American Federation of Government Employees, Local 2207 and U.S. Department of Veterans Affairs Medical Center, Birmingham, Alabama

[ v55 p469 ]

55 FLRA No. 76

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2207
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
BIRMINGHAM, ALABAMA
(Agency)

0-AR-2768-001
(52 FLRA 1477 (1997))

_____

DECISION AND ORDER

May 18, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to a supplemental award of Arbitrator Roberta J. Bahakel filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      In her supplemental award, the Arbitrator held, in relevant part, that in the proceedings resulting in the original award, the Union did not raise certain arguments. However, in the Union's exceptions to the supplemental award, the Union claims that these arguments were advanced.

      For the following reasons, we conclude the supplemental award is not deficient under section 7122(a) of the Statute. Because we therefore conclude that the Union's exceptions to the original award raised issues not previously presented to the Arbitrator, we deny the exceptions to the original award pursuant to section 2429.5 of the Authority's Regulations.

II.     Background and Arbitrator's Award

A.     Background

      The facts of this case are fully set forth in American Federation of Government Employees, Local 2207 and U.S. Department of Veterans Affairs Medical Center, Birmingham, Alabama, 52 FLRA 1477 (1997) (VA, Birmingham). As relevant here, they show that in December 1989, the Agency and the Union signed an agreement settling an October 1989 grievance regarding the exposure of certain unit employees to asbestos. [n2]  The Union subsequently filed two more asbestos-related grievances, one dated May 23, 1991, and a separate one dated June 3, 1991. According to the Arbitrator, the May 1991 grievance contended that the December 1989 settlement agreement was inadequate and treated the majority of the bargaining unit members unfairly and unjustly. [n3]  The June 1991 grievance alleged that the entire bargaining unit was entitled to environmental differential pay and hazardous duty pay for ongoing exposure to asbestos from the date of employment or 1975, whichever date was later.

      Thereafter, the parties' dispute was submitted to arbitration. In the Arbitrator's original award, the Arbitrator found that the December 1989 settlement agreement barred arbitration of the grievance. The grievance was consequently denied.

      In VA, Birmingham, the Authority concluded that it was unable to determine which grievance -- May 1991 or June 1991 -- the Arbitrator was addressing. The Authority also found that it was unable to determine whether the Union argued before the Arbitrator, as it did in its exceptions, that the settlement agreement could not bar asbestos-related claims arising after the date of its execution or whether that agreement could bar grievances filed on behalf of the entire unit. Therefore, the Authority remanded the case to the parties and directed that, absent settlement, the Arbitrator clarify which [ v55 p470 ] grievance she found to be not arbitrable, and the issues, if necessary, that were covered by the May 1991 grievance. The Authority also directed the Arbitrator to determine "whether the Union raised in the initial hearing the issues of whether the settlement agreement could bar (1) grievances that arose after its execution, or (2) grievances filed on behalf of the entire unit." VA, Birmingham, 52 FLRA at 1483.

B.     Supplemental Award

      In her supplemental award, the Arbitrator clarified that the grievance that she ruled on in her original award was the grievance dated June 3, 1991.

      The Arbitrator also stated that she was unable to "find any reference by either of the parties as to whether the settlement agreement barred grievances that arose after its execution or grievances filed on behalf of the entire unit[.]" Award at 3. The Arbitrator, accordingly, found that these issues were not raised during the arbitration proceedings.

III.     Positions of the Parties

A.     Union's Exceptions

      In its exceptions, the Union claims that the Arbitrator erred in finding that at the hearing, the issues of whether the settlement agreement could bar grievances that arose after its execution or whether that agreement could bar grievances filed on behalf of the entire unit were not raised. In support of its position, the Union submits various excerpts from the transcript and from its post-hearing brief.

      With regard to whether the parties raised the issue of whether the settlement agreement barred asbestos-related claims arising after its effective date, the Union submits a portion of the transcript of the arbitration hearing. The Union maintains that such passages from the transcript, that were included in its post-hearing brief to the Arbitrator, "sufficiently counter the [A]rbitrator's assertion that the matter was not raised before her." Exceptions at 2.

