National Association of Government Employees, Local R3-32 (Union) and United States, Department of the Air Force, 913TH Air Wing Willow Grove, Air Reserve Station, Willow Grove, Pennsylvania (Agency)

[ v61 p127 ]

61 FLRA No. 25

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R3-32
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
913TH AIR WING WILLOW GROVE
AIR RESERVE STATION
WILLOW GROVE, PENNSYLVANIA
(Agency)

0-AR-3869

_____

DECISION

July 22, 2005

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Raymond Fleishman filed by the Union under § 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 Agency filed a grievance alleging that the Union violated the Statute and the parties' collective bargaining agreement because the Union falsely claimed in a letter to the Authority that the Agency had failed to comply with an Authority Order in an unfair labor practice (ULP) case. The Arbitrator sustained the grievance and additionally found that the Union violated the parties' agreement and the Statute by failing to respond to the grievance. As a remedy, the Arbitrator ordered that: (1) the Union post a notice stating that it had violated the Statute and the agreement; (2) the Union assign a representative to replace its President in conducting all aspects of contract administration with the Agency for a period of six months; and (3) the parties' representatives hold monthly meetings during this six-month period to identify and resolve problem areas in the administration of the parties' agreement.

      For the reasons that follow, we set aside the portions of the award finding that: (1) the Union violated the Statute and the parties' agreement by repudiating Article 15 of the parties' agreement, making false statements in its response to the FLRA's inquiry, and filing a ULP charge in response to the Agency's grievance; and (2) the Union violated the Statute by failing to respond to the Agency's grievance. We deny the Union's exception to the portion of the award finding that the Union violated the parties' agreement by failing to respond to the Agency's grievance. Consistent with these determinations, we modify the remedies ordered by the Arbitrator accordingly.

II.     Background and Arbitrator's Award

      The Authority's Order in United States Dep't of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pa., 57 FLRA 852 (2002) (Willow Grove Air Reserve Station), reconsideration granted, 58 FLRA 277 (2003), required the Agency to post a notice stating that it would not change employees' conditions of employment without giving the Union notice and an opportunity to bargain over certain changes, and that it would recognize the President of the Union as the designated representative for receiving notices of proposed changes. Thereafter, the Boston Regional Office issued a letter to the parties, seeking confirmation that the Agency had complied fully with the Authority's Order.

      Subsequently, based on statements by the Union President, the Union's attorney submitted a letter to the Boston Regional Office, alleging that the Agency was continuing to change unit employees' conditions of employment without first notifying and bargaining with the Union. The Authority's Boston Region later notified the Union that the Agency was in compliance with the Order in Willow Grove Air Reserve Station and that the matter was being closed. On the same day, the Agency filed a grievance against the Union, alleging that the charges in the Union's letter were false and that the Union's demands to bargain violated Articles 15 and 42(5) of the parties' agreement. [n2]  The Union did not respond to the grievance. [ v61 p128 ]

      The Agency submitted the grievance to arbitration, where the parties stipulated to the following issues before the Arbitrator:

(1)     Did the [U]nion violate [the Statute] and/or the current contract by repudiating an existing agreement on adjustment to hours of work?
(2)     Were the statements made by the [U]nion to the [Authority] in violation of [the Statute] and/or the current contract?
(3)     Did the [U]nion violate [the Statute] and/or the current contract by the actions it took, or failed to take, in response to the filing of this grievance? If so, what is the appropriate remedy?

Award at 2.

      The Arbitrator sustained the grievance. He found that the Union's charges in its letter were "false," and credited the testimony of Agency witnesses that the Union had been provided sufficient notice of the changes in employees' work times. Id. at 13. The Arbitrator made the following findings:

The proper recourse for the [U]nion was through a complaint under Articles 15 and 42. There is no evidence that the [U]nion aggressively attempted to make use of Articles [1]5(a) and 42 of the agreement. These provisions are part of `the heart of the agreement.' The argument that [the Union President's] interpretation of Article 15 was reasonable and therefore not a repudiation of the agreement is likewise rejected. The Arbitrator is convinced that [the Union President] does not have a working knowledge of the agreement. But that is not an excuse for poor language implementation even in the face of contrary advice from the [Authority] and [U]nion counsel.

