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