National Treasury Employees Union (Union) and United States Department of the Interior, National Park Service (Agency)

[ v63 p198 ]

63 FLRA No. 78

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
(Agency)

0-AR-4133

_____

DECISION

April 7, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator H. Morton Rosen 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 Arbitrator denied the Union's grievance on the ground that the parties never reached a final agreement on a term collective bargaining agreement. For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      According to the stipulation of facts submitted by the parties to the Arbitrator, the parties entered into a ground rules agreement for negotiating a new term collective bargaining agreement. The ground rules agreement contained a provision (§ 7) entitled "Implementation[.]" [n1]  By early 2005, the parties initialed all provisions of the new term agreement on which they had reached a tentative agreement.  [n2]  On June 6, the Union filed a request with the Federal Service Impasses Panel (Panel) for assistance in resolving the issues on which tentative agreement had not been reached. [n3]  The next day the parties signed a document (June 7 agreement) encompassing all of the provisions on which they had reached tentative agreement. The document contains the following handwritten statement on the first page: "Entire contract with discussed changes, except for the issues . . . still in dispute is tentatively agreed." Award at 4 (quoting stipulation).

      On June 20, the Agency's negotiator notified the Union that the Agency had "concerns regarding the language and intent with respect to specific articles" and that he was "open to discussion" about the concerns. Id. (quoting stipulation). Thereafter, on June 23, the parties' negotiators signed two agreements. The first agreement (the June 23 contract) revised certain provisions of the June 7 agreement. The second agreement (understanding on negotiations) constituted the negotiators' "understanding of the . . . negotiations over a Term Agreement[,]" and provided, in pertinent part, that, except for the issues submitted to the Panel, "the [June 23 contract] . . . constitutes the complete understanding of the parties." [n4]  Id. at 4 (quoting stipulation; footnote added). The Union submitted the June 23 contract to the unit, and the unit ratified it.

      On August 19, the Agency notified the Union that it would not sign the June 23 contract, and the Union filed a grievance alleging that the Agency's actions constituted a failure to negotiate in good faith and a failure to comply with the ground rules agreement, the June 7 agreement, the June 23 contract, and the agency-head review provisions of § 7114(c) of the Statute. The Union also alleged that the Agency's actions constituted unfair labor practices (ULPs) under § 7116(a)(1), (5), [ v63 p199 ] and (8) of the Statute. The Agency denied the grievance, and the matter was submitted to arbitration.

      The parties did not stipulate the issues for resolution. The Arbitrator framed the issue for resolution as follows: "Whether the parties reached a final agreement on the terms of a new collective bargaining agreement." Id. at 3.

      The Arbitrator stated that, "[i]n order to be a binding contract, you need to have a meeting of the minds" and found that, in this case, there was no meeting of the minds. Id. at 13. In so finding, the Arbitrator emphasized that the parties' negotiations were ongoing and that the changes in the terms of the contract were ongoing. According to the Arbitrator, "[t]here cannot be a meeting of the minds while the provisions were in continuous flux." Id. at 14. He also emphasized that, at the time the parties signed the June 23 contract, the Union's chief negotiator was aware that there were Agency concerns that had not been addressed. The Arbitrator stated that some of the Agency's concerns were about the legality and negotiability of some of the agreement provisions and further stated that "[t]he Agency cannot sign something that is illegal." Id. at 13.

      In addition, the Arbitrator relied on the portion of the ground rules agreement stating that "all agreements reached on individual Articles are tentative." Id. at 14 (quoting ground rule § 7A). According to the Arbitrator, the use of the word "tentative" means "it is not final." Id. at 13. The Arbitrator also relied on the portion of the ground rules agreement providing for renegotiation of any provisions disapproved by the agency head. According to the Arbitrator, this provision rendered the agreement "not binding" under the terms of the ground rules agreement. Id. (citing ground rule § 7B).

      Based on the foregoing, the Arbitrator found that the parties never reached a final agreement on the terms of a new collective bargaining agreement and that there is no contract. Id. at 14.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is deficient for the following reasons: (1) the Arbitrator exceeded his authority; (2) the award is based on nonfacts; (3) the award is contrary to law; and (4) the award is contrary to public policy. The Union further contends that the Authority should find that the Agency committed ULPs and violated the ground rules agreement and the understanding on negotiations when it refused to execute the June 23 contract. The Union seeks as remedies a cease and desist order and a posting, an order giving retroactive effect to the June 23 contract, and any additional relief deemed appropriate by the Authority.

      With respect to the first exception, the Union argues that the Arbitrator exceeded his authority when he failed to resolve the issue of whether the Agency committed ULPs. In support of this argument, the Union maintains that the Statute "gives unions the right to choose whether to pursue an alleged unfair labor practice with the Federal Labor Relations Authority or through the negotiated grievance procedure in the parties' contract." Exceptions at 20 (citing § 7116(d)). The Union also maintains that the Arbitrator exceeded his authority when he failed to resolve the issue of whether the Agency violated the parties' ground rules agreement and the understanding on negotiations. Similar to its argument as to its ULP claims, the Union maintains that it exercised a statutory right when it submitted these issues to arbitration.