Id.

      As his award, the Arbitrator concluded that: (1) the Union violated the "Statute and the current contract by repudiating (failure to implement) [sic] an existing agreement on adjustments to hours of work[;]" (2) "[s]tatements made by the [U]nion to the [Authority] were in violation of the Statute and the current contract[;]" and (3) the Union violated the "Statute and the current contract by actions taken, and actions not taken, in response to the filing of this grievance." Id. at 14.

      As a remedy, the Arbitrator ordered the Union to post a notice for 30 days stating that the Union violated the Statute and the parties' agreement and has been ordered to take remedial action to prevent any recurrence of this conduct. The Arbitrator also ordered the Union "to assign a representative to replace [the President] for conduct of all aspects of contract administration" with the Agency for a period of six months. Id. Lastly, the Arbitrator ordered the parties' representatives during this six-month period to "hold monthly meetings to identify and resolve problem areas in administration of the agreement." Id.

III.     Union's Exceptions

      The Union asserts that the Arbitrator's award is deficient on three grounds: (1) it is contrary to law, rule or regulation; (2) it fails to draw its essence from the agreement and the Arbitrator exceeded his authority; and (3) it is based on non-facts.

A.     Contrary to Law Exceptions

      The Union maintains that the award is contrary to law in three respects. First, the Union contends that the Arbitrator's finding that the Union's letter violated the Statute and the agreement by repudiating Article 15 is contrary to law, rule or regulation. The Union asserts that there was no evidence presented during the hearings or in the Agency's post-hearing brief which supported the Arbitrator's finding that the Union repudiated Article 15. Exceptions at 7. In this regard, the Union contends that "no repudiation of Article 15 occurred because [the President's] action - requesting bargaining and filing a ULP - did not constitute a clear and patent breach of Article 15 of the CBA." Id. at 10. According to the Union, the President's request to bargain and the letter regarding the Agency's alleged failure to bargain represented the President's lack of a working knowledge of labor relations and the "covered by" doctrine, not a repudiation of Article 15.

      Second, the Union maintains that the part of the award requiring the Union to replace its President as its representative in all aspects of contract administration for a period of six months is contrary to § 7114 and Authority case law. The Union maintains that it "has the sole prerogative to determine who can and cannot represent its interest with respect to the administration of the collective bargaining agreement." Id. at 12. The Union contends that the "Arbitrator has not articulated any act [by the President] that would warrant such a gross infringement on the Union's statutory right to designate its own representative." Id. [ v61 p129 ]

      Third, the Union maintains that the Arbitrator's finding that statements made by the Union in its letter violated the Statute and parties' agreement is contrary to § 7102 of the Statute. The Union contends that under § 7102, employees have the right to act for a labor organization in the capacity of a representative, and the right, in that capacity, to present the views of the labor organization to "heads of agencies and other officials of the executive branch of the Government[.]" Exceptions at 13 (citing Overseas Fed'n of Teachers, 21 FLRA 757, 759 (1986) (Overseas Fed'n)). The Union maintains that in order to find that the Union's letter violated the Statute and the parties' contract, the Arbitrator would have had to find that the Union's letter constituted flagrant misconduct, and the Arbitrator made no such finding in this case.

B.     Essence and Exceeded Authority Exceptions

      The Union maintains that the award does not draw its essence from the parties' agreement, and/or the Arbitrator exceeded his authority, in the following ways.

      First, the Union contends that the Arbitrator exceeded his authority when he resolved issues that were not submitted to arbitration. In this connection, the Union maintains that the Arbitrator's remedy requiring the Union to replace its president as its representative and ordering the parties to meet on a monthly basis were issues that were not submitted to arbitration for resolution.

