File 2: Opinion of Chair Segal
[ v55 p472 ]
Phyllis N. Segal, Chair, Concurring
I agree with my colleagues that the Arbitrator's original award is not deficient because the Union's arguments concerning the settlement agreement were not raised in the arbitration proceeding, and therefore may not be raised to the Authority. This conclusion depends on the validity of the Arbitrator's supplemental award, which the Union excepts to here. I write separately to explain why I find that the supplemental award is not deficient.
The unusual posture of this case results from the Authority's remand following the Union's earlier exceptions to the original award. VA, Birmingham, 52 FLRA at 1483. In its decision on those exceptions, the Authority determined that a remand was necessary to ascertain whether two of the Union's arguments -- that the settlement award did not bar grievances arising after its execution, and did not bar grievances filed on behalf of the entire unit -- had ever been presented to the Arbitrator. This question was raised by the Authority, not by the Agency, which did not even file an opposition to the original exceptions.
In her supplemental award, the Arbitrator states that the Union had not advanced either argument in the arbitration proceeding. The Union's exception now before us asserts that this arbitral finding is deficient because it is a nonfact. According to the Union, briefs submitted to the Arbitrator and testimony at the hearing establish that the arguments were raised in the arbitration proceeding.
The majority rejects the Union's nonfact exception because it finds that the fact in question was disputed by the parties, reasoning that, if the Agency and Union had agreed on the fact, then the parties would not have submitted the issue to the Arbitrator on remand. [n1] My difficulty with this reasoning is that it creates a "catch-22" for the Union: the only way the Union could have avoided the Authority finding that the fact was disputed (and, as a result, denying a traditional nonfact review of the challenged finding) was to have agreed with the Agency that it never raised the arguments below. I note, in this regard, that it does not appear from the record that the parties were provided any opportunity by the Arbitrator on remand to advance their differing views on whether the Union had raised arguments concerning the settlement agreement in the original arbitration proceeding.
The majority's ruling, in effect, denies the Union any review of the ruling the Authority required it to obtain. In these unusual circumstances, it is only fair in my view to examine whether the finding to which the Union now excepts satisfies the Lowry test for resolving a nonfact exception. Under this test, the excepting party must establish that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See Lowry, 48 FLRA at 593. This test is appropriately deferential to an arbitral finding because the "'parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them . . . .'" Id. (citing United Paperworkers v. Misco, Inc., 484 U.S. 29, 45 (1987)).
Applying this test, I find that the record plainly demonstrates that the fact -- whether the Union raised below the arguments concerning the settlement agreement -- is "central": if it were not, a remand would not have been necessary. However, the Union's exception does not establish that the finding is "clearly erroneous". In particular, the portions of the transcript and post-hearing brief relied on by the Union are ambiguous at best. For example, the Union points to the assertion in its post-hearing brief that it was necessary to "see whether or not the parties subsequently acted as though they were bound" by the settlement agreement, as support for its claim that it argued to the Arbitrator that the settlement agreement could not bar grievances file