U.S. Department of Defense, Dependents Schools and Federal Education Association

[ v55 p1108 ]

55 FLRA No. 180

U.S. DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
(Agency)

and

FEDERAL EDUCATION ASSOCIATION
(Union)

0-AR-3146

_____

DECISION AND ORDER

November 30, 1999

_____

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

Decision by Chair Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Marvin J. Feldman 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.

      The Arbitrator found that the Agency violated a memorandum of understanding (MOU) between the parties when it revised its regulations without properly notifying the Union that changes were being made to existing policy. Accordingly, the Arbitrator declared the Agency's revised regulations to be "for naught." Award at 13.

      For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      In November 1996, the parties orally agreed that whenever the Agency issued a new regulation, it would provide a document summarizing any changes the regulation made to existing policy. The Agency executed and signed a written MOU memorializing the oral agreement, dated it November 1996, and forwarded it to the Union. Several months later, a Union official ("the Union signatory") signed the MOU, back-dated it to the same November 1996 date that the Agency had used, and returned it to the Agency. [ v55 p1109 ]

      In the meantime, the Agency substantially changed its regulations concerning waivers of terminations of employees' living quarters allowances (LQAs). The Agency did not provide a document summarizing the changes made to existing policy regarding LQAs. When some employees' LQA benefits were terminated under the new regulations, the Union filed a grievance on behalf of all bargaining unit members. The grievance, which named one employee ("the named employee"), was submitted to arbitration.

      The parties did not stipulate the issue before the Arbitrator. The Arbitrator stated that the "true issue" was "whether the MOU had vitality so as to affect the validity of the new regulations." Award at 12.

      The Arbitrator determined that the grievance was an arbitrable "group grievance" and not an untimely grievance on behalf of one employee. Id. at 9. He concluded that the named employee was explicitly listed only as an example of an employee who had her LQA benefits terminated. Additionally, the Arbitrator concluded that the case involved an ongoing grievance because the new regulations had a continuing impact on bargaining unit employees.

      The Arbitrator found that the parties had reached an oral agreement in November 1996, and that the Agency intended to be bound by the MOU when it signed it and forwarded it to the Union later that month. The Arbitrator also determined that the Union signatory's back-dating of his signature evinced the Union's understanding that the MOU had been in effect since November 1996. Accordingly, the Arbitrator determined that the MOU was in effect at the time the Agency forwarded its revised LQA regulations to the Union. Because the Agency failed to comply with the MOU's requirements when it delivered the revised regulations to the Union, the Arbitrator held the Agency's revised regulations "for naught". Id. at 13.

III.     Positions of the Parties

A.     Agency

      The Agency claims that the award fails to draw its essence from the parties' agreement in two respects. First, the Agency contends that the Arbitrator erred in finding that the grievance was a timely filed "group grievance" within the meaning of the parties' agreement. Exceptions at 22. [n1]  Second, the Agency asserts that the Arbitrator erred by finding that this case involved a "continuing violation" within the meaning of the parties' agreement, because the alleged violation did not cause continuing harm to the named employee. Id. at 26.

      The Agency maintains that it was denied a fair hearing because the Arbitrator: (1) contradicted himself by noting testimony by Agency witnesses that they did not consider the MOU to be in effect in November 1996, and then finding that the MOU was effective from that date; (2) held the Agency to an insurmountable burden of proof by requiring the Agency to demonstrate that the unsigned MOU was ineffective prior to the time the Union signed it; and (3) refused to hear any evidence regarding the Agency's defense to what it perceived to be an unfair labor practice (ULP) allegation against it.

      The Agency also alleges that the award is based on a nonfact. According to the Agency, a central fact underlying the award is the Arbitrator's finding that the parties intended to be bound by the MOU in November 1996. The Agency contends that the Arbitrator could not know what the Union signatory intended by back-dating his signature to November 1996, because the signatory had passed away by the time of the hearing and thus did not testify. The Agency also claims that there is no evidence that the Agency intended to be bound by the MOU in November 1996.