      Second, the Union reiterates its contentions that the Arbitrator exceeded his authority when he ordered the parties' representatives to hold monthly meetings to identify and resolve problem areas in administration of the collective bargaining agreement.

      Third, the Union maintains that the Arbitrator exceeded his authority under Article 27 of the parties' agreement when he fashioned a remedy that required the Union to assign a representative to replace the president as the Union's representative for six months.

      Fourth, the Union maintains that the Arbitrator's finding that the Union violated the Statute and the agreement by actions taken, and actions not taken, in response to the Agency's grievance does not draw its essence from the agreement. The Union contends that the parties never intended that a failure to respond to a grievance would result in a violation of the Statute or agreement since Article 27 of the agreement expressly allows either side to proceed to arbitration if the other party fails to cooperate in the procedure. [n3]  Exceptions at 25. The Union argues that the Arbitrator does not provide reasons for his finding that the Union violated the Statute and agreement in this regard. The Union maintains that there is "no express or implicit language in the grievance article or anywhere else in the CBA that makes the Union's failure to reply to [a] management grievance a violation of the contract." Id. at 27.

C.     Nonfact Exceptions

      The Union argues that the award is based on nonfacts in two respects. First, the Union maintains that the Arbitrator's finding that statements in the Union's letter violated the Statute and agreement was based on the fact that the Union filed ULP charges against the Agency. In this respect, the Union maintains that these ULP charges were not before the Arbitrator for resolution. Moreover, the Union maintains that the award "appears to be stating that the Union violated the Statute and the [a]greement" by filing ULP charges rather than a grievance concerning the Agency's alleged failure to comply with the Authority Order. Id. at 28-29.

      Second, the Union contends that the Arbitrator's finding that it repudiated the contract was based on nonfacts. The Union asserts that in making this finding, the Arbitrator rejected the Union President's interpretation of Article 15 in light of "contrary advice from the [Authority] and Union counsel[,]" regarding the Agency's bargaining obligations. Id. at 29.

IV.     Agency's Opposition

      The Agency maintains that, except for the Union's claims regarding the reassignment of the Union President and the monthly meetings of the parties' representatives, the Union has failed to demonstrate that the award is deficient.

A.     Contrary to Law Claims

      First, with regard to the Arbitrator's finding that the Union repudiated Article 15 in violation of the Statute and agreement, the Agency maintains that the Union President's alleged "lack of knowledge of labor relations" and "incompetence" do not justify repudiation of the agreement. Opposition at 3. Moreover, the Agency contends that the Arbitrator's finding should stand since [ v61 p130 ] Article 15 is clear and the Union President's interpretation is unreasonable. Further, the Agency maintains that since the Arbitrator found that the evidence established that the Union was provided the required notice, the Union's filing of ULP charges and its refusal to respond to the grievance constituted a repudiation of Article 15.

      Second, with respect to the Arbitrator's award requiring the Union to replace the Union President as its representative, the Agency "does not dispute that the Union has a right to designate its own representative" under § 7114 of the Statute. Id. at 6. The Agency also notes that the Union "has the sole prerogative to determine who can and cannot represent its interest with respect to the administration of the CBA." Id. Nonetheless, the Agency argues that although "the Arbitrator cannot decide who will be the Union representative, it is reasonable for an Arbitrator . . . to declare that [the Union President] has been untruthful and . . . is unable to properly represent the interest of the Union." Id. at 7.

      Third, the Agency maintains that the Arbitrator's finding that the Union's statements to the Authority violated the Statute and agreement is not contrary to § 7102 of the Statute. The Agency contends that the President's statements were "knowingly false when made in an attempt to force the Agency to bargain an issue that clearly was not subject to bargaining." Id. Also, the Agency contends that the Union President's refusal to address the grievance at the lowest possible level was "itself a deliberate calculated act in violation of the [agreement]." Id. at 8.

B.     Essence and Exceeded Authority Claims

      With regard to the Union's claims that the Arbitrator exceeded his authority, the Agency agrees that removal of the Union President and monthly meetings by the parties' representatives were not remedies that were submitted to the Arbitrator for resolution.