      Second, the Union contends that the award is deficient as based on two nonfacts. Specifically, the Union alleges that the Arbitrator's finding that the negotiators could not bind the parties by signing the June 23 contract is a nonfact. Id. at 18. The Union also claims that the Arbitrator's finding that the Agency cannot sign a contract that is illegal is a nonfact. Id. at 19.

      Third, the Union contends that the award is contrary to law because the Arbitrator: (1) committed legal error when he applied a subjective rather than objective standard in his analysis of whether a binding contract exists; (2) improperly based his decision, at least in part, on the erroneous conclusion that the Agency's authorized representative cannot sign a contract that contains illegal provisions; and (3) committed legal error when he misapplied the statutory agency-head review process codified at § 7114(c). [n5]  Exceptions at 10, 15, 16. More particularly, the Union notes that an agreement exists under the Statute when authorized representatives come to a meeting of the minds. Id. at 10 (citing United States Dep't of Homeland Sec., Customs & Border Prot., San Diego, Calif., 61 FLRA 136 (2005)). The Union maintains that objective evidence establishes that the chief negotiators reached a meeting of the minds on the June 23 contract. The Union also maintains that the Arbitrator's statement that the Agency "cannot sign something that is illegal" is a clear misstatement of law. Id. at 15-16 (quoting Award at 13). In addition, the [ v63 p200 ] Union asserts that, contrary to the Arbitrator's finding that, under the ground rules agreement, the contract would not be binding if the agency head would not have agreed to it, agency-head review does not permit the agency head to agree or disagree with provisions of the agreement, but, instead, is "limited to issues of non-negotiability and conflicts with law, rule or regulation." Id. at 17.

      Finally, the Union maintains that public policy supports the making and enforcing of contracts and claims that the award "strikes at the very foundation" of this policy. Id. at 22. In the Union's view, the award "allows the Agency to back out of a contract entered into by its authorized representative[.]" Id.

B.      Agency's Opposition

      The Agency contends that the Union fails to establish that the award is deficient and that, consequently, the Authority should deny the Union's exceptions.

      The Agency argues that in the absence of a stipulation, the Arbitrator's formulation of the issue for decision as whether the parties reached a final agreement is entitled to substantial deference and, as such, the Authority should deny the Union's exceeded-authority exception. Opposition at 15-16. In addition, the Agency argues that, to the extent that the Union is alleging a statutory right to have issues addressed and resolved by the Arbitrator, the Authority has expressly rejected such a right. Id. at 17 (citing Ass'n of Civilian Technicians, New York State Council, 60 FLRA 890 (2005) (ACT), reconsideration denied, 61 FLRA 664 (2006) (ACT II), appeal dismissed, 507 F.3d 697 (D.C. Cir. 2007)).

      Further, the Agency contends that the Union fails to establish that the alleged nonfacts were central to the award and that the result would have been different but for the alleged erroneous findings. The Agency maintains that the Arbitrator's central finding was that there was no final agreement because there was no meeting of the minds. In addition, the Agency argues that the authority of the negotiators was disputed before the Arbitrator and, as a result, cannot constitute a nonfact under Authority precedent.

      As to the Union's exception that the award is contrary to law, the Agency contends that determining whether a collective bargaining agreement exists is a question of fact, not law. Id. at 7 (citing DHS; United States Dep't of Commerce, Patent & Trademark Office, 60 FLRA 869 (2005) (PTO)). Finally, the Agency contends that, for the Union to prevail on its exception that the award is contrary to public policy, "the public policy must be explicit, well-defined and dominant." Id. at 18 (quoting AFGE Local 507, 61 FLRA 88, 91 (2005)). The Agency further contends that the Union must identify the policy "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id. at 18-19 (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (Rubber Workers)). The Agency contends that the Union's exception fails to meet these standards.

IV.      Analysis and Conclusions

A.      The Union fails to establish that the Arbitrator exceeded his authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration. E.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Ashland, Ky., 58 FLRA 137, 139 (2002). In assessing whether an arbitrator failed to resolve an issue submitted to arbitration in cases where the parties do not stipulate the issue for resolution, the Authority accords the arbitrator's formulation of the issue to be decided the same substantial deference that the Authority accords an arbitrator's interpretation and application of a collective bargaining agreement. Id. When the formulation of the issue is not unreasonable and the award is directly responsive to the formulated issue, the Authority denies exceptions contending that arbitrators exceeded their authority by failing to resolve an issue submitted. E.g., AFGE Local 3134, 56 FLRA 1055, 1056 (2001).

