49:0982(95)AR - - DOD, Army and Air Force Exchange Service, Dallas, TX and AFGE - - 1994 FLRAdec AR - - v49 p982



[ v49 p982 ]
49:0982(95)AR
The decision of the Authority follows:


49 FLRA No. 95

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-2536

_____

DECISION

May 17, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Peyton M. Williams filed by the Agency 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 Union did not file an opposition to the Agency's exceptions.

The Arbitrator found that the Agency violated law, regulation, and the parties' collective bargaining agreement when it demanded that the grievant execute a promissory note payable to the Agency and that the Agency violated a settlement agreement when it attempted to enforce the note. As a remedy, the Arbitrator ordered the grievant made whole. We conclude that a portion of the exceptions must be dismissed for lack of jurisdiction. We will deny the remaining exceptions.

II. Background and Arbitrator's Award

At all times relevant to the dispute, the grievant was a motor vehicle operator for the Agency. On February 22, 1991, the grievant signed a promissory note payable to the Agency in the amount of $10,124.44 in restitution for the grievant's falsification of driver logs, as a result of which the grievant had been compensated for time not worked. In January 1992, the grievant was removed from employment for additional instances of falsification of driver logs. In February 1992, the Union filed a local grievance over the grievant's removal and raised as an issue the promissory note and the means by which it was obtained.

In April 1992, the Union filed a national grievance alleging that the Agency had coerced employees in obtaining promissory notes and had forced motor vehicle drivers to work without proper compensation. This grievance specifically named the grievant as an employee affected by the alleged actions of the Agency. In August 1992, the parties entered into an agreement settling the national grievance. The settlement agreement, as it pertained to the grievant, provided as follows:

[The grievant] will receive compensation totaling $5,070.56. All reference to the separation will be cleared from his records. The Union withdraws the grievance filed locally by signing this agreement.

When the Agency did not pay the $5,070.56 to the grievant and continued to demand that the grievant pay the amount of the promissory note, the Union filed another national grievance in December 1992.

The Union alleged that the grievant had understood that he had no further obligation on the promissory note. The Union claimed that if the note remained in effect, it was not valid or collectible because it had been obtained by coercion in violation of the collective bargaining agreement. The Union further claimed that the coerced signing of the note constituted a disciplinary and punitive action that was not for just cause, as required by the collective bargaining agreement. Consequently, the Union maintained that under the Back Pay Act the grievant was entitled to a remedy of full restitution of all the money that he had paid on the note. The grievance was not resolved and was submitted to arbitration.

Before the Arbitrator, the Agency argued that the grievance filed in December 1992 over the promissory note was untimely and that it was moot and no longer grievable because it had been resolved by the settlement agreement signed by the parties in August 1992. The Agency asserted that the terms of the settlement agreement were fulfilled with respect to the grievant and that it had acted in accordance with law, regulations, and the collective bargaining agreement in dealing with the grievant.

The Arbitrator stated the issues as: (1) whether the grievance was arbitrable; and (2) if so, whether the Agency violated law, regulations, or the collective bargaining agreement when it demanded that the grievant execute a promissory note payable to the Agency in the amount of $10,124.44 as restitution for allegedly falsifying his driver logs and collecting pay for time not worked. The Arbitrator found that the grievance was timely. He ruled that, under Article 43, Section 8 of the collective bargaining agreement, there were no specified time limits for the filing of national grievances. In so ruling, the Arbitrator noted that the language applicable to national grievances had been previously interpreted by another arbitrator to contain no time limits and the language had not been changed by the parties when they negotiated their successor agreement.

The Arbitrator also ruled that the grievance was not moot and was not precluded by the terms of the settlement agreement. The Arbitrator found that the "basic thrust" of the February 1992 grievance was included in the April 1992 national grievance except for the issue involving the grievant's removal, which had been dropped because the grievant was no longer interested in returning to employment with the Agency. Award at 11. The Arbitrator concluded that the Union reasonably believed that, as a result of the settlement agreement, the promissory note matter had been resolved by an agreement to cancel the grievant's note. The Arbitrator further concluded that if the Agency did not intend to cancel the grievant's note, but instead intended to apply the $5,070.56 in compensation required under the settlement agreement to the unpaid balance of the note, it should have so informed the Union at that time. The Arbitrator also found that the mediation provision of Article 43, Section 7 of the collective bargaining agreement, pursuant to which the national grievance was settled, did not preclude the grievance. Accordingly, the Arbitrator ruled that the issue of whether the promissory note was valid and enforceable was appropriate for resolution either as a prior, but unresolved, grievance or as a new national grievance.