      The Agency maintains that the Arbitrator's finding that the Union violated the Statute and agreement by its actions in response to the grievance draws its essence from the agreement. The Agency contends that the Union's actions, filing a letter with the Authority based on false information, and filing a ULP charge instead of responding to the grievance, violated Article 42, which required the Union to resolve complaints at the lowest possible level. The Agency also maintains that the Union's failure to respond to the grievance violates the language of Article 26, section 11 of the agreement, which requires that "`grievance replies will be provided within 14 days from receipt of the grievance[,]'" and that "the [Union's] filing of the ULP in light of this language is certainly a ULP as well." Id. at 12.

C.     Nonfact Claims

      The Agency maintains that the Arbitrator's findings were not based on nonfacts.

V.     Analysis and Conclusions

A.     Article 15 of the Agreement

1.     Contractual Violation

      First, we address the Union's exception that the Arbitrator's finding that the Union violated Article 15 of the parties' agreement is contrary to law. Since this exception challenges an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "`essence' standard of review that the federal courts apply in reviewing awards in the private sector." See, e.g., AFGE, Nat'l Council of Field Labor Locals, Local 2391, 59 FLRA 547, 549 (2003). The standard is deferential because it is the arbitrator's construction of the agreement for which the parties have bargained. See id. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, the appealing party must show that the award: (1) 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; (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 id.

      The Arbitrator found that the Union violated the parties' agreement by "repudiating (fail[ing] to implement)" Article 15 concerning adjustments to employees' work times. Award at 14. We conclude that this finding of a contractual violation fails to draw its essence from the agreement because it is not plausible or rational. In this regard, Article 15 sets forth the Agency's right to change or adjust employees' hours of work and requires it to provide notice to the employees of such changes. Article 15 does not impose any obligation on the Union to do anything or to refrain from doing anything; it simply addresses the Agency's rights and obligations. Since Article 15 does not impose any obligation on the Union, the Union's attempts to bargain on changes to unit employees' work times did not breach Article 15. See e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Ashland, Ky., 58 FLRA 137 (2002) (arbitrator found a contractual violation where agency had not complied with its obligation under the parties' agreement to prepare minutes [ v61 p131 ] of negotiation sessions). Thus, there is no plausible or rational basis for the Arbitrator's finding that the Union's attempts to bargain on changes to employees' work times violated Article 15.

      Accordingly, we set aside the Arbitrator's award finding that the Union violated Article 15 of the agreement because it fails to draw its essence from the agreement.

2.     Statutory Violation

      The Union contends that the Arbitrator's finding that the Union violated the Statute by repudiating Article 15 of the agreement is contrary to law. As the Union's exception concerns whether the award is contrary to law, the Authority's review is de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      Under Authority precedent, repudiation requires the breach of an obligation imposed by the parties' agreement. Dep't of Def., Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 40 FLRA 1211, 1219 (1991) ("[w]here the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute"). Specifically, in analyzing an allegation of repudiation, the Authority examines two elements: (1) the nature and scope of the agreement allegedly breached (i.e., was the breach clear and patent); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement). See Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 52 FLRA 225, 230-31 (1996) (Robins AFB). With respect to the first element, it is necessary to demonstrate "`a clear and patent breach of the terms of the agreement[.]'" Id. at 231 (citation omitted). In this connection, "[i]f the meaning of a particular agreement term is unclear and a party acts 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." Id.

