Social Security Administration, Office of Disability Adjudication and Review (Respondent) and Association of Administrative Law Judges, International Federation of Professional and Technical Engineers (Charging Party/Union)

 

66 FLRA No. 147                                                                                                                                                              
 
SOCIAL SECURITY ADMINISTRATION
OFFICE OF DISABILITY
ADJUDICATION AND REVIEW
(Respondent)
 
and
 
ASSOCIATION OF ADMINISTRATIVE
LAW JUDGES
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS
(Charging Party/Union)
 
CH‑CA‑10‑0540
 
_____
 
DECISION AND ORDER
 
July 17, 2012
 
_____
 
Before the Authority: Carol Waller Pope, Chairman, and
Thomas M. Beck and Ernest DuBester, Members
I.                    Statement of the Case
                This unfair labor practice (ULP) case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC) and the Charging Party. The Social Security Administration’s (SSA’s) Office of Disability Adjudication and Review (Respondent or ODAR) filed cross‑exceptions and an opposition to the GC’s and Charging Party’s exceptions, and the GC and the Charging Party each filed an opposition to the Respondent’s cross‑exceptions.[1]
                The complaint alleges that the Respondent violated § 7116(a)(1), (5), and (8) of the Federal Service Labor‑Management Relations Statute (the Statute) when it failed to comply with § 7114(b)(5) by failing to execute an agreement reached in settlement of a grievance (settlement agreement). The Judge found that the Respondent did not violate the Statute as alleged and recommended an order dismissing the complaint.
                For the reasons that follow, we deny the GC’s and Charging Party’s exceptions and adopt the Judge’s recommended order dismissing the complaint.
II.                  Background and Judge’s Decision

A.                  Background
                The Charging Party filed a grievance concerning the treatment of eight bargaining unit employees. Judge’s Decision at 2. While the grievance was pending, settlement discussions were conducted between various SSA and Charging Party representatives. Id. The SSA representatives testified that Glen Sklar, the Deputy Commissioner of ODAR, and Frank Cristaudo, the Chief Administrative Law Judge of ODAR, had concurrent settlement authority. Id. at 2‑3. However, Sklar informed the SSA representatives that he preferred to leave the decision to settle the grievance to Cristaudo. Id. at 3. Attempts to settle the grievance were unsuccessful and the Charging Party invoked arbitration. Id. at 2.
                An attorney from the SSA’s Office of General Counsel (OGC attorney) was assigned to represent the Respondent in arbitration. Id. at 3. On the day of the scheduled arbitration hearing, the OGC attorney met to discuss settlement proposals with another SSA attorney and two Charging Party representatives. Id. at 4. The OGC attorney told the Charging Party representatives that he had authority to finalize a settlement because he was speaking with ODAR representatives, including Cristaudo. Id. 
The parties reached an agreement. The OGC attorney stipulated that the agreement was final and binding, and that Cristaudo would sign the settlement agreement the next morning. Id. When a Charging Party representative inquired regarding whether the settlement agreement had been signed, he was informed that the OGC attorney had misunderstood his authority and that the Respondent did not agree with some provisions. Id. The Respondent refused to execute the settlement agreement. Id.
B.                  Judge’s Decision
                The Judge framed the issue before him as “whether the OGC [a]ttorney had authority to enter into an agreement that was binding on the Respondent.” Id. at 9. He noted that it was undisputed that the Respondent refused to sign the settlement agreement and that the question is whether the Respondent was obligated under the Statute to execute the agreement. Id. 
                Cristaudo testified that he discovered that the OGC attorney had settled the matter without authorization from either himself or Sklar. Id. at 4‑5. Another Respondent official also testified that a subsequent investigation revealed that the OGC attorney had “engaged in several misrepresentations,” including “faking telephone calls and doctoring e‑mails to present himself as authorized to settle the case.” Id. at 5.
The Judge found that, although it was undisputed that the OGC attorney was appointed to litigate the matter, he was not granted settlement authority. Id. at 10. According to the Judge, Sklar expressly rejected the OGC attorney’s request for authorization to settle. Id. The Judge also found credible Cristaudo’s testimony that the OGC attorney had never requested authorization from him. Id. Therefore, the Judge concluded that the OGC attorney did not have actual authority to settle the grievance. Id.
In considering whether the OGC attorney had apparent authority, the Judge found that the OGC attorney indicated that he had settlement authority, engaged in settlement discussions, and reached an agreement. Id. However, the Judge found that neither of the Respondent’s representatives who had actual settlement authority represented to the Charging Party or the arbitrator that the OGC attorney had settlement authority. Id. The Judge determined that any presumption that the OGC attorney had settlement authority because he was representing the Respondent at the arbitration hearing was rebutted by the credible testimony of the Respondent’s representatives. Id. at 11.
                Further, the Judge concluded that “apparent authority is not sufficient to bind the [f]ederal government.” Id. at 12. Accordingly, the Judge found that, “even if the OGC [a]ttorney vested himself with apparent authority” to settle the grievance, that authority is not sufficient to bind the Respondent, and “any settlement agreement he authorized was void and unenforceable.” Id. 
                The Judge concluded that the complaint did not allege that the Respondent violated § 7114 by failing to send a duly authorized representative to negotiations and, thus, that the issue of whether the collective bargaining requirements of § 7114 of the Statute apply to settlement negotiations was not before him. Id. at 12‑13.   Therefore, he found it unnecessary to address whether the OGC attorney should have had authority to bind the Respondent. Id. at 13.
                Because the Judge found that the OGC attorney did not have actual authority and that, even if he had apparent authority, it would be insufficient to bind the Respondent, the Judge concluded that the Respondent did not violate § 7116(a)(1), (5), or (8) when it failed to execute the settlement agreement. Id. He recommended that the Authority dismiss the complaint. Id.
III.               Positions of the Parties

