United States, Department of Veterans Affairs, Consolidated Mail, Outpatient Pharmacy, Dallas, Texas (Agency) and American Federation of Government Employees, Local 2437 (Union)

[ v60 p109 ]

60 FLRA No. 24

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
CONSOLIDATED MAIL
OUTPATIENT PHARMACY
DALLAS, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2437
(Union)

0-AR-3762

_____

DECISION

July 23, 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 John B. Barnard 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 did not file an opposition to the Agency's exceptions.

      The Arbitrator sustained the grievance and concluded that the Agency is required to abide by a provision of a local collective bargaining agreement.

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

II.     Background and Arbitrator's Award

      The Department of Veterans Affairs (VA) and the American Federation of Government Employees (AFGE) are parties to a master agreement. The master agreement provides that the unit of recognition consists of "all of those previously certified nonprofessional and professional employees, full-time, part-time, and temporary, in units" previously consolidated and certified by the Authority, and any subsequent amendments or certifications. See Master Agreement, Article 1, Section 1. The master agreement also states that the parties at the local level "may negotiate a local supplement" to the master agreement. See id., Article 43, Section 2.

      The Veterans Affairs Medical Center, Dallas, Texas (Dallas VAMC) and AFGE, Local 2437 (the Union) executed a local supplement to the master agreement. See Joint Exhibit #1. Article 1, Section 2 of the local agreement provides that the unit of recognition includes all nonprofessional employees "in the regular work force of the Dallas VAMC including the Canteen Service, the Fort Worth Outpatient Clinic (FWOPC), and the Lancaster Consolidated Mail Out Pharmacy (CMOP)[.]" Id. at 2. Article 20, Section 1 of the local agreement states that "[t]he effective date of this agreement shall be the date of approval by the Director of VA Headquarters, or on the 31st day after execution of this agreement, if the VA Headquarters has neither approved nor disapproved the Agreement." Id. at 33.

      The local agreement was signed by the Union President on June 18, 1999, and by the following management officials on the dates indicated: Chief, Medical Administration Service (June 21, 1999); Director (June 26, 1999); and the Chief Network Officer (CNO) (August 31, 1999). Id. at 34.

      On September 1, 1999, the CNO sent a letter to the Director stating that "[t]he agreement you negotiated with [the Union] has been reviewed and approved with the following exceptions[.]" See Joint Exhibit 3 at 1. The letter instructed the Director to provide the Union President with a copy of the approved agreement. As relevant here, Article 7, Section 4, pertaining to requests for official time, was disapproved on the ground that it violates management's right to assign work under § 7106(a)(2)(B) of the Statute. See id. at 1-2. [*] 

      The Union filed a grievance over the failure of CMOP to abide by provisions of the local agreement, including Article 7, Section 4. During the course of the grievance process, the CMOP Director, by letter dated November 26, 2001, confirmed that it had met with the Union President and that CMOP had "agreed to abide by the articles of both the master agreement and the local supplement pertaining to official time, with the exception of Article 7, Section 4, of the local agreement, which has not been sanctioned." Joint Exhibit 2; Award at 4. The grievance was not resolved and was submitted to arbitration.

      The parties agreed to the following issue before the Arbitrator: [ v60 p110 ]

Whether the Department of Veterans Affairs, Consolidated Mail Outpatient Pharmacy is required to abide by Article 7, Section 4 of the local Labor-Management Agreement?

Award at 2.

      CMOP maintained before the Arbitrator that it is not required to abide by Article 7, Section 4 because it is not a party to the local agreement. In this regard, CMOP asserted that "[n]owhere is CMOP mentioned as a party to the agreement and nowhere does the signature of any CMOP agent appear" on it. Id. at 6. Consequently, CMOP asserted that it "is not bound by the local agreement except to the extent that it has expressly agreed to be bound." Id.

      The Union maintained before the Arbitrator that CMOP is required to abide by Article 7, Section 4. The Union contended that CMOP is a party to the local agreement because CMOP comprises employees who "are included within the [u]nit of recognition and are therefore represented by the Union." Id. The Union also contended that CMOP is bound to the agreement in its entirety because the "Field Director" failed to disapprove the agreement within 30 days of its execution. Id. at 14.