      We agree with the Union's assertion that the record contains no evidence of any repudiation of Article 15 on its part. As explained above, since there was no breach of Article 15, there is no basis for finding a clear and patent breach, which is one of the elements required for finding repudiation and a violation of the Statute. Accordingly, the record on a whole does not establish that the Union repudiated Article 15. [n4] 

      Further, the Agency's reliance on the Authority's "covered by" doctrine is misplaced. The "covered by" doctrine is a defense to an alleged failure to satisfy a statutory bargaining obligation. See Soc. Sec. Admin., Headquarters, Balt., Md., 57 FLRA 459, 460 (2001); United States Dep't of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 47 FLRA 1004, 1018-19 (1993). Under this doctrine, the Agency has no obligation to bargain over changes in work schedules provided for in Article 15. However, nothing in the "covered by" doctrine prohibits a party from requesting negotiations. Moreover, in response to Union requests to bargain over such matters, the Agency could have elected to bargain even if it was not required to do so. Thus, the Union's requests to bargain over changes in hours of work did not violate Article 15. See, e.g., NTEU, Chapter 137, 60 FLRA 483, 488 (2004) (Authority found that agency's termination of its obligations to bargain at the local level did not preclude parties from bargaining in the future at the level of exclusive recognition on such permissive subjects, and agreeing to delegate bargaining responsibilities to lower levels). Accordingly, we set aside the Arbitrator's award finding that the Union repudiated Article 15 of the parties' agreement in violation of the Statute.

B.     Statements Made By the Union in the Letter

1.     Statutory Violation

      The Arbitrator's finding that the statements in the Union's letter violated the Statute is contrary to Authority precedent. The Union's letter, as well as the Union President's statements to the Union's attorney that formed the basis of the letter, were in response to the Region's request for a report on the Agency's compliance with a prior ULP Order, and, as such, were made on behalf of the Union in a representative capacity. In this respect, the Union's response to the Region's inquiry is protected and cannot be found to violate the Statute unless it: (1) constituted flagrant misconduct, or (2) "otherwise exceeded the boundaries of protected [ v61 p132 ] activity." See United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan Air Force Base). The Authority has repeatedly clarified in this regard that "flagrant misconduct" is "illustrative of," but not the only type of, action that could justify removal from the protection of § 7102 of the Statute. AFGE , 59 FLRA 767, 770 (2004) (Chairman Cabaniss concurring and Member Pope dissenting) (citing Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192, 201-02 (D.C. Cir. 2002)); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165, 171 (2003); Davis Monthan Air Force Base, 58 FLRA at 636. In this case, there is no showing that the Union's response constituted flagrant misconduct or that it otherwise exceeded the boundaries of protected activity.

      In Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7 (1995), the Authority outlined several relevant factors to be considered in determining whether an employee has engaged in flagrant misconduct that is not protected under the Statute: (1) the place and subject matter of the discussion; (2) whether the employee's outburst was impulsive or designed; (3) whether the outburst was in anyway provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct. Id. at 12. The Authority also stated that the foregoing factors did not need to be cited or applied in any particular way in determining whether an action constitutes flagrant misconduct. Id.

      In addition, in making such determinations, the Authority has held that "[u]nion officials acting in their official capacity have very broad latitude in speech and action." United States Dep't of Energy, Oak Ridge, Tenn., 57 FLRA 343, 345 (2001) (Oak Ridge) (Chairman Cabaniss dissenting) (false incident report filed by shop chairman protected); United States Dep't of the Air Force, Randolph Air Force Base, San Antonio, Tex., 46 FLRA 978, 993-94 (1992) (Randolph Air Force Base) (Authority adopted Judge's finding that knowingly false statements made by union official not removed from protection of the Statute); see also United States Dep't of Def., Def. Logistics Agency, 50 FLRA 212, 216 (1995) (DLA) (letter from union official to employees accusing supervisors of lying and overbearing and abusive treatment of subordinates protected).

      Applying the above precedent, we find that the Arbitrator's finding, without any elaboration, that the statements were false, does not provide a sufficient basis for concluding that the statements constituted flagrant misconduct or otherwise lost protection of the Statute. With regard to flagrant misconduct, application of the Grissom factors weighs against such a conclusion because the Union's allegations related solely to a labor-management relations matter, were not publicly made, and were confined to appropriate officials of the Boston Regional Office and witnesses. See DLA, 50 FLRA at 216 (complaint not publicly announced); Randolph Air Force Base, 46 FLRA, at 996-97 (1992) (letter not published); IRS, 7 FLRA 596, 603-604 (1982) (name calling as part of labor-management dispute). Moreover, the Union's letter was written in response to the Authority's inquiry regarding the Agency's compliance with a prior ULP Order and contained no intemperate language. At worst, the statements in the Union's response reflected an incorrect interpretation of the Agency's obligations to bargain with the Union over changes in employees' work times. As such, without regard to whether the Union's letter was impulsive or provoked, it did not constitute flagrant misconduct.