A.                  GC’s Exceptions
The GC argues that the Judge erred in failing to find that the parties’ negotiations constituted collective bargaining and that § 7114 applied to the circumstances. GC’s Exceptions at 8. According to the GC, the Authority has held that settlement negotiations constitute collective bargaining. Id. at 9. 
The GC also contends that the Judge erred in finding that apparent authority is not sufficient to bind the federal government. Id. at 10. The GC asserts that this conclusion is contrary to thirty years of Authority precedent. Id. at 11 (citing U.S. Dep’t of Def., Def. Language Inst., Foreign Language Ctr., Monterey, Cal., 64 FLRA 735, 745 (2010) (DOD); AFGE, Local 2207, 52 FLRA 1477, 1480‑81 (1997) (Local 2207); Nat’l Council of SSA Field Operations Locals – Council 220, AFGE, AFL‑CIO, 21 FLRA 319, 332 (1986); U.S. Patent & Trademark Office, 18 FLRA 713, 727 (1985) (PTO); Great Lakes Program Serv. Ctr., Soc. Sec. Admin., Dep’t of Health & Human Servs., Chi., Ill., 9 FLRA 499, 508 (1982) (Great Lakes)). The GC claims that the case cited by the Judge is distinguishable because the settlement in that case was contrary to law. Id. (citing U.S. Small Bus. Admin., Wash., D.C., 38 FLRA 386 (1990)).
                Further, the GC argues that there is a presumption that an agent representing an agency has apparent authority in the absence of clear notice to the contrary and that the Judge erred in finding that the OGC attorney did not have apparent authority. Id. at 13‑15. 
B.                  Charging Party’s Exceptions
The Charging Party first argues that the Judge erred in not finding that it was implied that the OGC attorney had actual authority to bind the Respondent. Charging Party’s Exceptions at 10. The Charging Party contends that it was entitled to assume that the attorney of record for the Respondent had authority to dispose of the action. Id. at 11‑12 (citing United States v. Bissett‑Berman Corp., 481 F.2d 764    (9th Cir. 1973) (Bissett‑Berman)).
Further, the Charging Party asserts that the Judge erred in finding that apparent authority is not sufficient to bind the Respondent. Id. at 17. According to the Charging Party, apparent authority is only insufficient to bind the federal government when the agreement would be contrary to law. Id. at 18. 
The Charging Party also argues that the OGC attorney had apparent authority to bind the Respondent. Id. at 12. According to the Charging Party, the Respondent’s appointment of the OGC attorney created apparent authority for him to settle the grievance. Id. at 13.   
Finally, the Charging Party contends that the Judge erred in finding that the complaint did not allege that the Respondent violated the Statute by failing to send a duly authorized representative to the negotiations. Id. at 23. According to the Charging Party, § 7114 of the Statute requires that the Respondent appoint a duly authorized representative to bargain in good faith. Id. The Charging Party also argues that the requirements of § 7114 apply to settlement agreements and that the Judge erred in finding otherwise. Id. at 23‑24. The Charging Party claims that, if the Respondent’s representative did not have authority to settle the grievance, the Respondent violated § 7114. Id. at 25‑26.
C.                  Respondent’s Cross‑Exceptions and Opposition to GC’s Exceptions
The Respondent argues that the Judge erred in failing to grant the Respondent’s motion for judgment on the pleadings. Respondent’s Cross‑Exceptions at 1. According to the Respondent, the GC failed to plead the existence of a collective bargaining agreement resulting from collective bargaining, which is necessary to establish the elements of a violation of § 7114(b)(5). Id. at 3‑4.
In opposition to the GC’s exceptions, the Respondent contends that there was no allegation in the complaint that the Respondent failed to send a duly authorized representative to the negotiations. Id. at 5. According to the Respondent, the parties were not engaged in collective bargaining because the Respondent had no obligation to bargain over a possible settlement agreement. Id. at 7. 
The Respondent also contends that the GC’s exception contesting the Judge’s finding that the OGC attorney lacked apparent authority is a bare assertion. Id. at 11. The Respondent asserts that, even if the Authority does not find it a bare assertion, the Judge correctly found that the OGC attorney did not have apparent authority because an agent cannot create apparent authority by his own actions or representations. Id. at 11‑12. Further, the Respondent argues that the GC errs in arguing that “only advanced revocation is sufficient to rebut apparent authority.” Id. at 13. According to the Respondent, it put the Charging Party on notice that SSA attorneys could not settle labor management issues because it published a document with the identity of those who are authorized to settle. Id. at 13‑14. 
The Respondent contends that the cases relied on by the GC are inapposite because they do not establish that an attorney hired by a union may enter into a contract with an attorney representing the federal government. Id. at 16. According to the Respondent, the Judge properly found that the OGC attorney could not bind the federal government. Id. at 17. Finally, the Respondent contends that the GC’s remaining arguments are bare assertions. Id. at 17‑20.
D.                  Respondent’s Opposition to Charging Party’s Exceptions
The Respondent argues that the OGC attorney did not have “implied actual authority” to settle the grievance. Respondent’s Opp’n at 2. In this regard, the Respondent contends that the Charging Party did not except to the Judge’s finding that the OGC attorney was not given actual settlement authority. Id. According to the Respondent, Cristaudo was not involved with the settlement discussions and the OGC attorney did not have an “understanding” that Cristaudo would sign the settlement agreement. Id. at 3. The Respondent also argues that the settlement agreement was never binding because it was conditioned on it being signed by all of the parties. Id.
The Respondent asserts that the OGC attorney also did not have apparent authority. Id. at 4. The Respondent claims that, as an employee of the OGC – a separate component of the SSA from the ODAR – the OGC attorney had only litigation authority and was not authorized to conduct settlement negotiations. Id. at 5. According to the Respondent, the Charging Party did not present any evidence contesting the chain of command regarding settlement authority. Id. The Respondent also argues that Cristaudo could not have informed the Charging Party that the OGC attorney did not have settlement authority because Cristaudo was not aware that settlement negotiations were being conducted. Id. at 6.
The Respondent also argues that the Judge did not err in finding that the complaint did not allege that the Respondent failed to send a duly authorized representative. Id. at 9. The Respondent argues that the complaint does not state that the Respondent violated the Statute by failing to send an authorized representative; rather, it only states that the Respondent violated the Statute by failing to execute the settlement agreement. Id. at 10‑11.
E.                   GC’s and Charging Party’s Opposition
The GC asserts that the Respondent is not entitled to judgment on the pleadings because its complaint officially alleged that the Respondent committed a ULP. GC’s Opp’n at at 3.
                The GC claims that there is no need to remand the case to the Judge. Id. at 4. According to the GC, the record reflects that the parties were engaged in collective bargaining. Id. Even though settlement negotiations were voluntary, the GC contends that, once the parties reached agreement, the Respondent could not refuse to execute that agreement. Id. at 5.
The Charging Party adopts the GC’s Opposition to the Respondent’s Cross‑Exceptions. Charging Party’s Opp’n at 1.
IV.                Analysis and Conclusions

