiction over the grievance based on his retention of jurisdiction in the initial award. We also find that the Arbitrator acted properly and within the limits of his authority when he asserted continued jurisdiction for the limited purposes stated in his supplemental award. The Activity's exception provides no basis for finding the supplemental award deficient and will be denied.
In his initial award, the Arbitrator stated as follows:
The Arbitrator retains jurisdiction in the case for the purpose of clarification or amendment of the Award and to hear and decide any questions which may arise concerning compliance with this Decision and Award.
Supplemental Award at 3, quoting Initial Award. Although the Activity filed exceptions to the initial award with the Authority, there were no exceptions to the Arbitrator's retention of jurisdiction. The Activity's exceptions were denied and the award became final and binding on the parties. See 24 FLRA 902.
Unless an arbitrator retains jurisdiction after issuance of an award, the arbitrator is without legal authority to take any further action with respect to that award without the joint request of the parties. See General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123 (1990) (arbitrator had no authority to reopen award to determine dispute over allocation of costs of arbitration proceeding when he did not retain jurisdiction and both parties stipulated and agreed that they intended to place the issue before another arbitrator); Overseas Federation of Teachers AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 415 (1988) (arbitrator exceeded his authority by reopening and reconsidering his original award which had become final and binding where he did not retain jurisdiction over the matter and where there was no joint request by the parties).
However, the retention of jurisdiction by arbitrators for the purposes of clarification and interpretation of an award and for overseeing the implementation of remedies is not unusual and has been approved by the Authority. See Overseas Education Association and Department of Defense Dependents Schools, Atlantic Region, 31 FLRA 80, 93 (1988) (arbitrator properly retained jurisdiction to assist parties if they could not agree on procedures for implementing award); Patent and Trademark Office and Patent Office Professional Association, 15 FLRA 990, 993 (1984) (interest arbitrator did not exceed his authority by retaining jurisdiction to evaluate progress of bargaining).
In the instant case, the initial award plainly states that the Arbitrator retained jurisdiction for purposes of compliance with the remedy he ordered. The Arbitrator found that wage grade employees in the bargaining unit were entitled to EDP for exposure to airborne asbestos "for each day worked from and after April 9, 1984, until such time as competent and empirical evidence is available that said employee is not working in an area [in which EDP is payable]." Supplemental Award at 2, quoting Initial Award. That finding constituted a final resolution of the issue before him. However, the Arbitrator was unable to determine at the time of the initial award the exact amount of EDP to which each wage grade employee was entitled. Consequently, the Arbitrator left responsibility for making the determination as to each individual employee's entitlement to the Activity, subject to the Arbitrator's retained jurisdiction. As noted previously, the Activity did not file exceptions to the Arbitrator's retention of jurisdiction for that purpose. Consequently, as the Arbitrator retained jurisdiction in his initial award only for the purpose of resolving questions which might arise concerning implementation of that award, the Activity has not established that the Arbitrator was functus officio when he issued his supplemental award.
Similarly, the Activity has failed to establish that the Arbitrator's supplemental award is deficient on the basis that the Arbitrator improperly retained jurisdiction over future compliance with the initial award and over the Union's future requests relating to the allocation of costs of the arbitration proceedings. The retention of jurisdiction for consideration of a possible Union request for allocation of arbitration costs is similar to retention of jurisdiction to consider requests for attorney fees. The Authority has held that arbitrators have jurisdiction to resolve questions relating to attorney fees after the issuance of a final and binding award. See Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 421 (1988). In this case, the Arbitrator retained jurisdiction for a matter which was directly related to and which arose from the initial arbitration award--the determination of whether the Union was entitled to reimbursement of its costs incurred in arbitration. We find nothing in the Arbitrator's retention of jurisdiction for that purpose which exceeds his authority. The Activity has failed to establish that the Arbitrator has exceeded his authority by retaining jurisdiction for purposes of compliance with the initial or the supplemental award and, consequently, the exception fails to provide a basis for finding the award deficient.
IV. Second Exception
A. Position of the Activity
The Activity contends that the supplemental award is deficient because the Arbitrator incorrectly ruled that the grievance and initial award applied to the Canteen and the Cemetery as well as the Medical Center. The Activity disputes the Arbitrator's finding that the Director of the Medical Center waived the grievance and arbitration procedures for the Canteen and the Cemetery and also contends that the Arbitrator erroneously based his decision on Article 13, Section 4 of the MLA, which requires the Activity to assert nongrievability and nonarbitrability at the third step of the grievance procedure. The Activity asserts that there is no third step in the grievance procedures of the Canteen or the Cemetery. The Activity points out that the grievance was filed against the Medical Center as a local level grievance on behalf of Medical Center employees only, and states that "[n]o claim of lack of jurisdiction over Cemetery Service or Canteen Service was claimed because: 1) the grievance was not brought against them, and 2) no response was made on their behalf by the Medical Center." Exceptions at 10.
The Activity states that the Union "represents a consolidated bargaining unit consisting of employees of the Medical Center, National Cemetery and Canteen Service[,]" but maintains that "[t]he only common 'supervisor' of [those employees] is the Administrator of Veterans Affairs." Id. at 10-11. The Activity argues that at no time during the initial arbitration proceeding was mention made that the grievance was intended to cover Canteen and Cemetery employees and points out that the Canteen has no wage grade employees, only non-appropriated fund employees.
