American Federation of Government Employees, National Council of EPA Locals, Council 238 (Union) and United States, Environmental Protection Agency, Washington, D.C. (Agency)

[ v59 p902 ]

59 FLRA No. 163

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
NATIONAL COUNCIL OF EPA LOCALS,
COUNCIL 238
(Union)

and

UNITED STATES
ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C.
(Agency)

0-AR-3765

_____

DECISION

May 4, 2004

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Rose F. Jacobs filed by the Union under § 7122 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 found that the Agency did not violate the parties' agreement or law by implementing a student loan repayment plan (the repayment plan) without bargaining with the Union, because the Union failed to timely submit written proposals as required by the parties' agreement. Accordingly, she denied the grievance.

      For the following reasons, we deny the exceptions.

II.     Background and Arbitrator's Award

      As relevant here, the Agency notified the Union that it intended to implement the repayment plan and requested that the Union submit written proposals. When the Union did not submit written proposals, the Agency notified the Union that it intended to implement the repayment plan on a specific date. The Union requested bargaining but did not submit written proposals. Subsequently, the Agency implemented the repayment plan, and the Union filed a grievance alleging that the Agency violated the parties' agreement and the Statute by doing so. The grievance was unresolved and was submitted to arbitration. At arbitration, the parties were unable to agree to a statement of the issue, and the Arbitrator framed the issue as follows: "Did the [Agency] violate Article 45, Section 2 or any other provisions of the negotiated Agreement between the parties in implementing the [repayment plan]?[ [n1] ] If so, what shall be the remedy?" Award at 16.

      The Arbitrator found that, in order to resolve the grievance, it was necessary to resolve the Agency's argument that the Union failed to timely submit written proposals to the Agency, as required by Article 45, Section 2 of the parties' agreement. In this connection, the Arbitrator stated that parties to a collective bargaining agreement have the right to rely on provisions concerning time limits for "the processing of grievances[,]" that a failure to observe "time limits for filing and prosecuting grievances . . . generally will result in a dismissal of the grievance[,]" and that "[p]romptness is one of the most important aspects of grievance settlement as failure to settle grievances with dispatch frequently leads to labor unrest." Id. at 18.

      In response to the Union's argument that the Agency committed an unfair labor practice by implementing the repayment plan, the Arbitrator stated that the argument did not "justify ignoring" the time limits of Article 45, Section 2, and was not "supported by" 5 U.S.C. § 7116(a)(1) and (a)(5), 5 U.S.C. § 7118(a)(1) or Article 43, Section 2 of the parties' agreement. [n2]  Id. at 19-20.

      Further, in response to the Union's argument that the parties' agreement, including Article 45, Section 2, had expired, the Arbitrator found that Article 45, Section 2 "has survived the expiration of the Agreement and that time frames for submitting proposals are mandatory." Id. at 20. The Arbitrator also found that even assuming that Article 45, Section 2 constitutes a permissive subject of bargaining, the parties "mutually agreed in Article 46 to extend all of the Contract's terms, [ v59 p903 ] including those that constitute permissive subjects of bargaining." [n3]  Id. at 20-21. The Arbitrator concluded that because Article 45, Section 2 was still in effect, and the Union failed to comply with the terms of that Article, "the Agency did not violate Article 45, Section 2 . . . or any pertinent law or rule in implementing" the repayment plan. Id. at 22. Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union Exceptions

      The Union argues that the award is based on a nonfact because there is no evidence to support the Arbitrator's finding that the parties agreed, in Article 46, to extend all of the contract's terms. In this connection, the Union contends that the parties agreed that permissive subjects could be repudiated after the agreement expired.

      The Union also argues that the award fails to draw its essence from the parties' agreement. The Union contends that the timeliness issue before the Arbitrator involved the time limit for submitting proposals, not for filing the grievance and, thus, the Arbitrator's statements concerning time limits for filing grievances indicate that the Arbitrator addressed an issue that was not before her. The Union also contends that, although the Arbitrator stated that she was required to address whether the Union violated Article 45, Section 2, it was "the Union that filed the grievance, not the Agency." Exceptions at 4. In addition, the Union claims that the Arbitrator erred in stating that the Union's position was not supported by 5 U.S.C. § 7116(a)(1) and (5), 5 U.S.C. § 7118(a)(1) or Article 43, Section 2 of the agreement because the Union did not "attempt . . . to justify ignoring the time limits in Article 45, Section 2 on the basis of" the provisions cited by the Arbitrator. Id. Further, the Union asserts that the Arbitrator does not cite any authority to support her conclusion that the time limits in Article 45, Section 2 are mandatory subjects of bargaining.

