American Federation of Government Employees, Local 2501 (Union) and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, New Cumberland, Pennsylvania (Agency)

[ v56 p1052 ]

56 FLRA No. 187

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2501
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION CENTER
NEW CUMBERLAND, PENNSYLVANIA
(Agency)

0-AR-3352

_____

DECISION

January 26, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Alexander Cocalis 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.

      The Arbitrator determined that the Union had breached a settlement agreement. We conclude that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      According to the record in this case, the Union represents bargaining-unit employees of a caretaker workforce located at the former site of the Defense Depot Memphis Tennessee, which was closed in 1997 pursuant to the Base Realignment and Closure Act. Under the Act, use and eventual ownership of the installation is to be turned over to a redevelopment corporation of Memphis and Shelby County, Tennessee. The caretaker workforce performs limited functions pending assumption of those activities by the redevelopment corporation.

      In 1996, the Union filed a grievance that alleged that the Agency failed to bargain with the Union over [ v56 p1053 ] the composition of the caretaker workforce. On June 7, 1997, Arbitrator Ed Bankston sustained the grievance and ordered the Agency to bargain with the Union. Arbitrator Bankston retained jurisdiction for purposes of interpretation and implementation of his award. The Agency did not file exceptions to the Bankston award and entered into an agreement with the Union concerning the composition of the caretaker workforce.

      In November 1999, the Agency notified the Union that it intended to phase out the security function of the caretaker workforce. The Union claimed that the proposed action violated the Bankston award, and on December 6, 1999, the Union requested a clarification by Arbitrator Bankston of his award. On February 20, 2000, Arbitrator Bankston ordered the Agency to cease and desist from phasing out the security function until he had conducted a full review of the issue.

      On April 6, 2000, Arbitrator Alexander Cocalis conducted a hearing on a union grievance over competitive areas. With the assistance of Arbitrator Cocalis, the parties entered into a settlement agreement that was made part of the arbitration record. The settlement agreement provided, in part: "In consideration of the Union dropping all grievances and/or third party proceedings pending as of April 6, 2000, excepting the official time and office equipment grievance, employer agrees to delay all pending reductions in force until June 30, 2001." Union's Exceptions, Exhibit 24. At the request of the Union, Arbitrator Cocalis retained jurisdiction over implementation of the settlement agreement.

      On June 14, 2000, Arbitrator Bankston clarified his 1997 arbitration award and determined that the Agency's awarding of bargaining-unit work to individuals outside the unit was impermissible and constituted a violation of his 1997 award. In a letter to Arbitrator Bankston on July 6, 2000, the Union alleged violations by the Agency of the 1997 award, as clarified, and requested that Arbitrator Bankston order the Agency to abide by the 1997 award, as clarified. On July 24, 2000, the Agency requested the assistance of Arbitrator Cocalis in enforcing the April 6, 2000 settlement agreement. On August 9, 2000, Arbitrator Cocalis issued an award, to which the Union has filed the exceptions in this case, resolving the dispute over the terms of the April 6, 2000 settlement agreement.

      Arbitrator Cocalis determined that the Union had breached the settlement agreement. To Arbitrator Cocalis, there was no doubt that the matter decided by Arbitrator Bankston was pending on April 6, 2000. He also had no doubt that the matter decided by Arbitrator Bankston was encompassed by the agreement to drop pending cases, as it was discussed several times during the settlement negotiations. He specifically rejected the Union's argument that the matter before Arbitrator Bankston had already been decided and all that was pending was the Union's request for clarification. He also rejected the argument that in any event, he did not have the authority to supercede the Bankston award. He ruled that he was only holding that the Union breached the settlement agreement of April 6, 2000, by not dropping the grievance, and that he was not superceding the Bankston award. Arbitrator Cocalis found that "[t]he Government made several major concessions to obtain the agreement. The Union cannot have its cake and eat it, too." Cocalis Enforcement Award at 1. As a remedy, Arbitrator Cocalis "declare[d] the Bankston award null and void." Id.

III.     Positions of the Parties

      The Union primarily contends that Arbitrator Cocalis' determination that a grievance was still pending before Arbitrator Bankston because there was a motion for clarification pending is based on a nonfact and fails to draw its essence from the settlement agreement and the parties' collective bargaining agreement. The Union also contends that Arbitrator Cocalis' remedy of declaring Arbitrator Bankston's award null and void is contrary to law and in excess of Arbitrator Cocalis' authority.

      The Agency contends that the Union fails to establish that the award is deficient. The Agency argues that the award is not based on a nonfact and does not fail to draw its essence from either the settlement agreement or the collective bargaining agreement because there was no question that the Union's clarification request was pending before Arbitrator Bankston at the time of the settlement agreement. In the Agency's view, whether the pending clarification request is to be characterized as a grievance, a third party proceeding, or something else was for Arbitrator Cocalis to determine. In addition, the Agency argues that Arbitrator Cocalis' remedy is not contrary to law because parties can always agree to withdraw a previous arbitration award.

IV.     Analysis and Conclusions

A.     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 the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). However, [ v56 p1054 ] the Authority will not find an award deficient as based on a nonfact with respect to an arbitrator's determination on any factual matter that was disputed at arbitration. See id. at 594. The Union challenges Arbitrator Cocalis' determination that a grievance was still pending before Arbitrator Bankston. As this matter was disputed before Arbitrator Cocalis, the Union's exception fails to establish that the award was based on a nonfact. Moreover, to the extent the Union is actually challenging Arbitrator Cocalis' interpretation of the settlement agreement, an interpretation of an agreement cannot be challenged as a nonfact. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 501 (2000). Accordingly, we deny this exception.

B.     The award does not fail to draw its essence from the agreements.

      To establish that an award fails to draw its essence from an agreement, the appealing party must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement so as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). As the Union concedes, a motion for clarification was pending before Arbitrator Bankston on the date of the settlement agreement. Consequently, we conclude that the Union fails to establish that Arbitrator Cocalis' ruling that the April 6 settlement agreement included the matter before Arbitrator Bankston is unfounded, irrational, or implausible or evidences a manifest disregard of the settlement agreement or the parties' collective bargaining agreement. Accordingly, we deny this exception.

C.     The remedy is not contrary to law.

      We review de novo questions of law raised by an arbitration award and exceptions to the award. See, e.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995). Based on that review, we deny the Union's exception. Even though the Bankston award may have become final and binding, parties are free to agree to modify a final and binding award. Cf. United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Cal., 49 FLRA 510, 514 n.3 (1994) (following the arbitrator's issuance of his award, the parties mutually agreed to have the arbitrator delete a portion of the award). Furthermore, a union may contractually waive its rights under the Statute and an arbitrator may enforce that waiver. Cf. United States Dep't of Housing and Urban Development, Boston, Mass., 38 FLRA 1542, 1550 (1991). Even if Bankston's award were correct and no basis were provided for finding it deficient, the Union agreed to forego the benefits of all pending third-party proceedings. Accordingly, the award is not contrary to law.

D.     The remedy does not exceed Arbitrator Cocalis' authority.

      Arbitrators exceed their authority when they resolve an issue not submitted to arbitration; fail to resolve an issue that was submitted to arbitration; disregard specific limitations on their authority; or award relief to persons who are not encompassed within the grievance. See, e.g., United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995). The Union fails to show that Arbitrator Cocalis exceeded his authority. The Union's only claim in this regard is a reframing of its contrary to law arguments. As we decided above, the Union fails to establish that