      In addition, there is nothing in the record that indicates that the erroneous statements in the Union's letter otherwise exceeded the boundaries of protected activity.

      Accordingly, we set aside the portion of the award finding that the Union's letter to the Authority violated the Statute.

2.     Contractual Violation

      The Arbitrator's related finding, that the Union's letter to the Authority violated the parties' agreement, is contrary to § 7102 of the Statute. [n5]  In Overseas Fed'n, 21 FLRA at 759-60, the Authority found deficient an arbitrator's award that sustained a grievance alleging that a union's action violated the parties' collective bargaining agreement where the union's actions were protected by § 7102 of the Statute. Similarly, here, we find deficient the Arbitrator's award that the Union's letter violated the parties' contract, where the Union President's response to an official inquiry by the Authority's Regional Office involves the legitimate conduct of an employee, acting in a representative capacity, that is protected under § 7102 of the Statute. Moreover, since [ v61 p133 ] no clear and unmistakable waiver of these rights under § 7102 is alleged in this case, there is no basis for the Arbitrator's finding of a contract violation. United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000) (Naval Surface Warfare Ctr.) (Authority precedent requires that the waiver of a statutory right must be clear and unmistakable).

      Accordingly, we set aside the Arbitrator's award finding that the Union's letter to the Authority violated the parties' agreement as contrary to § 7102.

C.     Union's Failure to Respond to the Filing of the Agency's Grievance

1.     Contractual Violation

      The Union contends that the Arbitrator's finding that the Union violated the contract by actions taken and actions not taken in response to the filing of the grievance, fails to draw its essence from the agreement. As stated earlier, in resolving exceptions that challenge an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential essence standard of review.

      The Arbitrator did not explain how the Union violated the parties' agreement or the Statute by its "actions taken, and actions not taken, in response to the filing" of the Agency's grievance. Award at 14. However, both the Union and the Agency construe the award with respect to the Union's failure to take certain actions as finding that the violations of the agreement and the Statute are based on the Union's failure to respond to the Agency's grievance. See Exceptions at 25-28; Opposition at 11-13. We adopt the parties' construction of the award in this regard.

      Article 26, Section 11 provides, in pertinent part, that "[g]rievance replies will be provided within 14 calendar days from receipt of the grievance." The Union asserted to the Arbitrator and asserts in its exceptions that the parties did not intend that a failure to respond to a grievance would itself violate the agreement, based on the fact that the agreement provides that if a party fails to respond timely to a grievance, the grieving party may proceed to arbitration. See Exceptions, Attach. 3 (Union's Post-Hearing Brief) at 20-21; Exceptions at 25-28. The Arbitrator rejected the Union's interpretation of Article 26, finding that the Union violated the agreement by failing to respond to the grievance.

      We conclude that the Arbitrator's finding that the Union violated the agreement by failing to respond to the grievance represents a plausible interpretation of this provision. Accordingly, we find that the Union has failed to demonstrate that the Arbitrator's finding that the Union violated the agreement by not responding to the grievance fails to draw its essence from the agreement. We modify the language of the notice posting ordered by the Arbitrator to reflect that the Union violated only the agreement in this respect.

2.     Statutory Violation

      As noted above, we adopt the parties' understanding of the award as finding that the violation of the Statute is also based on the Union's failure to respond to the Agency's grievance under Article 26, Section 11. However, we find that the Union's breach of Article 26 did not also constitute a repudiation of the agreement in violation of the Statute.