      In addition, the Union asserts that the Arbitrator exceeded her authority by failing to resolve whether Article 45, Section 2 is still in effect, and by stating that "[p]romptness is one of the most important aspects of grievance settlement[.]" Id. at 6 (quoting Award at 18). The Union also contends, in this exception, that "[a] Union cannot determine if it can file an exception to the arbitrator's award on the basis of it being contrary [to] the Statute, if the Union does not know the statutory basis for the arbitrator's decision." Exceptions at 5-6, citing United States Dep't of Def., Def. Mapping Agency, Aerospace Ctr., St. Louis, Mo., 43 FLRA 147 (1991) (DOD).

B.     Agency Opposition

      The Agency asserts that the award is not based on a nonfact, noting that the Arbitrator's statement that Article 46 extended all of the contract's terms was only "an assuming-arguendo statement which cannot be construed as the reason[] for denying the Union's grievance." Opposition at 4.

      The Agency also asserts that the award draws its essence from the parties' agreement. In this connection, the Agency contends that: the Arbitrator's statements [ v59 p904 ] regarding timeliness of grievances merely addressed the importance of time limits in general; the Arbitrator's statements regarding the Union's failure to comply with Article 45, Section 2 responded to an Agency argument; and the Arbitrator's statement regarding 5 U.S.C. § 7116(a)(1) and (5), § 7118(a)(1), and Article 43, Section 2 merely responded to the Union's claim that the Agency violated the Statute.

      Finally, the Agency contends that the award is responsive to the issue as framed by the Arbitrator and, therefore, the Arbitrator did not exceed her authority.

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 show 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). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged as a nonfact. See United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 493 (2001).

      The Union's nonfact exception challenges the Arbitrator's interpretation of Article 46 of the parties' agreement, specifically, her determination that Article 46 extended all contract terms beyond the expiration of the agreement. As the Union's exception challenges the Arbitrator's interpretation of the parties' agreement, it does not provide a basis for finding that the award is based on a nonfact. See id. Accordingly, we deny the exception.

B.     The award draws its essence from the parties' agreement.

      As set forth above, the Union asserts that four statements by the Arbitrator in the award demonstrate that the award fails to draw its essence from the parties' agreement. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union claims that the award fails to draw its essence based on the Arbitrator's statements regarding time limits for filing grievances, her statement that she was required to "deal with the Agency's charge that the [Union] is guilty of violating Article 45.2" of the parties' agreement, Award at 19, and her statement regarding 5 U.S.C. § 7116(a)(1) and (5), § 7118(a)(1), and Article 43, Section 2 of the parties' agreement. However, the Union does not explain how these statements are unfounded, implausible, irrational, or in manifest disregard of the parties' agreement. [n4] 

      With regard to the Union's assertion that the Arbitrator erred in finding that Article 45, Section 2 involves a mandatory bargaining subject, the Arbitrator found that the parties agreed in Article 46 to extend both mandatory and permissive subjects. The Union does not claim that this interpretation of Article 46 fails to draw its essence from the agreement. Thus, the Union does not demonstrate that the Arbitrator's conclusion that Article 45, Section 2 is still in effect is unfounded, implausible, irrational, or in manifest disregard of the parties' agreement.

      For the foregoing reasons, we deny the exception.

C.     The Arbitrator did not exceed her authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). An arbitrator does not exceed his or her authority where the award is directly responsive to the formulated issues. See, e.g., AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 99 (2001).

      The issue framed by the Arbitrator was whether the Agency violated its obligations under Article 45, Section 2 by implementing the repayment plan without bargaining. In defense of its actions, the Agency expressly relied on the Union's asserted failure to satisfy [ v59 p905 ] its obligations under Article 45, Section 2. Therefore, the Arbitrator did not exceed her authority by determining whether the Agency's failure to bargain was excused by the Union's failure to meet the time requirements of Article 45, Section 2. In addition, the Arbitrator's generic statements regarding time limits for filing grievances do not indicate that the Arbitrator resolved an issue concerning the timeliness of a grievance.

