U.S. Department of Defense, Rhode Island National Guard, Cranston, Rhode Island (Agency) and Association of Civilian Technicians, Rhode Island Chapter (Union)

[ v57 p594 ]

57 FLRA No. 113

U.S. DEPARTMENT OF DEFENSE
RHODE ISLAND NATIONAL GUARD
CRANSTON, RHODE ISLAND
(Agency)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
RHODE ISLAND CHAPTER
(Union)

0-AR-3406

_____

DECISION

November 30, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

Decision by Member Armendariz for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator George F. McInerny filed by the Agency under § 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 to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement and §  7116(a)(1) and (5) of the Statute by prohibiting an individual from serving on the Union's bargaining team. As a result, the Arbitrator ordered the Agency to make no demands or requests that the Union use or not use any person on its bargaining team. For the reasons that follow, we deny the exceptions.

II.     Background and Arbitrator's Award

      The dispute in this case concerns whether the Union, Association of Civilian Technicians, Rhode Island Chapter (hereinafter "Union" or "local office"), may include a representative from its national office, Association of Civilian Technicians (hereinafter "national union" or "national office"), on its contract negotiation team. [ v57 p595 ]

      Prior to commencing bargaining over a successor agreement, the Union submitted a list of negotiators to the Agency that included a chief negotiator from the national office and three representatives from the local office. The Agency objected to the list, arguing that the presence of a chief negotiator from the national office was barred by Section III(a)(1) of a Memorandum of Understanding (MOU). That section states that "[t]he negotiating team for the [Union] will be comprised of four (4) members of the bargaining unit. One (1) will be chief spokesman and three (3) members." Award at 6. The Agency claimed that because the national representative was not a member of the local bargaining unit, the representative could not participate on the negotiation team.

      The parties did not stipulate the issues to be resolved at arbitration. The Arbitrator identified two issues: whether he had jurisdiction to render a decision in this case insofar as it raised issues concerning "breach of contract and the duty to bargain in good faith[,]" id. at 2, that are appropriate for resolution in an unfair labor practice proceeding; and how the MOU should be interpreted, in terms of the composition of the Union's bargaining team.

      First, the Arbitrator found that he was not precluded from addressing the claimed unfair labor practice issues. According to the Arbitrator, "the fact that . . . conduct may have constituted an unfair labor practice under the FLRA, does not mean that the FLRA is the exclusive forum in which the matter may be considered." Id. at 16.

      Next, with respect to the interpretation of the MOU, the Arbitrator rejected the Agency's assertion that when the Adjutant General certified an exclusive representative in 1969, the certification extended only to the local union and not also to the national office. The Arbitrator found that the certification of exclusive recognition granted by the Adjutant General in 1969 "is addressed to either two separate entities, or to one joint representative." Id. at 17. As such, the Arbitrator determined that the national union "is a part of the exclusive bargaining representative" that was certified in 1969. Id.

      The Arbitrator further found that the MOU negotiated by the parties did not operate to preclude representatives of the national union from participating on contract negotiation teams. While acknowledging that the MOU was "clear" in specifying that the four negotiators would be members of the bargaining unit, the Arbitrator found that "other considerations" had to be taken into account. Id. at 18. In particular, the Arbitrator found it necessary to examine the parties' bargaining history and other sections of the MOU that conflicted with Section III(a)(1).

      With regard to the parties' bargaining history, the Arbitrator found that, although language identical to Section III(a)(1) of the MOU had existed in prior agreements, representatives from the national union had been an accepted part of earlier negotiations between the parties. Specifically, the Arbitrator found that, in the negotiations for the MOU, "there was no objection by management to the participation and signature" of a representative from the national office. Id. The Arbitrator also found that the "past practice" of including a national representative on negotiation teams "had gone on for at least nine years, maybe longer, and this practice was undenied either in testimony or documentary evidence." Id. at 19.