A.                  The Judge did not err in finding that the complaint did not allege that the Respondent violated the Statute by failing to send a duly authorized representative to negotiations.
The Judge concluded that it was unnecessary to address whether the Respondent failed to send a duly authorized representative to collective bargaining negotiations because that issue was not raised in the complaint. Judge’s Decision at 13. The Charging Party asserts that the complaint sufficiently raised § 7114, including the requirement of an agency to send a duly authorized representative to negotiations, because the complaint alleged a violation of § 7116(a)(5) of the Statute. Charging Party’s Exceptions at 23. However, the GC acknowledges that the complaint alleges a ULP on the basis that the “Respondent reached an agreement to settle a grievance and then failed to sign the agreement.” GC’s Opp’n at 3. 
The complaint alleges that the Respondent violated § 7116(a) of the Statute by “fail[ing] and refus[ing] to execute the agreement.” GC’s Ex. 1(b), Complaint at 3. It does not provide any other basis for a ULP. Therefore, we find, in agreement with the Judge and as undisputed by the GC, that the complaint did not allege that the Respondent violated the Statute by failing to send a duly authorized representative to settlement negotiations. Thus, we deny the Charging Party’s exception on this issue.[2] See Dep’t of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyo., 31 FLRA 541, 545 (1988). 
B.                  The Judge did not err in finding that the Respondent did not violate § 7116(a) of the Statute by failing to execute the settlement agreement.
The GC and the Charging Party argue in their exceptions that the Respondent violated the Statute by failing to execute the settlement agreement because the OGC attorney had actual and apparent authority to bind the Respondent. GC’s Exceptions at 13‑19; Charging Party’s Exceptions at 10‑22. The authority of the OGC attorney to enter into the agreement is determined under the principles of agency law. DOD, 64 FLRA at 744. As a general matter, the authority of an agent to act on behalf of a principal can be either actual or apparent. Id. (citing Local 2207, 52 FLRA at 1480). Actual authority is authority that the principal has intentionally conferred upon the agent. Id.  Apparent authority occurs where the principal has held out the agent as having such authority or has permitted the agent to represent that he has such authority. Id.
1.                   Actual Authority
The Charging Party argues that the OGC attorney had implied actual authority because he was assigned as the attorney of record for the Respondent. Charging Party’s Exceptions at 10‑12. Courts have found implied actual authority in limited situations, such as when such authority is an integral part of the duties assigned to that employee. Bissett‑Berman, 481 F.2d at 768‑69. Further, an agent expressly authorized to make a contract for the United States has the implied authority to modify that contract. H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989) (citing Branch Banking & Trust Co. v. United States, 98 F. Supp. 757, 766 (Cl. Ct. 1951)). Generally, the existence and scope of agency relationships are factual matters. Metco Products, Inc., Div. of Case Mfg. Co. v. NLRB, 884 F.2d 156, 159 (4th Cir. 1989).
The Authority has found implied actual authority in similar situations. See PTO, 18 FLRA at 726‑27; Great Lakes, 9 FLRA at 508; see also U.S. Dep’t of the Army, Corps of Eng’rs, Nw. Div. & Seattle Dist., 64 FLRA 405, 408 (2010) (finding actual authority where the management official had the authority to settle specific disputes and the agency did not overcome the presumption that his authority to settle the specific issue was limited). In Great Lakes, the Authority found that the agency representative had “express authority” to conduct day‑to‑day labor relations with the union. 9 FLRA at 508. The Authority then found that the agency representative had “implied and inherent authority” to sign the agreement with the union because the agreement was a “natural and general consequence” of the express authority granted to him. Id. Similarly, in PTO, the Authority found that the agency representative had the authority to sign a negotiation agreement with the union because he had been designated as the agency’s bargaining representative. 18 FLRA at 726‑27 (citing Great Lakes, 9 FLRA at 508).