      With regard to the related issue the Arbitrator was directed to address -- whether the settlement agreement could bar grievances on behalf of the entire bargaining unit -- the Union argues that the issue was raised at the hearing in a variety of ways. For example, the Union asserts that the issue was presented in its post-hearing brief in conjunction with the timeliness of the June 1991 grievance. The Union also contends that the issue was raised by the testimony of various witnesses who testified that "the settlement had no relation to the amount of asbestos to which a person had been exposed." Id. at 4. According to the Union, in answering these assertions, the Arbitrator "was squarely faced with the question as to whether she should wield the much used clause [of the settlement agreement] yet again -- or not." Id.

      In addition, the Union argues that, by its plain terms, the settlement agreement applies only to claims filed during the time period that extends until December 21, 1989. As such, the Union maintains that the Arbitrator's determination that the agreement bars claims related to asbestos exposure through June 3, 1991, is incorrect.

      Finally, the Union points out that the settlement agreement only encompassed employees who worked in the engineering service, dietetic service, and telephone switchboard room. The Union contends that as the June 1991 grievance was brought on behalf of all unit employees and, as the local vice president did not have the authority to sign an agreement that binds the entire unit, the Arbitrator's determination should be set aside.

B.     Agency's Opposition

      The Agency argues that the record fails to show that the Union raised the issues before the Arbitrator of whether the settlement agreement could bar grievances that arose after its execution or grievances filed on behalf of the entire bargaining unit. According to the Agency, the facts and circumstances demonstrate that these issues could have been presented but were not. Consequently, because the Union failed to present these issues to the Arbitrator, the Agency maintains, based on section 2429.5 of the Authority's Regulations, that the Union's exceptions should be denied.

IV.     The Award Is Not Based On A Nonfact

      As set forth above, in VA, Birmingham the Authority sought clarification of "whether the Union raised in the initial hearing the issues of whether the settlement agreement could bar (1) grievances that arose after its execution, or (2) grievances filed on behalf of the entire unit." 52 FLRA at 1483. In the supplemental award now before us, the Arbitrator stated that she was unable to find "any reference by either of the parties" regarding these issues. Award at 3. Consequently, she found that [ v55 p471 ] at the initial hearing, these issues were not raised. The Union's exceptions to the supplemental award allege that the Arbitrator's determination is incorrect. We construe the Union's contentions as a claim that the award is based on nonfact.

      To establish that an award is based on nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that was disputed at arbitration. Id. (noting that courts are not authorized to reconsider the merits of an award even when a party claims that the award rests on errors of fact).

      The Union's exceptions at issue here challenge a factual finding made by the Arbitrator in her decision on remand. In VA Birmingham, 52 FLRA 1477, the parties were instructed, absent settlement, to submit to the Arbitrator the question of what issues had been presented at the initial hearing. See Id. at 1483. In her supplemental award, the Arbitrator determined that the issue concerning the scope of the settlement agreement had not previously been presented. If the question remanded to the parties had not been in dispute, the parties would have had no reason to have submitted it to the Arbitrator for a factual determination. As the question was submitted to the Arbitrator for resolution, we conclude that there was no agreement on this issue and that it was being disputed by the parties. In these circumstances, the Arbitrator's finding regarding the question submitted on remand is not deficient under Lowry.

      Consistent with the foregoing, we conclude that the Union's exceptions to the supplemental award should be denied. Moreover, because the arguments concerning the settlement agreement were not raised by the parties at the initial hearing, we conclude, pursuant to section 2429.5 of the Authority's Regulations, that the Union's exceptions to the original award should also be denied.

V.     Decision

      The Union's exceptions are denied.


File 1: Authority's Decision in 55 FLRA No. 76
File 2: Opinion of Chair Segal


Footnote # 1 for 55 FLRA No. 76 - Authority's Decision

   Chair Segal's concurring opinion appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 76 - Authority's Decision

   The settlement agreement states in relevant part:

This agreement bars the filing of any action(s), except for the filing of a claim with the Office of Worker's Compensation, by the Union, as well as present and past employees of VAMC Birmingham for the period prior to October 1, 1983, and from October 1, 1983, and to the signing of this agreement [December 21, 1989].

VA, Birmingham, 52 FLRA at 1478 n.1.


Footnote # 3 for 55 FLRA No. 76 - Authority's Decision

   The Authority was not provided with a copy of th