      With regard to other provisions of the MOU, the Arbitrator stated that they "can only be read as contemplating that there will be people on the negotiating team who were not unit members." Id. at 18. In particular, the Arbitrator cited Section III(a)(4), under which "members of the negotiating team of the Association who are agency employees will be on official time during negotiations." Id. The Arbitrator also cited Section VII(2), which provides that "[t]he negotiating members of the Association who are agency employees, reference Section III para. (a) are authorized excused absence for participation in the negotiation of the agreement." Id. Finally, the Arbitrator noted Section VII(b), which states that "[m]embers of the Association negotiating committee who are agency employees may appear in civilian clothing for the conduct of all negotiations, preparation for negotiations and impasse resolutions. Travel time to and from the negotiation site will be permitted for negotiating members of the Association who are agency employees." Id. at 19. Based on this language, the Arbitrator determined that the parties intended to include some members on the negotiation team who were not agency employees. Id.

      In sum, the Arbitrator concluded that the parties' bargaining history, coupled with conflicting language within the MOU, demonstrated that Section III(a)(1) "can not be used by the Employer to cut the [national union], which is at least a partner in the 1969 certification, out of its statutory right to participate in the bargaining process as the recognized representative of the civilian technicians of [the Agency]." Id. at 20. The Arbitrator found that the Agency's actions violated the parties' agreement and the Statute.

      The Arbitrator ordered the Agency to withdraw its objection to the Union's negotiation team. The Arbitrator [ v57 p596 ] further ordered the Agency to bargain in good faith, upon request, with the Union, and to "make no demands or requests that the Union use or not use any person as a negotiator, chief negotiator, or alternate member of the Union's negotiating team." Id. at 21.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency excepts to the Arbitrator's finding that the "proper representative, for bargaining purposes, of the bargaining unit includes the national [union]." Exceptions at 3. The Agency contends that the Arbitrator violated § 7105(a)(2)(B) of the Statute by making a determination regarding a union's representational status. [n2]  The Agency also contends that the Arbitrator exceeded his authority because the issue of the national union's representational status was not submitted to the Arbitrator.

      Second, the Agency contends that the award is based on three nonfacts: (1) the Arbitrator incorrectly determined that Dep't of the Army, United States Army Finance and Accounting Center, Indianapolis, Ind., 39 FLRA 1586 (1991) (Dep't of the Army), was not applicable to the facts of this case; (2) the Arbitrator incorrectly determined that the date on which the parties negotiated the MOU was unknown; and (3) the Arbitrator "failed to render a proper analysis of the past practice." Exceptions at 6. Regarding the third alleged nonfact, the Agency asserts that the composition of a negotiating team does not constitute a condition of employment. The Agency further claims that, even assuming that the Arbitrator made a correct determination regarding the parties' past practice, the MOU "constituted a new agreement which superseded any previous practice." Id. at 7.

B.     Union's Opposition

      The Union contends that "the award is based on the proper finding that the MOU was not intended by the parties to prohibit the union from being represented at contract negotiations by persons other than bargaining unit members." Opposition at 3. As a result, the Union contends that the issue of whether the local Union office, or the national union, or both, represents the bargaining unit, is "irrelevant" to the issue before the Arbitrator. Id. The Union states that the Arbitrator addressed that issue only upon the Agency's request.

      With regard to the Agency's nonfact arguments, the Union makes the following points: (1) given the "ambiguity of the MOU and the parties' past practice," "there was no clear and unmistakable waiver of the [U]nion's statutory right to designate its representatives"; and (2) the Arbitrator's finding with regard to that practice was in reference to the intent of the parties in adopting the MOU, and "not . . . the doctrine that requires negotiation over change[s] in working conditions established by past practice." Id. at 2-3.

IV.     Analysis and Conclusions

A.     The Nonfact Exceptions Do Not Establish Grounds for Finding the Award Deficient

      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 United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colorado, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. U.S. Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, the fact that the appealing party disputes an arbitral finding does not provide a basis for finding that the award is based on a nonfact. See AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See AFGE, Local 2459, 51 FLRA 1602, 1607-08 (1996).