      Further, the Union's claim that the Arbitrator failed to resolve whether Article 45, Section 2 remained in effect is unfounded. The Arbitrator expressly resolved that issue, holding that "the contractual time frames . . . under the Contract were still in effect[,]" and that "Article 45.2 has survived the expiration of the Agreement[.]" Award at 20. Moreover, the Union does not explain how the Arbitrator's statement regarding promptness being an important aspect of grievance settlement indicates that the Arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded specific limitations on her authority, or awarded relief to persons who are not encompassed within the grievance.

      With regard to the Union's assertion that it "cannot determine if it can file an exception to the [A]rbitrator's award on the basis of it being contrary [to] the Statute," Exceptions at 6, to the extent that the Union is claiming that the award is so ambiguous that the Union is unable to file a contrary to law exception, that claim also is unfounded. Consistent with the foregoing, the Arbitrator's award and reasoning are clear. For the same reason, the Union's reliance on DOD, 43 FLRA 147, is misplaced. In that decision, the Authority remanded an award for clarification because the Authority could not determine the basis for the award. See id. at 154. Here, by contrast, the basis for the award is clear. Thus, there is no basis for concluding that the Union was precluded from filing a contrary to law exception in this case.

      Even assuming that the Union's argument could be construed as raising a contrary to law claim -- that it had a statutory right to terminate, and did terminate, permissive contract terms -- the claim would provide no basis for finding the award deficient. In this connection, in reviewing claims that an arbitrator's award is contrary to law, the Authority defers to the arbitrator's interpretation of the parties' collective bargaining agreement. See, e.g., NTEU, Chapter 168, 55 FLRA 237, 241 (1999). An arbitrator's "determination as to whether an agreement has expired is a matter of contract interpretation." United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 155 (1999); cf. United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Depot, New Cumberland, Pa., 58 FLRA 750, 754-55 (2003) (arbitrator's finding that agreement to bargain over permissive subjects continued in effect did not fail to draw its essence from agreement).

      Here, the Arbitrator found that, in Article 46, the parties agreed to extend both mandatory and permissive subjects for one year beyond the expiration date of the collective bargaining agreement. Consistent with the above-cited precedent, the Arbitrator's finding that both mandatory and permissive terms were extended is a matter of contract interpretation to which the Authority defers, as it has not been shown to be deficient. Accordingly, the Union does not demonstrate that the Arbitrator erred by finding Article 45, Section 2 to still be effective and enforceable. [n5]  Thus, the Union provides no basis for finding that the award is deficient because the Arbitrator enforced Article 45, Section 2.

      Accordingly, we deny the exception.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 59 FLRA No. 163 - Authority's Decision

   Article 45, Section 2 of the parties' agreement provides, in pertinent part, that when the Agency proposes a change in working conditions, it

will notify the authorized agent of the Union in advance in writing of the proposed change or management decision and its impact. . . . When negotiation is desired, the authorized agent will indicate his/her desire to enter into negotiations by advising the authorized Agency representative in writing within ten (10) days from receipt followed by written proposals within fourteen (14) days from receipt. . . .

Exceptions, Tab A at 91.


Footnote # 2 for 59 FLRA No. 163 - Authority's Decision

   Article 43, Section 2 of the parties' agreement provides, in pertinent part, that a "grievance" means any complaint:

C. By any employee, the union or the employer concerning:
     1. The effect or interpretation, or claim of breach of the collective bargaining agreement; or
     2. Any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment.

Exceptions, Tab A at 85.

5 U.S.C. § 7116(a)(1) and (5) provide, in pertinent part, that it is an unfair labor practice for an agency:

     (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
. . .
     (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter . . . .

5 U.S.C. § 7118(a)(1) provides, in pertinent part:

If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon the agency or labor organization a complaint. . . .

Footnote # 3 for 59 FLRA No. 163 - Authority's Decision

   Article 46 of the parties' agreement provides, in pertinent part:

Section 1. This Agreement shall remain in full force and effect for three (3) years from the date of approval by the Agency Head or designee and may be extended in one (1) year increments thereafter.
. . .