      The Agency argues that the award is contrary to section 7114(b)(5) of the Statute and Authority precedent because the Arbitrator found that the MOU was effective when only one party had signed it. As support for this contention, the Agency relies on International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560-61 (1990) (Panama Canal Commission), and Internal Revenue Service, Philadelphia District Office, 22 FLRA 245, 255 (1986). The Agency also maintains that the Arbitrator's award permits the Union to "avoid its obligations under section 7114(b)(5) to execute a written agreement embodying agreed upon terms[.]" Exceptions at 11-12, citing American Federation of Government Employees, AFL-CIO, Local 3732, 16 FLRA 318, 330 (1984).

      Finally, the Agency contends that the award is ambiguous, making compliance impossible, because the Agency is unable to determine "what the time frame for his award is and whether any employees who benefitted from the changes contained in the [Agency regulations] [ v55 p1110 ] will be subject to recoupment procedures for LQA payments made illegal by his award[.]" Exceptions at 28. The Agency requests that the Authority remand the award to the parties for resubmission to an arbitrator of their choice.

B.     Union

      The Union agrees with the Agency that the Arbitrator mischaracterized the grievance a group grievance, but argues that this characterization constitutes harmless error. According to the Union, this case involves an "association grievance," and the parties' agreement provides that such grievances arising over continuing violations may be filed at any time. Opposition at 17. [n2] 

      The Union contends that the Arbitrator did not deny the Agency a fair hearing. The Union also contends that the Agency's nonfact assertions merely disagree with the Arbitrator's factual findings, and that such disagreement does not constitute a basis for finding the award deficient.

      The Union asserts that the award is not contrary to section 7114(b)(5) of the Statute. In this connection, the Union maintains that the Arbitrator's conclusion that the parties had an enforceable agreement in November 1996 was based on undisputed evidence that the parties had reached an oral agreement at that time. Finally, the Union contends that the award is neither ambiguous nor impossible to implement.

IV.     Analysis and Conclusions

1.     The Arbitrator Did Not Err in Finding That the Grievance Was Timely.

      An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See, e.g., U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 55 FLRA 596, 598 (1999). An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995) (Exchange Service). Such grounds include arbitrator bias or the fact that the arbitrator exceeded her or his authority. See id.

      Both of the Agency's essence arguments -- that the Arbitrator erred in finding that the grievance constituted a group grievance, and that he erred in finding that there was an ongoing violation -- challenge the Arbitrator's determination that the grievance was timely filed. As a result, the Agency's arguments do not provide a basis for finding the award deficient, and we deny the exception. [n3]  See U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996).

2.     The Arbitrator Did Not Deny the Agency a Fair Hearing.

      An award will be found deficient on the ground that an arbitrator failed to conduct a fair hearing when it is established that an arbitrator's refusal to hear or consider pertinent or material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceedings as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).

      With regard to the Agency's assertion that the Arbitrator contradicted himself, the Agency has failed to demonstrate a contradiction between the Arbitrator's discussion of the facts and his conclusions. Although the Arbitrator summarized the Agency's testimony regarding the validity of the MOU, he did not state whether or not he found that testimony convincing. As such, when the Arbitrator reached a conclusion that was at odds with that testimony, he did not contradict himself.

      Further, the Agency's contention that the Arbitrator held the Agency to an insurmountable burden of proof mischaracterizes the Arbitrator's reasoning. The Arbitrator considered the Agency's testimony that it believed it was not bound by the MOU in November [ v55 p1111 ] 1996. See Award at 10. However, the Arbitrator looked at all the evidence before him in reaching the conclusion that the Agency intended to be bound by the agreement in November 1996. Rather than holding the Agency to an insurmountable burden of proof, the Arbitrator simply found that the Agency's assertions were not supported by the evidence.

      Finally, we reject the Agency's contention that it was denied a fair hearing because the Arbitrator refused to consider arguments pertaining to the Agency's defense to what it perceived to be a ULP allegation against it. The Arbitrator explicitly found that the ULP issues raised by both the Agency and the Union were not properly before him and were more appropriate for resolution in a different forum. The Authority has held that, in the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issues to be resolved in a grievance. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 55 FLRA 322, 325 (1999). The parties did not stipulate the issue to be decided by the Arbitrator, and the Agency has not demonstrated that the Arbitrator's formulation of the issues before him prejudiced the Agency so as to affect the fairness of the proceedings as a whole.