On the merits of the grievance, the Arbitrator ruled that the Agency violated the collective bargaining agreement and applicable law and regulations when its representatives demanded that the grievant execute a promissory note payable to the Agency in the amount of $10,124.44. He found that the representatives of the Agency coerced and intimidated the grievant into signing the note. He also found that: (1) but for such coercion, the grievant would not have signed the note because he was not guilty of the charges; and (2) the representatives of the Agency knew or should have known that he had not falsified his driver logs. The Arbitrator concluded that the actions of the representatives were egregious, arbitrary, and punitive in nature and that, therefore, any unfavorable consequences that the grievant suffered as a result of those actions should be voided.

He also ruled that the Agency violated the settlement agreement by enforcing the note. He found that the grievant had been treated disparately in relation to his co-workers even though many of them were allegedly guilty of identical offenses and had executed promissory notes as repayment for wages allegedly received improperly. Therefore, he determined that the settlement precluded enforcement of the note.

The Arbitrator held that all funds received by the Agency as a result of the existence of the promissory note were received improperly. Accordingly, as a remedy, the Arbitrator ordered the Agency to make the grievant whole, with appropriate interest, for all funds the Agency had received from all sources as a result of the note, including the compensation of $5,070.56 set forth in the settlement agreement. He also ordered the Agency to pay the grievant for any wages he was not paid during the period between October 26, 1991, and January 17, 1992, "when the [Agency] did not allow [the grievant] to work." Award at 15.(1) He further ordered the Agency to expunge any record of discipline received by the grievant after February 22, 1991.

III. Agency's Exceptions

The Agency contends that the award of backpay is deficient. Primarily, the Agency argues that the sole source of an arbitrator's authority to award backpay is the Back Pay Act and that under the decision of the U.S. Supreme Court in AAFES v. Sheehan, 456 U.S. 728 (1982), the Back Pay Act does not apply to the Agency or its employees. In addition, the Agency claims that the award of backpay is not authorized by the Authority's decision in U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, 45 FLRA 674 (1992) (AFGE) because the decision in that case was based on the Prevailing Rate Systems Act of 1972. Accordingly, the Agency asserts that the award of backpay is contrary to law and exceeded the Arbitrator's authority. In the alternative, the Agency contends that, if the Authority were to find the Back Pay Act applicable, the award of backpay is contrary to that statute. The Agency argues that the award conflicts with the Back Pay Act because the Arbitrator failed to cite specific provisions of laws, regulations, or the collective bargaining agreement that were violated by the execution of the promissory note. The Agency also argues that the award of backpay is deficient because it includes amounts that either are not directly related to the execution of the promissory note or are not pay, allowances, or differentials. Specifically, the Agency asserts that the award of wages for the period between October 26, 1991, and January 17, 1992, is deficient because the execution of the note did not form the basis of any disciplinary action and was not the reason the grievant was precluded from working during that period. The Agency further asserts that the award is deficient because it includes the $5,070.56 from the settlement agreement, even though that amount was not considered restitution of any pay that the grievant had lost. The Agency maintains that, instead, "[t]he $5,070.56 was . . . a payment to the employee to evoke a withdrawal of the local grievance concerning his separation." Exceptions at 10.

The Agency also contends that the Arbitrator exceeded his authority by considering issues that were not submitted to him. The Agency notes that the Arbitrator stated the issues as whether the grievance was arbitrable and, if it was, whether the Agency had violated law, regulation, or the collective bargaining agreement in demanding that the grievant execute the promissory note. The Agency argues that the Arbitrator exceeded his authority when he went beyond these stated issues and considered the equity of the settlement agreement and an alleged period of suspension that had not been included in the original grievance and was not related to the execution of the promissory note.