      As already discussed, in order to find repudiation of an agreement, it is necessary to demonstrate a clear and patent breach of the terms of the agreement. In this regard, the Authority had held that "[i]f the meaning of a particular agreement term is unclear and a party acts 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." Robins AFB, 52 FLRA at 231.

      Applying this precedent, we find that the Union's violation of Article 26, Section 11 did not represent a repudiation of the agreement in violation of the Statute because the Union's interpretation of that provision is reasonable. In effect, the Union argues that, when read in conjunction with other provisions, Article 26, Section 11 provides a time period in which there is an opportunity, not an absolute duty, to respond to a grievance, and that a party must respond in a timely manner or the other party may proceed to arbitration. In this respect, the Union emphasizes the interplay with other provisions such as Article 27, Sections 1, which provides in relevant part that "[i]f the parties fail to satisfactorily settle a grievance, either party may invoke binding arbitration."

      We conclude that the Union's interpretation of Article 26, Section 11 is reasonable. As such, the Union's breach of the provision was not clear and patent, which is a necessary element for finding repudiation and a violation of the Statute.

      Accordingly, we set aside the Arbitrator's award finding that the Union repudiated Article 26, Section 11 in violation of the Statute. [ v61 p134 ]

D.     Union's Filing of a ULP Charge in Response to the Agency's Grievance

      We note that both the Union and the Agency construe the award as finding that the Union's filing of a ULP charge was an action taken in response to the Agency's grievance that violated the Statute and the parties' agreement. See Exceptions at 28-29; Opposition at 12. In this respect, we note that the Union made these claims on the basis of 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 NFFE, Local 1984, 56 FLRA 38, 41 (2000).

      The Union asserts, and the Agency does not dispute, that the award "appears to be stating that the Union violated the Statute and the Agreement because rather than filing a ULP [charge] with the FLRA regarding the Agency's noncompliance it should have filed a grievance." Exceptions at 28-29. The Union's interpretation of the award is in accord with the Arbitrator's finding that "[t]he proper recourse for the union was through a complaint" under the parties' agreement. Award at 13.

      We conclude that the Arbitrator's finding that the Union violated the Statute and the parties' agreement by filing a ULP charge instead of a grievance is deficient. Section 7116(d) of the Statute gives parties an option of filing a grievance or a ULP charge over an alleged failure to bargain. Thus, any such finding of a statutory or contractual violation would be deficient without a clear and unmistakable waiver of the Union's statutory right to file a ULP charge under § 7116 of the Statute. Naval Surface Warfare Ctr., 56 FLRA at 850 (Authority precedent requires that the waiver of a statutory right must be clear and unmistakable). There was no finding by the Arbitrator of a clear and unmistakable waiver of the Union's right to file a ULP charge rather than a grievance. [n6]  As set forth above, in this regard, none of the contract provisions at issue in this case is alleged to constitute such a waiver.

      Accordingly, we set aside the portion of the award finding that the Union violated the Statute and the parties' agreement by filing a ULP charge instead of a grievance.

E.     Arbitrator's Remedies

      The Union claims that the Arbitrator exceeded his authority in two respects, by ordering: (1) the Union to replace its President in conducting all aspects of contract administration for a period of six months; and (2) the parties' representatives to hold monthly meetings during this six-month period to identify and resolve problem areas in administration of the agreement. The Agency agrees with the Union's claims regarding these two challenged remedies. We note that, whether or not the remedies would be found deficient, nothing would prevent the parties from agreeing to modify the award in this manner to eliminate these remedies. In this respect, we conclude that, in essence, the parties have agreed to eliminate these remedies, and on this basis, we modify the award accordingly. Thus, we find it unnecessary to determine whether the remedies are otherwise lawful.