      Accordingly, we deny the exception.

3.     The Award Is Not Based on a Nonfact.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See 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). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citation omitted).

      The Agency alleges, for a variety of reasons, that the Arbitrator erred in finding that the parties intended to be bound by the MOU in November 1996. However, this issue was clearly disputed before the Arbitrator. See Award at 10 ("The issue of when [the MOU] became an 'agreement' of the parties is at issue . . . ."). As such, the Agency's exception does not provide a basis for finding the award deficient, and we deny the exception.

4.     The Award Is Not Contrary to Section 7114(b)(5) of the Statute.

      The Authority reviews the questions of law raised by the award and the Agency's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. Id.

      Under section 7114(b) of the Statute, the duty of an agency and an exclusive representative includes the obligation to negotiate "with a sincere resolve to reach a collective bargaining agreement[.]" If an agreement is reached, then the parties are obligated, "on the request of any party" to the negotiations, to execute a written document embodying the agreed terms. 5 U.S.C. § 7114(b)(5). See U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 317 (1997) (Standiford Air Traffic Control Tower), and cases cited therein. An "agreement," within the meaning of section 7114(b)(5) of the Statute, is reached when authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining. Panama Canal Commission, 36 FLRA at 560.

      Although parties are required, on request, to reduce to writing any oral agreement they have reached, the fact that an agreement need only be reduced to writing when requested implies that a written agreement is not always necessary. Consistent with this, the Authority has held that parties may enter into oral agreements, and that such agreements bind the parties. See, e.g., Standiford Air Traffic Control Tower, 53 FLRA at 317. Contrary to the assertion of the Agency, Panama Canal Commission did not establish a rule that only written agreements may bind the parties. In U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, Washington Plate Printers Union, Local 2, 44 FLRA 926, 940 (1992) (DOT), the Authority upheld the arbitrator's finding that the parties had entered a binding, "tacit" agreement. In so holding, the Authority distinguished Panama Canal Commission on the ground [ v55 p1112 ] that there was no finding by an arbitrator in that case that the parties had entered any sort of agreement. Consistent with the Authority precedent set forth above, parties may be bound by their oral, or even "tacit," agreements.

      The Arbitrator found that, in November 1996, the parties reached an oral agreement that was "signed, executed and dated by the employer in its memorialized form[,]" and that they intended to be bound by that agreement. Award at 12. The Agency has not demonstrated that the Arbitrator's conclusion is contrary to law. Consistent with this finding, the fact that the Union did not immediately sign and return the MOU does not affect the binding nature of the parties' agreement. Accordingly, the Agency has not demonstrated that the award is deficient as contrary to section 7114(b)(5) of the Statute, and we deny the exception.

5.     The Award Is Not So Ambiguous as to Make Compliance Impossible.

      In order for an award to be found deficient on the basis that it is incomplete, ambiguous, or contradictory so as to make implementation impossible, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs, Medical Center, Northport, New York, 51 FLRA 444, 448 (1995), citing Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 66 (1981). Here, the Arbitrator declared the revised Agency regulations "for naught[,]" Award at 13, but did not direct the Agency to take any specific action. As such, even though the award is not complete in this regard, implementation consistent with its holding is not impossible. Accordingly, we deny the exception.

V.     Decision

      The Agency's exceptions are denied. [n4] 





Footnote # 1 for 55 FLRA No. 180 -

   Article 12, Section 7 of the parties' agreement, entitled "Group Grievance," provides:

When a group of unit employees has an identical grievance, it will be considered as an individual grievance of one unit employee and will be processed as a single grievance in the name of the unit employee designated to act for them. All unit employees electing to join in the grievance must be identified and must sign the grievance at the stage it is put in writing.

Exceptions at 22 (emphasis removed).


Footnote # 2 for 55 FLRA No. 180 -

   The Union relies on article 12, sections 5B and 7B1. Section 5B provides: "Association or Employer grievances arising over th[e] interpretation and application of this Agreement that are not related to a s