The Agency further contends that by finding the grievance to have been timely filed, the award is based on nonfacts and fails to draw its essence from the collective bargaining agreement. The Agency notes that, in so finding, the Arbitrator relied on an award based on the language of the previous collective bargaining agreement and that the Arbitrator stated that the language had not been changed by the successor agreement. The Agency argues that these are nonfacts because the language of the successor agreement was changed and the award on which the Arbitrator relied involved completely different circumstances. In addition, the Agency argues that the Arbitrator disregarded the agreement by finding the grievance to be timely. The Agency maintains that Article 43, Section 7 of the agreement specifies the time limits for filing grievances and imposes them on the grievant. The Agency asserts that the term "grievant" must be interpreted to include the Union when the Union files a national grievance. The Agency also asserts that it was implausible for the Arbitrator to find, as he did, that the mediation provisions of Section 7 applied to national grievances, but that the time requirements did not. The Agency further argues that the Arbitrator completely disregarded its evidence that clearly showed that the Union and other arbitrators in interpreting the agreement had concluded that the agreement establishes time limits for filing national grievances.

The Agency also contends that the award fails to draw its essence from the collective bargaining agreement and the settlement agreement in other respects. The Agency argues that the Arbitrator disregarded the collective bargaining agreement in finding a violation of the agreement by the Agency in securing a promissory note from the grievant and in concluding that the Agency had a duty to advise the Union of the status of the promissory note. The Agency also argues that the Arbitrator disregarded the definition of discipline in the agreement when he agreed with the Union that the securing of the promissory note was a disciplinary action that was arbitrary and punitive. In addition, the Agency argues that the award is contrary to the express language of the settlement agreement, which the Agency contends provided for the complete resolution of the grievance. In the Agency's view, the Arbitrator disregarded the settlement agreement and the collective bargaining agreement and instead "administer[ed] his own brand of industrial justice . . . ." Exceptions at 19 (footnote omitted).

IV. Analysis and Conclusions

A. Threshold Procedural Issue

On November 19, 1993, the Authority's Case Control Office issued a notice to the Agency to show cause why its exceptions should not be dismissed for lack of jurisdiction by the Authority because the award related to the removal of the grievant. The Agency responded to the notice and claimed that the award related only to the promissory note executed by the grievant and not to his removal. The Case Control Office deferred ruling on whether the Agency's exceptions should be dismissed for lack of jurisdiction.

Section 7122(a) of the Statute provides that exceptions may not be filed to an award relating to a matter described in section 7121(f) of the Statute. The matters described in section 7121(f) include serious adverse action matters covered by 5 U.S.C. § 7512 and similar matters that arise in other personnel systems, such as the Agency's personnel system for its nonappropriated fund activity employees. For example, U.S. Department of Defense, Army and Air Force Exchange Service, Dan Daniels Distribution Center, Newport News, Virginia and National Association of Government Employees, 42 FLRA 175 (1991) (NAGE). The matters covered by section 7512 include removals and suspensions for more than 14 days.

We agree with the Agency that to the extent that the award relates to the alleged coercion by the Agency in securing the execution by the grievant of the promissory note, the award does not relate to the removal of the grievant. Consequently, we will resolve the Agency's exceptions pertaining to this portion of the Arbitrator's award. However, we will dismiss the Agency's exceptions to the extent that they pertain to the Arbitrator's consideration and enforcement of the settlement agreement. We will also dismiss the Agency's exceptions to the extent that they pertain to the Arbitrator's award of backpay to the grievant for the period of October 26, 1991, to January 17, 1992, a period during which "the [Agency] did not allow [the grievant] to work." Award at 15.

We find that to the extent that the award relates to the August 1992 settlement agreement, the award relates to the grievant's removal. In U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837 (1986), the grievant was removed for submitting false travel vouchers, and he filed a grievance protesting the removal. The grievance was settled by an agreement under which the grievant was reinstated without backpay and the 6 months that he did not work would be treated as a suspension. After the grievant's reinstatement, the agency sought reimbursement of the amount of money that the grievant had received on the basis of the false travel vouchers. Another grievance was filed and was submitted to arbitration on the issue of whether the agency's actions violated the settlement agreement. The arbitrator denied the grievance, and the union filed exceptions to the award with the Authority. The Authority dismissed the exceptions for lack of jurisdiction. The Authority found that the issue submitted to the arbitrator directly concerned the interpretation and application of the settlement agreement under which the grievant's removal was changed to a suspension of approximately 6 months. The Authority held that the issue regarding the settlement agreement could not be separated from the original issue of the grievant's removal. Accordingly, the Authority decided that the award related to the grievant's removal and that the union's exceptions were not subject to resolution by the Authority.