      The Arbitrator concluded that CMOP is required to abide by Article 7, Section 4. The Arbitrator noted that Article 1, Section 2 of the local agreement lists "CMOP as being included in the Unit of Recognition" as well as other departments such as the Canteen Service, the Fort Worth Outpatient Clinic and Registered Nurses. Award at 6. The Arbitrator found that CMOP is party to the agreement, even though there are no signatures to the agreement of any official who represents CMOP, because the VAMC officials who signed the agreement "had the authority to commit" CMOP to it. Id. at 7. The Arbitrator reached this determination, based on his findings that CMOP is an organizational component of Dallas VAMC and that the local agreement covers all nonprofessional employees in CMOP. See id. In this regard, the Arbitrator explained:

It appears that there are also no signatures to the local agreement of any official who represents the above mentioned groups of employees. Thus, if one were to follow the Agency's argument, it would be fair to say that the above mentioned departments are not bound by the agreement. I cannot believe that is the case here. Obviously the local agreement was not negotiated in a vacuum, and the Agency officials who signed the local agreement had the authority to commit for the specific areas of employees as detailed in Article 1, Section 2. Further, I cannot ignore the fact that such article and section specifically covers all non-professional employees in the regular work force of the Lancaster Consolidated Mail Out Pharmacy (CMOP). Further, there was no apparent challenge by any of the management officials representing the various departments of employees listed in Section 2 as to their inclusion into the local agreement. The various departments simply cannot somehow appear in an agreement without anyone's knowledge. As such, CMOP is bound by the local agreement as it is a party to it.

Id.

      Furthermore, the Arbitrator found that "CMOP is bound specifically . . . to the negotiated language as contained in Article 7, Section 4 of the local agreement" based on his finding that the parties stipulated that the Field Director did not disapprove the local agreement within 30 days of its execution. See id. at 13-14. Thus, the Arbitrator sustained the grievance and directed CMOP "to abide by Article 7, Section 4 of the local [l]abor-[m]anagement [a]greement." Id. at 15.

III.     Agency's Exceptions

      CMOP contends that the Arbitrator's conclusion that CMOP is bound by Article 7, Section 4 is contrary to "basic contract and agency law[.]" Exceptions at 1-2. In this regard, CMOP claims that Dallas VAMC is a different entity from CMOP and that Dallas VAMC had no authority to bind CMOP to the local agreement. Id. at 7. CMOP argues that it never negotiated or signed the local agreement. CMOP also argues that it did not authorize Dallas VAMC to act on its behalf.

IV.      Analysis and Conclusions

      When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      Upon de novo review, we find that the award is not contrary to law. The Arbitrator, to whose factual findings we defer, evaluated the record and applied the correct legal standards to those facts and concluded that CMOP is required to abide by Article 7, Section 4 of the local agreement. Nothing in the Statute requires that an official of an organizational element sign an agreement in order to be bound by it. As correctly found by the Arbitrator, the record establishes that CMOP is party to the agreement because the VAMC officials who signed the agreement "had the authority to commit" CMOP to [ v60 p111 ] it. Award at 7. The Arbitrator reached this determination, based on his findings that CMOP is an organizational component of Dallas VAMC and that the local agreement covers all nonprofessional employees in CMOP. See id. at 7.

      The master agreement provides that the unit of recognition includes all professional and nonprofessional employees subject to various certifications. See Master Agreement, Article 1, Section 1. CMOP does not argue here that it is not part of the certified unit as described in the master agreement. CMOP also does not argue that the Dallas VAMC, the party that signed the agreement, did not have the authority to bind Dallas VAMC to the local agreement. Consequently, because CMOP is an organizational component within Dallas VAMC and CMOP includes employees who are covered by the local agreement, we find that CMOP is a party to the agreement by the actions of the officials of Dallas VAMC who signed it.

      We note that there is no statutory right to engage in collective bargaining below the level of recognition. See, e.g., Dep't of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 39 FLRA 1409, 1417-18 (1991) (when exclusive recognition is at the national level, the Statute does not require negotiations at any other level in the absence of an agreement between the parties or other appropriate delegation of authority). In this regard, while the existence of the local agreement is ample evidence that authority to engage in collective bargaining has been delegated to the AFGE, Local 2437 and Dallas VAMC levels, there has been no showing that authority was delegated to the lower organizational level of the CMOP.

      As there is nothing in the record that demonstrates that the award is contrary to law and because we defer to the Arbitrator's factual findings, we conclude that the exception provides no basis for finding the award deficient.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

6.     Local Labor-Management Agreement

Preamble
Pursuant to the policy set forth in Public Law 95-454, this Agreement is made by and between American Federation of Government Employees (AFL-CIO), Local 2437 . . . and Dallas Veteran Affairs Medical Center (VAMC) . . . and collectively hereinafter referred to as the "parties."

7.     Article 1

Recognition and Unit Determination
Section 1. The Employer hereby recognizes that the Union is the exclusive representative of all employees in the Unit (as defined in Section 2 below). . . .
Section 2. Included in the Unit of recognition are all non-professional employees in the regular work force of the Dallas VAMC including the Canteen Service, the Fort Worth Outpatient Clinic (FWOPC), and the Lancaster Consolidated Mail Out Pharmacy (CMOP) as well registered nurses in the regular work force of the VAMC. . . .

8.     Article 20

Duration of Agreement
Section 1. The effective date of this agreement shall be the date . . . approval by the Director of VA Headquarters, or on the 31st day after execution of this agreement, if the VA Headquarters has neither approved nor disapproved the Agreement. . . .

9.     Article 7

Union Representat