53:0460(52)AR - - DOD, Defense Logistics Agency, Defense Distribution Region West, Tinker AFB, OK and AFGE Local 916 - - 1997 FLRAdec AR - - v53 p460



[ v53 p460 ]
53:0460(52)AR
The decision of the Authority follows:


53 FLRA No. 52

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE DISTRIBUTION REGION WEST

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2859

_____

DECISION

September 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Member Wasserman for the Authority.

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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator determined that the grievances were arbitrable. We conclude that the award is deficient, and we set the award aside.

II. Background and Arbitrator's Award

The national office of the American Federation of Government Employees (AFGE) is the exclusive representative of Defense Logistics Agency (DLA) employees in a nationwide consolidated unit. AFGE has delegated to the DLA Council of AFGE Locals (DLA Council) the authority to deal with DLA on all labor relations matters, including collective bargaining. Award at 11; Agency's Exceptions, Attachment 2 (copy of delegation from AFGE to DLA Council). Defense Distribution Region West (DDRW) is a primary subdivision of DLA. AFGE Local 916 is the local representative for employees of the DDRW component at Tinker Air Force Base.

DLA and the DLA Council have a master labor agreement covering the consolidated unit. In 1995, DDRW and the DLA Council Locals of DDRW (DDRW Council) entered into a supplemental agreement. Later in 1995, DDRW and the DLA Council entered into a number of memoranda of agreement (MOAs). The MOAs at issue in this case concern internal dispute resolution and the negotiated grievance procedure. These MOAs were executed by designated representatives of the Agency and by the president of the DLA Council, Frank Lakis, and a DLA Council vice president.

The chief steward of AFGE Local 916 invoked arbitration on four grievances. The Agency claimed that the grievances were not procedurally arbitrable because they failed to comply with the MOAs on internal dispute resolution and the negotiated grievance procedure. The Arbitrator ruled that the grievances were arbitrable because the MOAs were not valid.

In evaluating the validity of the MOAs, the Arbitrator identified Frank Lakis as the president of the DDRW Council and noted that the DLA Council had negotiated the master labor agreement, but was not involved in the negotiation of the MOAs. Based on this understanding, the Arbitrator addressed the issue of whether parties lower than the level of exclusive recognition could modify the negotiated grievance procedure in the master labor agreement. He determined that they could not. He found that there had been no notice to the DLA Council and that the DLA Council, which has delegated authority to negotiate on behalf of AFGE, had not negotiated the changes. He concluded that the union signatories were not authorized to execute the MOAs and that the procedures for modifying the master labor agreement had not been followed. Consequently, he found that the MOAs impermissibly conflicted with the master labor agreement.

III. Exceptions

A. Agency Contentions

The Agency contends that the award is contrary to law, fails to draw its essence from the collective bargaining agreements, and is based on a nonfact. The Agency argues that the award is deficient on all of these grounds because the MOAs were entered into by authorized representatives of the parties. The Agency argues that National AFGE has delegated authority for all collective bargaining to the DLA Council and that the Arbitrator misapprehended the position held by Frank Lakis.

B. Union's Opposition

The Union contends that the Arbitrator correctly determined that the MOAs were not valid. The Union asserts that the MOAs are not enforceable because they conflict with the agreements and because the union signatories were not authorized to negotiate the MOAs.

IV. Analysis and Conclusions (1)

Under section 7122(a)(2) of the Statute, the Authority will find an arbitration award deficient when the appealing party establishes that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry AFB). However, the parties must not have been responsible for the misapprehension of the arbitrator. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, 45 FLRA 674, 681-82 (1992). In addition, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Lowry AFB, 48 FLRA at 594. We conclude that the award is deficient as based on a nonfact.(2)

The Arbitrator identified Frank Lakis as the president of the DDRW Council and determined that he was not authorized to agree to the MOAs. In rejecting the authority of Frank Lakis, the Arbitrator ruled that the MOAs were not valid because they were not executed by a designated representative of the DLA Council. He specifically expressed his understanding that the DLA Council was not involved in the two MOAs disputed in the grievances before him. Award at 11. Based on this understanding, he concluded that Frank Lakis, as president of the DDRW Council, was not authorized to agree to the MOAs because he was not the designated representative of the DLA Council. Id. at 16. However, the Arbitrator failed to apprehend that Frank Lakis was president of the DLA Council.

We conclude that, had the Arbitrator understood that Frank Lakis was president of the DLA Council, the Arbitrator would not have found the MOAs to be invalid. Thus, the central finding underlying his award is clearly erroneous, but for which he would have reached a different result.(3) See U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374 (1985); Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, AFL-CIO, San Antonio, Texas, 6 FLRA 292 (1981). Moreover, there was no dispute over what position Frank Lakis held, and there is nothing in the record to indicate that the parties were responsible for the Arbitrator's misapprehension.

In concluding that the award is deficient, we find that the MOAs were valid and enforceable. See generally American Federation of Government Employees, Local 2207 and U.S. Department of Veterans Affairs Medical Center, Birmingham, Alabama, 52 FLRA 1477, 1480-81 (1997) (discussing principles of agency law). We agree with the Arbitrator that the designated representatives of the Agency and the president of the DLA Council, as the chief bargaining agent of the exclusive representative, were authorized to agree to the MOAs and to modify the master labor agreement by mutual agreement. See U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 170 (1991) (it is well established that the parties may alter or modify the terms of their collective bargaining agreement). Furthermore, the validity of the MOAs and the authority of Frank Lakis as president of the DLA Council is confirmed by a report of the exclusive representative.(4) Accordingly, we set the award aside.(5)

V. Decision

The award is set aside.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Because the only issue submitted to arbitration was the question of arbitrability, we find that the exceptions are not interlocutory. See United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739, 743-44 (1988).

2. Although the Arbitrator determined that the grievances were procedurally arbitrable, the exceptions do not directly dispute the Arbitrator's determination of arbitrability. Rather, the exceptions challenge the Arbitrator's determination that the MOAs were invalid. Consequently, we do not defer to the Arbitrator's ruling that the grievances were procedurally arbitrable. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army and Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 186 (1995) (procedural arbitrability rulings may be challenged on grounds that do not directly dispute the determination on arbitrability).

3. In finding the award deficient, we have not deferred to the Arbitrator's determination that the MOAs impermissibly conflicted with the master labor agreement because that determination was based on the Arbitrator's misapprehension of the position held by Frank Lakis.

4. As a result of internal union complaints, AFGE's National Executive Council authorized the National President to appoint a committee to conduct an investigation of the DLA Council. In November 1996, the committee issued its report, and the Agency has submitted a copy of the report for consideration by the Authority. The submission is unopposed and is relevant to the resolution of the Agency's exceptions. Therefore, we have accepted and considered the submission. See, e.g., American Federation of Government Employees, Local 3197 and U.S. Department of Veterans Affairs Medical Center, Seatt