In this case, we similarly find that because the settlement agreement, as it pertained to the grievant, settled the grievant's local grievance over his removal, the portion of the Arbitrator's award considering and enforcing the settlement agreement relates to the removal of the grievant, and the Agency's exceptions to this portion of the award are not subject to resolution by the Authority. In this regard, we note that in addition to resolving issues involving promissory notes, the settlement agreement specifically stated that "[a]ll reference to [the grievant's] separation will be cleared from his records." Award at 6 (quoting settlement agreement). Accordingly, we will dismiss the Agency's exceptions contending that: (1) the Arbitrator exceeded his authority by considering the settlement agreement; (2) the award fails to draw its essence from the settlement agreement; and (3) the inclusion of the $5,070.56 settlement amount as part of the monetary remedy the grievant is to be paid is contrary to law.

We also conclude that to the extent that the award orders backpay for the period from October 26, 1991, to January 17, 1992, the award relates to a long-term suspension. We find that this portion of the award concerns the actual or constructive suspension of the grievant for more than 14 days for disciplinary reasons under the Agency's personnel system. Accordingly, we conclude that this portion of the award relates to a matter described in section 7121(f). Therefore, to the extent that the Agency's exceptions pertain to this portion of the award, they are not subject to resolution by the Authority, and we will dismiss them. See NAGE, 42 FLRA at 176.

B. The Arbitrator's Determination That the Grievance Was Timely Filed Is Not Deficient

The Agency contends that in finding the grievance to have been timely filed under the parties' collective bargaining agreement, the award is based on nonfacts and fails to draw its essence from that agreement. We conclude that the Agency fails to establish that the award is deficient in this regard.

The Arbitrator's ruling constitutes his determination on the procedural arbitrability issue of the timeliness of the grievance under the parties' collective bargaining agreement. The Authority has consistently held that procedural arbitrability determinations by arbitrators are generally not subject to challenge and that exceptions that constitute nothing more than disagreement with the arbitrator's determination on such issues provide no basis for finding the arbitrator's ruling deficient under the Statute. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 43 FLRA 963, 966 (1992) (Tinker AFB). The Authority has explained that the denial of exceptions that merely disagree with an arbitrator's determination on the procedural arbitrability of the grievance is fully consistent with the decisions of the Federal courts reviewing arbitration awards in the private sector. For example, John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator."). In our view, the Agency's arguments that the Arbitrator improperly relied on the award of another arbitrator and misinterpreted the terms of the agreement constitute nothing more than disagreement with the Arbitrator's procedural arbitrability ruling and provide no basis for finding the award deficient. See Tinker AFB, 43 FLRA at 964. Accordingly, we will deny this exception.

C. The Award Does Not Fail to Draw Its Essence from the Collective Bargaining Agreement

The Agency contends that the award fails to draw its essence from the collective bargaining agreement. The Agency argues that the Arbitrator modified the collective bargaining agreement in finding a violation in the securing of the promissory note from the grievant and disregarded the agreement's definition of discipline when he agreed with the Union that the securing of the promissory note was a disciplinary action that was arbitrary and punitive.

In order for the award to be found deficient because it does not draw its essence from the agreement, the Agency must establish one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award is so unfounded in reason or in fact, so unconnected with the wording and purposes of the agreement, so as to manifest an infidelity to the obligation of the Arbitrator; (3) the award evidences a manifest disregard of the agreement; or (4) the award does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 98, 100 (1993) (Oklahoma City Air Logistics Center). We conclude that the Agency provides no basis for finding that the award fails to draw its essence from the collective bargaining agreement.