1.     The First Alleged Nonfact

      The first nonfact argument concerns the Agency's claim that the Arbitrator incorrectly determined that Dep't of the Army did not apply to the facts in this case. In Dep't of the Army, the Authority adopted a decision of an administrative law judge that the union had waived its statutory right to determine the number of representatives at negotiation sessions and that the waiver constituted a complete defense to the respondent's refusal to bargain. Essentially, the Agency claims that, as in Dep't of the Army, the Union here negotiated a limitation on its bargaining team.

      The Agency's claim that the Arbitrator's determination that Dep't of the Army did not "fit" this case (Award at 18) does not challenge a factual finding made by the Arbitrator and must be rejected. See United States Dep't of the Navy, Naval Explosive Ordnance Disposal Technology Div., Indian Head, Md., 57 FLRA [ v57 p597 ] 280, 287 (2001) (Chairman Cabaniss dissenting as to other matters) (exception that arbitrator's Fair Labor Standards Act status determinations were based on position descriptions and OPM classification standards does not challenge arbitrator's finding of fact but, rather, takes issue with arbitrator's interpretation of what evidence governs determinations of FLSA exemptions); United States Dep't of the Navy, Philadelphia Naval Shipyard, 39 FLRA 590, 605 (1991) (agency's nonfact argument disputing arbitrator's interpretation of regulation, rather than arbitrator's factual finding, provides no basis for finding that the award was based on a nonfact).

      Even if we were to construe the Agency's exception as a claim that the award is contrary to law, we would also reject the claim. As the Authority stated in NTEU, Chapter 24, 50 FLRA 330, 332 (1995), if an arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. See also United States Customs Service v. FLRA, 43 F.3d 682, 686 (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, while deferring to the arbitrator's underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).

      In Dep't of the Army, the testimony and documentary evidence supported the judge's determination that, in the specific circumstances of the case, the union had clearly waived its right to determine the number of its bargaining representatives. In contrast, in this case the Arbitrator analyzed the parties' past bargaining history, past practice, and various provisions of the MOU in finding that Section III(a)(1) of the parties' MOU did not preclude national office representatives from participating on negotiation teams. Thus, even if the Arbitrator erred in stating that the holding in Dep't of the Army had no application to this case, the Arbitrator's factual findings, to which we defer, establish that there was no waiver by the Union of its right to designate its representatives.

2.     The Second Alleged Nonfact

      The Agency's second nonfact argument concerns the Arbitrator's statement that "we do not know when" the parties negotiated the MOU. Exceptions at 6. According to the Agency, "[b]oth parties' witnesses testified that the MOU was negotiated over several days and then it was signed." Id. However, the Agency has not demonstrated how, and to what degree, the Arbitrator based his award upon that statement, or how a different result would have been reached had he not made that finding. Accordingly, this exception does not demonstrate that the award was based on a nonfact.

3.     The Third Alleged Nonfact

      The Agency's third nonfact argument pertains to the Arbitrator's finding that the parties had a "past practice" (Award at 19) of including a national representative on negotiation teams. To the extent the Agency argues that the Arbitrator "failed to render a proper analysis," we reject the claim. Exceptions at 6. The existence of a past practice was disputed before the Arbitrator and, as such, does not provide a basis for finding the award deficient as a nonfact.

      The Agency's additional claims that no past practice was involved in this case because a negotiation team is not a "condition of employment," as defined in § 7103(a)(14) of the Statute and that, even assuming that the Arbitrator made a correct determination on the parties' past practice, the MOU "constituted a new agreement which superseded any previous practice," Exceptions at 7, are not properly before us. Under § 2429.5 of the Authority's Regulations, the Authority "will not consider . . . any issue, which was not presented in the proceedings before . . . [an] arbitrator." See, e.g., AFGE, Local 1698, 57 FLRA 1, 2 (2001). There is no evidence that the Agency raised these arguments before the Arbitrator. Consequently, these contentions are barred from our consideration.

B.     There Is No Need to Address the Agency's Other Contentions

      We find it unnecessary to address the Agency's arguments that the Arbitrator violated § 7105(a)(2)(B) of the Statute and exceeded his authority by addressing the issue of the national union's representational status.

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