The Charging Party argues that the OGC attorney can be presumed to have had authority to settle the case because he was the attorney of record. Charging Party’s Exceptions at 11‑12. However, in general, an attorney has no authority to settle a client’s case solely by virtue of the attorney’s general power to handle the case because the authority to settle a case is not an integral part of the duties of litigating a case. See United States v. Beebe, 180 U.S. 343, 351 (1901) (finding that a district attorney could not settle a case without the express authorization of the Solicitor of the Treasury); see also Garabedian v. Allstates Eng’g Co., Div. of Allstates Design & Dev., 811 F.2d 802, 803 (3d. Cir. 1987); Mid‑South Towing Co. v. Har‑Win, Inc., 733 F.2d 386, 390 (5th Cir. 1984). Further, the Judge made factual findings and credibility determinations that any presumption of authority had been rebutted by the Respondent. Judge’s Decision at 11 (finding that “any presumption that the OGC attorney had the authority to settle the grievance” was “rebutted by the testimony of other credible witnesses”). Therefore, we find that the OGC attorney did not have implied actual authority to settle the case. Cf. U.S. Army Corps of Eng’rs, Waterways Experiment Station, ERDC, Vicksburg, Miss., 61 FLRA 258, 262 (2005) (rejecting the authority of the management official where he would have to get approval from the legal department before making agreement).
2.                   Apparent Authority
The GC and the Charging Party both argue that the Judge erred in finding that apparent authority is not sufficient to bind the federal government. GC’s Exceptions at 10‑12; Charging Party’s Exceptions at 17‑18. The GC and the Charging Party also assert that the OGC attorney had apparent authority to settle the grievance. GC’s Exceptions at 13‑19; Charging Party’s Exceptions at 12‑22. 
Even assuming the doctrine of apparent authority applies, the Judge’s factual findings support a conclusion that the OGC attorney did not have apparent authority. In determining whether a judge’s factual findings are supported, the Authority looks to the preponderance of the record evidence.[3] U.S. Dep’t of Transp., FAA, 64 FLRA 365, 368 (2009) (Member Beck concurring). As stated above, apparent authority occurs where the principal has held out the agent as having authority or has permitted the agent to represent that he has such authority. DOD, 64 FLRA at 744. 
In this case, the Judge’s findings support a conclusion that the Respondent neither held the OGC attorney out as having authority, nor permitted him to represent that he had authority to settle the grievance. In this regard, the Judge found that the Respondent’s officials who had settlement authority did nothing “to suggest[] to the Union or the arbitrator that the OGC [a]ttorney was in fact authorized to settle the matter without their review and approval.” Judge’s Decision at 10. The Judge also found that the Respondent had a document posted on its intranet site that was available to all employees and identified a list of employees with settlement authority, which did not include the OGC attorney. Id. at 5. Further, the Judge concluded that only Cristaudo and Sklar had settlement authority, and that the OGC attorney never requested delegation of settlement authority from Cristaudo and was explicitly refused settlement authority by Sklar. Id. at 3, 4.
Accordingly, because the OGC attorney did not have actual or apparent authority to bind the Respondent, we find that the Judge did not err in finding that the Respondent did not violate the Statute by failing to execute the settlement agreement.  See AFGE, Local 1917, 62 FLRA 354, 354‑55 (2008) (finding that, because the section chief did not have actual authority to extend the grievant’s appointment, the grievant’s employment ended).
V.                  Order
We deny the GC’s and the Charging Party’s exceptions and dismiss the complaint. [4]
 