We find that the Agency fails to establish that the Arbitrator's determination that the Agency violated the collective bargaining agreement disregards the agreement or is implausible, irrational, or unfounded. We specifically reject the Agency's claim that the Arbitrator's use of the word "disciplinary" in his statement that he was overturning the Agency's disciplinary action because it was egregious, arbitrary, and punitive in any manner renders the Arbitrator's finding of a violation deficient. The Agency's claim constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions in finding that the Agency's coercion of the grievant was arbitrary and punitive and provides no basis for finding the award deficient. See, for example, U.S. Department of Agriculture, Farmers Home Administration Finance Office, St. Louis, Missouri and American Federation of Government Employees, Local 3354, 46 FLRA 881, 889 (1992). In our view, the Agency's exception represents an attempt by the Agency to have its own interpretation and application of the agreement substituted for that of the Arbitrator. As such, the exception provides no basis for finding that the award does not draw its essence from that agreement. See Oklahoma City Air Logistics Center, 47 FLRA at 102. Accordingly, we will deny this exception.

D. The Arbitrator's Award of Backpay Is Not Contrary to Law

The Agency contends that the award of backpay is contrary to law because the Back Pay Act does not apply to the Agency and its employees. Alternatively, the Agency contends that if the Act does apply, the award of backpay is deficient because the Arbitrator failed to cite specific provisions of laws, regulations, or the collective bargaining agreement that were violated by the execution of the promissory note. We conclude that the Agency fails to establish that the award of backpay is deficient.

We reject the Agency's claim that the award of backpay was not authorized because the Back Pay Act does not apply to the Agency and its employees. We rejected this same claim in AFGE, 45 FLRA 674. We agree with the Agency that AFGE was based, in part, on the Prevailing Rate Systems Act. However, the case was also based on Army Regulation (AR) 60-21 and Air Force Regulation (AFR) 147-15, a joint regulation that contains a provision administratively adopting the terms of the Back Pay Act.(2) We found that, by administratively adopting the terms of the Back Pay Act, AR 60-21/AFR 147-15 authorized backpay awards of arbitrators consistent with the terms of the Back Pay Act, 5 U.S.C. § 5596. AFGE, 45 FLRA at 688. We concluded that the regulatory provision mandates backpay compensation by the Agency when an appropriate authority, such as an arbitrator, finds that an aggrieved employee has suffered a loss of pay, allowances, or differentials as the result of an Agency personnel action that is unjustified or unwarranted under law, regulation, or the parties' collective bargaining agreement. Id. at 688-89. The Agency does not claim that AR 60-21/AFR 147-15 no longer applies. Therefore, based on our findings and conclusions in AFGE, we find in this case that the backpay award of the Arbitrator was authorized by AR 60-21/AFR 147-15.

In ordering the grievant made whole, the Arbitrator ordered backpay for the period from October 26, 1991, to January 17, 1992, and payment of the $5,070.56 settlement amount. We have dismissed the Agency's exceptions to these portions of the award because these portions relate to the grievant's removal. In addition, the Arbitrator ordered the grievant reimbursed for all funds that the Agency had received from all sources as a result of the note. The Arbitrator recognized that the Agency had been deducting and withholding money from the grievant's pay and applying those funds to payment of the promissory note. We find that the amounts deducted from the grievant's pay are clearly reimbursable under AR 60-21/AFR 147-15. We also find that the Arbitrator made all the findings necessary to support his award of backpay under AR 60-21/AFR 147-15. He specifically ruled that the Agency violated law, regulations, and the collective bargaining agreement when its representatives demanded execution of the promissory note and that the grievant would not have signed the note but for the coercion. Accordingly, the Arbitrator ordered the Agency to make the grievant whole for all pay that he lost as a result of signing the note and any other unfavorable consequences that he suffered. Neither AR 60-21/AFR 147-15 nor the Back Pay Act requires any more specificity. Therefore, we reject the Agency's claim that the Arbitrator was required to be more specific. See U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 781 (1993) (citing Wissman v. SSA, 848 F.2d 176 (Fed. Cir. 1988), in which the court indicated that there is no general statutory obligation that an arbitrator set forth specific findings). Accordingly, we will deny this exception.

V. Decision

The Agency's exceptions are dismissed to the extent that they pertain to the portions of the award relating to the settlement agreement and the award of backpay for the period from October 26, 1991, to January 17, 1992. The Agency's remaining exceptions are denied.


<