F.     Summary

      In sum, we set aside the portion of the Arbitrator's award finding that the Union violated the Statute and the parties' agreement by repudiating Article 15 of the parties' agreement, making false statements in the Union's response to the FLRA's inquiry, and filing a ULP charge in response to the Agency's grievance. We also set aside the portion of the award finding a statutory violation for the Union's failure to respond to the Agency's grievance. However, we deny the Union's exception to the Arbitrator's award finding a contractual violation for the Union's failure to respond to the Agency's grievance under Article 26, Section 11 of the parties' agreement and modify the language of the notice posting ordered by the Arbitrator to reflect that the Union violated only the agreement in this respect. Lastly, we modify the award to eliminate the remedies ordering the Union to replace the President in conducting all aspects of contract administration for a period of six months, and requiring the parties' representatives to hold monthly meetings during this six-month period to identify and resolve problem areas in administration of the agreement.

VI.     Decision

      We set aside and modify the award consistent with the discussion set forth above. [ v61 p135 ]


APPENDIX

Article 15, Section 2, regarding Hours of Work, provides, in pertinent part:
When the Employer knows in advance of the administrative work week that the specific day and/or hours of a day actually required by any employee will differ from those of the current administrative work week, he/she shall reschedule the employee's regularly scheduled administrative work week to correspond with those specific days or hours. Assignment to tours of duty (hours of duty and/or work week) should be made in advance over periods of not less than one week, unless such scheduling would handicap the agency in executing its functions. If the Employer becomes aware of the need to change the administrative work week in question during the work week prior, he/she will change the work week in question and provide in writing the reason for the change and the date on which he/she became aware of the requirement for the change. . . . This notice may be verbal, but a copy of the approved/disapproved changes to tours of duty will be furnished the employee as soon as possible after the Commander approves/disapproves the specific requirements for changes of tour. . . .
Article 26, Section 3 provides that:
Most grievances arise from misunderstanding or disputes which can be settled promptly and satisfactorily on an informal basis at the immediate supervisory level. The Employer and the Union agree that every effort will be made by Management, the Union (unless the employee is representing themselves) and the aggrieved party(ies) to settle grievances at the lowest possible level.
Article 26, Section 11 provides, in pertinent part, that:
When the Employer or the Union decides to file a grievance, they will do so by filing the grievance in writing directly with the other party for resolution. . . . Grievance replies will be provided within 14 calendar days from receipt of the grievance. If the aggrieved party is dissatisfied with the reply and desires to submit the grievance to arbitration, it will so inform the other party within 10 calendar days from the receipt of the reply. . . .

      Article 42, Section 5(c), regarding the Union's Rights and Obligations, provides that "[t]he Union has the obligation . . . [t]o attempt to resolve complaints and grievances at the lowest supervisory level and to encourage all unit employees to do so."

Exceptions, Attach 2.


Opinion of Chairman Cabaniss, dissenting in part:

      I write separately to express concern over the repudiation and protected activity analyses relied on by the majority. My biggest concern is that the majority opinion resolves the repudiation allegation on a legal analysis not argued by the excepting party.

      Pages 7 - 11 of the exceptions address the repudiation finding. The Union first asserts without explanation that the record contains no evidence of any repudiation on the part of the Union, then goes on to explain that what the record does show is the "lack of knowledge of labor relations, in general, and the CBA, in particular[,]" on the part of the Union official accused to have repudiated the agreement. Exceptions at 7. That discussion of the Union official's lack of knowledge extends through page 9 of the exceptions, at which point the exceptions note the general requirements in Authority precedent for a finding of repudiation. Then, in explaining why those legal requirements have not been met because there was no clear and patent breach of the parties' agreement, the Union argues that its representative's interpretation of the relevant agreement provision (Article 15) "was reasonable given her level of knowledge and experience in interpreting and applying the [parties' agreement]." Exceptions at 10. The exceptions' discussion of the reasonableness of the Union representative's actions continues on through the top of page 11. That is the sole extent of the Union's rationale as to why it did not "repudiate" the agreement in violation of the Statute and the agreement.

      I would not, based upon the Union's arguments that it made, find a sufficient basis for overturning the Arbitrator's findings that the Union violated the Statute and agreement by "repudiating (failure to implement)" Article 15 of the parties' agreement. Majority Opinion at 3.