[1] The Charging Party also filed a request for oral argument. Charging Party’s Request for Oral Argument at 1. However, the Charging Party did not request leave to file a supplemental submission under 5 C.F.R. § 2429.26 and, therefore, we do not consider its request. See AFGE, Local 3627, 66 FLRA 207, 207 n.1 (2011).
[2] Given our conclusion that the Judge did not err in refusing to address the issue of whether the parties were engaged in collective bargaining, we find it unnecessary to resolve the Charging Party’s and the GC’s exceptions contending that the parties were engaged in collective bargaining and the Respondent’s cross‑exceptions contending that the parties were not engaged in collective bargaining. See AFGE, Local 3354, AFL‑CIO, 58 FLRA 184, 190 (2002) (Local 3354).
[3] Member Beck notes that, for the reasons stated in his separate opinions in Social Security Administration, 64 FLRA 199, 207 (2009) (Dissenting Opinion of Member Beck), United States Department of the Air Force, Air Force Materiel Command, Space and Missile Systems Center, Detachment 12, Kirtland Air Force Base, New Mexico, 64 FLRA 166, 179-80 (2009) (Concurring Opinion of Member Beck), and United States Department of the Air Force, 12th Flying Training Wing, Randolph Air Force Base, San Antonio, Texas, 63 FLRA 256, 262-63 (2009) (Concurring Opinion of Member Beck), he reviews the Judge’s factual findings using a “substantial evidence in the record” standard rather than a “preponderance” standard.
[4] Based on this conclusion, it is unnecessary to resolve the GC’s exception challenging the Judge’s finding that the OCG attorney was “mendacious” and the Respondent’s cross‑exception regarding the motion for judgment on the pleadings. See Local 3354, 58 FLRA at 190.