The Activity contends that the Union erroneously relied on Article 25 of the MLA when it ignored the separate grievance procedures for the Canteen and Cemetery and filed a grievance for EDP at the third step of the Medical Center's grievance procedure. The Activity also contends that the Union mistakenly assumed that a grievance covering all employees could be filed with either the Medical Center, the Canteen, or the Cemetery, as all three activities are serviced by the same personnel officer. The Activity asserts that "[t]he clear language of the grievance only requests relief for employees of the Medical Center. The grievance and arbitration only mention the Medical Center and further, the clear language of the Arbitrator's award deals only with the employees of the Medical Center." Id. at 14.
The Activity contends that "the Arbitrator's ruling that the deciding official for the Medical Center waived the rights of [the] Cemetery and Canteen Service flies in the face of the facts, the contract and case law, and must be reversed." Id. at 15. The Activity argues that the doctrine of collateral estoppel does not apply in this case because there is no "mutuality" and the party "against whom the [A]rbitrator works the estoppel was not a party to the original action." Id. The Activity maintains that the Arbitrator erroneously determined that a local grievance against the Medical Center was against the Agency as the common employer of employees of the Center, the Canteen, and the Cemetery, which "cannot be unless a national level grievance was filed by the National Union under Article 13, Section 11 [of the MLA]." Id.
B. Analysis and Conclusions
Although the Activity did not term the exception as such, we will consider it as a contention that the award is deficient because the Arbitrator exceeded his authority and as a contention that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. For the following reasons, we conclude that the Activity has failed to establish that (1) the Arbitrator exceeded his authority when he ruled in his supplemental award that bargaining unit employees of the Canteen and the Cemetery were covered under the terms of the initial award or (2) the award fails to draw its essence from the agreement. Consequently, this exception provides no basis for finding the award deficient and will be denied.
An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration or when he or she awards relief to persons who did not file a grievance on their own behalf or who did not have the union file grievances for them. U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 142-43 (1990); General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990). In this case, the Activity has failed to establish that the Arbitrator exceeded his authority by ruling that bargaining unit employees of the Canteen and the Cemetery are covered by the initial award.
The Arbitrator fully addressed the Activity's contentions regarding coverage of Canteen and Cemetery employees in his supplemental award. He determined that the Activity had failed to contest the coverage of employees of the Canteen and Cemetery until the October 1987 hearings on compliance began, although "the Employer knew full well that the Union claimed to be processing the grievance on behalf of all employees." Supplemental Award at 32. The initial award granted relief to all employees in the bargaining unit. See id. at 2, quoting Initial Award, and at 24. The bargaining unit includes employees of the Medical Center, the Canteen, and the Cemetery. Id. at 5. The Activity is only disagreeing with the Arbitrator's ruling that, in the absence of timely objection by the Activity or the Agency under provisions of the parties' collective bargaining agreement, the initial award is applicable to all eligible employees of the bargaining unit, including employees of the Canteen and Cemetery.
We also find that the Activity has not shown that the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 771 (1990).
The Activity has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator determined, based on the provisions of the MLA, that a grievance filed at the third step of the grievance procedure with the Medical Center was intended to cover bargaining unit employees of the Canteen and the Cemetery. He specifically rejected the Activity's contention that the agreement required a separate grievance filed with the Canteen and the Cemetery to cover employees of those organizations. See Supplemental Award at 30-35.
In our opinion, the Activity's exception constitutes nothing more than disagreement with the Arbitrator's ruling on a matter of procedural arbitrability under the agreement. Such disagreement provides no basis for finding an award deficient under the Statute. See, for example, U.S. Department of the Army, Fort Monroe, Virginia and National Association of Government Employees, Local R4-11, 35 FLRA 1187, 1191-92 (1990) (where union's contentions constitute nothing more than disagreement with the arbitrator's ruling on the procedural arbitrability issue of whether the grievance was timely filed, the contentions provide no basis for finding the award deficient); U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 34 FLRA 203, 205 (1990) (an exception which does nothing more than disagree with an arbitrator's determination on the procedural arbitrability of a grievance provides no basis for finding the award deficient). The Arbitrator found that neither the Activity nor the Agency, as the employer of employees of the Medical Center, the Canteen and the Cemetery, had raised the issue concerning nongrievability and nonarbitrability of the grievance as to employees of the Canteen and Cemetery at the third step of the grievance, as required by the agreement. See Supplemental Award at 33. Consequently, he determined that the Activity untimely attempted to raise the issue at the beginning of the compliance hearing in October 1987. Thus, the Arbitrator's finding concerned a matter of procedural arbitrability and the Activity's disagreement with that finding provides no basis for finding the award deficient.
The Activity's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Authority notes that during the pendency of this case the Veterans Administration (Agency) was reestablished as the Department of Veterans Affairs.
2. The Agency also requested a stay of the Arbitrator's award when it filed its exceptions to the award. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.
3. The Department of Veterans Affairs, along with the Department of Health and Human Services, made such a request to OPM. OPM has published for comment proposed rules which, if made final, would add exposure to airborne asbestos fibers to the hazard pay differential table contained in Appendix A to subpart I, Part 550 of 5 Code of Federal Regulations and would create a hazard pay differential of 8 percent for General Schedule employees. See 55 Fed. Reg. 31190 (Aug. 1, 1990).
4. The concept of functus officio means that once an official has fulfilled the function or accomplished the designated purpose of his or her office, the official has no further authority. Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 412 n.* (1988).
5. See Veterans Administration Washington, D.C. and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 855 (1988) (adopting Administrative Law Judge's decision which found that the respondents had engaged in unfair labor practices during negotiations over the Medical Center's revised MCPM 138-15, "Subject: Asbestos Operations," concerning the payment of environmental differential pay to bargaining unit employees exposed to asbestos in the performance of their duties by (1) making misrepresentations to the union's representative during negotiations and inducing her to initial and agree to bargaining proposals; (2) discontinuing negotiations with the union and refusing to bargain as to