      The parties in this case did not stipulate the issues for resolution. Accordingly, the Arbitrator formulated the issue. The Union does not contend that the Arbitrator's formulation of the issue was unreasonable or that the award is not directly responsive to the issue as the Arbitrator formulated it. Instead, the Union argues that it had a "statutory right" to a resolution of its claims that the Agency committed ULPs and violated the ground rules agreement and understanding on negotiations. Exceptions at 21, 22. As noted by the Agency, the Authority specifically rejected such an argument in ACT and ACT II. In particular, in ACT, the Authority noted that the parties failed to stipulate the issues for resolution, that the arbitrator framed the merits issue as whether the agency violated the collective bargaining agreement, and that, in her award, the arbitrator resolved precisely this issue. 60 FLRA at 891. In these circumstances, the Authority concluded that the arbitrator was not obligated to address and resolve whether the agency committed ULPs. Id. Subsequently, the Authority denied the Union's motion for reconsideration, which contended that the failure of the arbitrator to resolve the [ v63 p201 ] ULP claims was contrary to the Statute. ACT II, 61 FLRA at 665-66.

      For the reasons set forth in greater detail in ACT II, we reject the Union's arguments. Consistent with precedent, we defer to the Arbitrator's formulation of the issue for resolution and deny this exception. See AFGE Local 3134, 56 FLRA at 1056.

B.     The Union fails to establish that the award is based on a nonfact.

      To establish that an award is deficient because it 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. E.g., Soc. Sec. Admin., Office of Hearings and Appeals, 58 FLRA 405, 407 (2003) (Chairman Cabaniss dissenting as to other matters) (SSA). The Authority also will not find an award deficient on the basis of an arbitrator's determination that constitutes a legal conclusion or interpretation of law. E.g., AFGE Nat'l Border Patrol Council, Local 2455, 62 FLRA 37, 40 (2007) (Border Patrol Council).

      The Union first claims that the Arbitrator found that the negotiators "could not bind" the parties and that this finding constitutes a nonfact. Exceptions at 18. However, the Union does not cite where in the award the Arbitrator made this finding, and a review of the award fails to reveal such a finding. Instead, as the Union acknowledges in its supporting argument, the Arbitrator found only that the parties' "authorized representatives did not bind the parties by signing an agreement." Id. Consequently, the Union has failed to establish that the award is deficient on this ground. See SSA, 58 FLRA at 407 (nonfact exception denied because arbitrator did not make the finding alleged to constitute a nonfact).

      The Union also claims that the Arbitrator's finding that the Agency cannot sign an illegal contract is a nonfact because it is a misapplication of § 7114(c) of the Statute. However, a disputed legal conclusion does not constitute a nonfact and cannot provide a basis for finding that the award is deficient as based on a nonfact. Border Patrol Council, 62 FLRA at 40.

      Accordingly, we deny this exception.

C.      The Union fails to establish that the award is contrary to law.

      The Authority reviews questions of law raised by an exception to an arbitrator's award de novo. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether the award is consistent with the applicable standard of law. E.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, the Authority defers to the arbitrator's underlying findings of fact. Id. The Authority defers to the arbitrator's findings of fact because it was the arbitrator's evaluation of the record for which the parties bargained and not the Authority's evaluation. E.g., AFGE Nat'l Council of HUD Locals 222, 54 FLRA 1267, 1275 (1998) (citing United Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987)).

      As the Agency points out in its opposition, the Authority has expressly held that the question of the existence of a collective bargaining agreement is a question of fact and not a question of law. E.g., PTO, 60 FLRA at 880. In so doing, the Authority specifically relied on the approach of the National Labor Relations Board and the federal courts. Id. (citing Bobbie Brooks, Inc. v. Int'l Ladies' Garment Workers, 835 F.2d 1164 (6th Cir. 1987); Arco Electric Co. v. NLRB, 618 F.2d 698 (10th Cir. 1980), enforcing 237 NLRB 708 (1978)). Consistent with the foregoing, as the Arbitrator's finding that there was no final agreement on a collective bargaining agreement is a factual finding to which we defer, the Union's claims of legal error provide no basis for finding the award contrary to law. See PTO, 60 FLRA at 881.

      Accordingly, we deny this exception.

D.      The Union fails to establish that the award is contrary to public policy.

      Although the Authority will find an award deficient when it is contrary to public policy, this ground is "extremely narrow." Def. Sec. Assistance Dev. Ctr., 60 FLRA 292, 293 (2004) (quoting United States Postal Serv. v. NALC, 810 F.2d 1239, 1241 (D.C. Cir. 1987)). For the award to be found deficient, the asserted public policy must be "explicit, well-defined, and dominant." Id. In addition, the appealing party must identify the policy "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id. (quoting Rubber Workers, 461 U.S. at 766).

      The Union fails to cite an explicit, well-defined, and dominant public policy, which is identified by reference to laws and legal precedents rather than general considerations of supposed public interests. Consequently, the Union's exception provides no basis for finding the award deficient as contrary to public policy. [ v63 p202 ] AFGE Local 507, 61 FLRA at 91. Accordingly, we deny this exception.

V.      Decision

      The Union's exceptions are denied.



Footnote # 1 for 63 FLRA No. 78 - Authority's Decision

   Section 7 provides, in pertinent part, as follows:

A. All agreements reached on individual Articles are tentative. . . .
B. Should the agency head or NTEU National President disapprove a provision of the agreement, or t