 

 

 

Office of Administrative Law Judges

 

SOCIAL SECURITY ADMINISTRATION

OFFICE OF DISABILITY

ADJUDICATION AND REVIEW

(Respondent)

 

and

 

ASSOCIATION OF ADMINISTRATIVE

LAW JUDGES, INTERNATIONAL FEDERATION OF

PROFESSIONAL AND TECHNICIAL ENGINEERS

(Charging Party)

 

CH-CA-10-0540

 

Greg A. Weddle, Esq.

For the General Counsel

 

Michelle M. Murray, Esq.

For the Respondent

 

Robert H. Stropp, Jr., Esq.

For the Charging Party

 

Before:    CHARLES R. CENTER     

                  Chief Administrative Law Judge

 

 

DECISION

 

STATEMENT OF THE CASE

 

                This case arose under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. §§7101-7135 and the revised Rules and Regulations of the Federal Labor Relations Authority (Authority), Part 2423.

                A Complaint and Notice of Hearing was issued on April 29, 2011, based on an unfair labor practice charge filed on August 4, 2010, against the Social Security Administration, Office of Disability Adjudication and Review (Respondent/Agency/ODAR) by the Association of Administrative Law Judges (Charging Party/Union).  The complaint alleges that the Respondent failed to execute an agreement reached in settlement of a grievance thereby, failing to comply with §7114(b)(5) of the Statute and violating §7116(a)(1), (5) and (8) of the Statute.

 

                A hearing was held in Chicago, Illinois, on July 13, 2011, where all parties were represented and afforded an opportunity to be heard, produce relevant evidence, and examine and cross-examine witnesses.  The General Counsel, the Charging Party and Respondent filed timely post hearing briefs.

                Based on the entire record, including my observation of the witnesses and their demeanor, I find that the Respondent did not fail to execute an agreement reached in settlement of a grievance and make the following findings of fact, conclusions of law, and recommendations.

 

Findings of Fact

 

                The Social Security Administration is an agency under §7103(a)(3) of the Statute.  (G.C. Exs. 1b & 1d).  The Association of Administrative Law Judges, International Federation of Professional and Technical Engineers is a labor organization under §7103(a)(4) of the Statute and is the exclusive representative of bargaining unit employees of the Respondent.            (G.C. Ex. 1b & G.C. Ex. 7).  The Respondent and Union were parties to a National Collective Bargaining Agreement (CBA) that covered the bargaining unit for which the Union held exclusive recognition.[1] (GC Ex. 7).  That CBA contained a grievance procedure as well as procedures for the arbitration of grievances that the process failed to resolve.  (G.C. Ex. 7).

