File 2: ALJ's Decision

[ v56 p1022 ]


Bench Decision

[Errors in the transcript have been corrected]

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UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY

_____

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3137
Respondent

and

DEPARTMENT OF AGRICULTURE
U.S. FOREST SERVICE
ALBUQUERQUE, NEW MEXICO
Charging Party

Case No. DA-CO-90649

U.S. Federal Courthouse
Bonito Courtroom
333 Lomas, NW
Albuquerque, NM 87103

TUESDAY, APRIL 4, 2000

      The above-entitled matter came on for hearing, pursuant to notice, at 8:30 a.m.

BEFORE: GARVIN LEE OLIVER
Administrative Law Judge

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APPEARANCES:

On behalf of the Respondent:

JESSE SALCEDO, National Representative
10th District
American Federation of Government Employees
10 Pinon Road
Edgewood, NM 87015-9001

On behalf of the Charging Party:

CHARLES M. De CHATEAUVIEUX, Esq.
Federal Labor Relations Authority
525 S. Griffin Street, Suite 926
Dallas, TX 75202-5093

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      15-minute recess.

(Off the record.)
(On the record.)

           JUDGE OLIVER: Back on the record. This is a bench decision rendered at the close of the hearing pursuant to Section 2423.39 before the Authority's Regulations.

           The Unfair Labor Practice complaint alleges that the respondent committed an Unfair Labor Practice in violation of 7116(b)(5) of the Federal Service Labor Management Relations Statute by failing to comply with Article 13, Section E of the parties' collective bargaining agreement by refusing to pay its share of the arbitration expenses of bargaining unit employee Aileen Garcia.

           The Respondent's answer denied any violation of the Statute and asserted that all parties, including the Arbitrator, had agreed that the Union's share of the Arbitrator's fees would be paid by the Grievant, Aileen Garcia.

           All parties were represented during the course of the hearing for full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses.

           Based on the entire record, including my observation of the witnesses and their demeanor, I make the following finding of facts and conclusions of law and recommendations.

           Findings of facts. The American Federation of Government Employees, AFL-CIO, Local 3137, is the exclusive

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representative of the unit of employees appropriate for collective bargaining at Respondent, Cibola National Forest, Albuquerque, New Mexico facility. AFGE Local 3137 and the Charging Party are parties to a collective bargaining agreement covering employees in the bargaining unit.

           Article 13, Section E of the parties' collective bargaining agreement provides that the Arbitrator's fee and the expenses of arbitration, if any, shall be borne equally by the management and the Union. [ v56 p1023 ]

           On May 27, 1998, an arbitration hearing was held concerning the arbitration of the matters concerning the bargaining unit employee Aileen Garcia.

           On February 6, 1999, the Arbitrator rendered his opinion and award concerning the arbitration, and the Arbitrator submitted his invoice for the arbitration expenses.

           Since February 6, 1999, the Respondent Local 3137 has refused to pay the outstanding balance of the Garcia arbitration expenses.

          It appears from an exhibit to the Respondent's answer that an earlier arbitration hearing was held in this matter involving the parties, and that the Arbitrator agreed on June 3, 1997, that the Union's half of the second arbitration would be paid by the Grievant and that Local 3137 would not be responsible for any fees except for the arbitration case on the threshold issues.

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           Respondent's Exhibit 1, a letter by Arbitrator dated June 14, 1997, reflects that, "in accordance with the Agreement of Parties," the Union should send its check for one-half of the first hearing and that the $800 paid by the Grievant "will be credited to her bill for the second hearing charges."

           The General Counsel's Exhibit 3 reflects that the Arbitrator is continuing to credit $800 towards the second hearing but is now insisting that the Union pay the balance.

           Conclusions of law. The General Counsel alleges that by its failure to pay its share of the Garcia arbitration expenses, the Respondent has committed an Unfair Labor Practice in violation of 5 U.S.C. 7116(b)(5), constituting a repudiation of Article 13, Section E of the parties' collective bargaining agreement.

           In Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858 (1996), the Authority clarified its analytical framework for determining whether a party's failure or refusal to honor an agreement constitutes a repudiation.

           Consistent with the framework that was set forth in Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991), the Authority held that it will examine two elements of analyzing an allegation of repudiation.

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           One, the nature and scope of the alleged breach of an agreement; that is, whether the agreement was clear and patent and the nature of the agreement provision allegedly breached. Did the provision go to the heart of the parties' agreement? The examination of either element may require an inquiry into the meaning of the agreement provision allegedly breached.

           With regard to first element, the Authority states that it is necessary to show that the respondent's action constituted a clear and patent breach of the terms of agreement. If the meaning of a particular agreement term is unclear and the parties act in accordance with a reasonable interpretation of that term, that action will not constitute a clear and patent breach of the terms of the agreement. In such a case, it is not necessary to examine the second element according to the Authority.

           I conclude that the Union's failure to pay the remaining balance, that the Arbitrator has insisted be paid, and to insist that the Arbitrator look soley to the Grievant for payment is not a clear and patent breach of the collective bargaining agreement, but rather is a reasonable interpretation of the side agreement between the Arbitrator and the Union and the Grievant. This is to the first and only arbitration involving this Local, and it appears in other respects, the existing practice is that the parties adhere to the collective bargaining agreement.

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           I conclude that the facts in this case do