 

                The Union filed a grievance which subsequently became known as the “Chicago Eight” grievance, regarding the treatment of eight bargaining unit employees by the Hearing Office Chief Administrative Law Judge of the Chicago Office.  (Tr. 48-49).  While the grievance was pending in the grievance process, discussions about possible settlement were conducted between various Union representatives and Karen Ames who at that time was the Director of the Division of Quality Service in ODAR.  (Tr. 18, 146).   In describing her role in the settlement efforts, both Ames and Frank Cristaudo who was the Chief Administrative Law Judge for ODAR testified that Ames was not settlement delegated settlement authority, but merely served in the capacity of liaison for Cristaudo who had authority.      (Tr. 154-55, 189-92, 197-200.)  At one point, when the Union felt it wasn’t getting anywhere with Ames, it sent an e-mail directly to Cristaudo expressing its willingness to entertain a settlement proposal from him.  (Tr. 18-19, 34-35; Resp. Ex. 8).  Cristaudo referred the Union back to Ames.  (Tr. 36).  Efforts to settle or resolve the grievance were unsuccessful and the Union invoked arbitration in the matter on or about November 25, 2009.  (Tr. 18-20, 49-50, 60-66; G.C. Ex. 2).

 

                An attorney (OGC Attorney) from the Social Security Administration (SSA) Office of General Counsel (OGC) was assigned to represent the Respondent in the arbitration of the “Chicago Eight” grievance.[2]  (Tr. 266; G.C. Ex. 2).  OGC is an organizational component within SSA separate and distinct from ODAR, that functions as a “full-service law office” for all of SSA and represents various SSA components in arbitrations and other third party proceedings.  (Tr. 185-86, 260-62).  

 

        The arbitration hearing was scheduled to start on June 28, 2010.   (Tr. 99).  In the course of discussing stipulations and evidentiary matters the week before the arbitration hearing, the Union’s representative Richard Welch, an attorney with the law firm of Mooney, Green, Saindon, Murphy & Welch, P.C., and the OGC Attorney began discussing settlement. (Tr. 101-02).  This led to Welch sending the OGC Attorney a settlement proposal.  (Id.). Donna Calvert who was the Regional Chief Counsel in the Chicago office of OGC and the supervisor of the OGC Attorney, testified that a week or so prior to the arbitration hearing, the OGC attorney advised her there was a potential for settlement of the case.  (Tr. 267).  Calvert referred the OGC Attorney to Alan Franks, an OGC official located at OGC headquarters.  (Tr. 267-68).  Calvert testified that the OGC Attorney subsequently informed her that Franks told him discuss the case with Kristen Fredericks, who was someone at ODAR headquarters whom Calvert did not know.  (Tr. 268). Calvert contacted Fredericks by telephone and “introduced her to the case.” (Id.).  Subsequent to this telephone conversation, Calvert sent Fredericks an e-mail dated June 24, 2010, with a copy of “our draft settlement recommendation,” which was attached to a memorandum addressed to Judge Cristaudo, and requested that the OGC Attorney be authorized to negotiate a settlement consistent with the terms therein.  (Resp. Ex. 14).

 

                Fredericks, was a senior advisor to Glen Sklar, the Deputy Commissioner of ODAR, and was responsible for reviewing requests for settlement authority from OGC attorneys handling cases for ODAR and conveying information to and from Sklar, who held settlement authority.  (Tr. 221-22).  Fredericks testified that at the time of her communications with Calvert she had been in her position only a few months and because she had not encountered a request for settlement authority in anything other than an Equal Employment Opportunity case, she needed to educate herself about the applicable delegations of authority. (Tr. 229-30).  Based upon the record, it is clear that Fredericks: (1) sent an e-mail dated

June 25, 2010, to Calvert and the OGC Attorney informing them that she could not give them a “green light” on the settlement proposal they had submitted, and needed more time to discuss the matter with local management; and (2) learned that although Sklar had concurrent authority with Cristaudo insofar as settlement of the “Chicago Eight” matter, Sklar was unwilling to exercise his authority and thought the decision to settle the case should be left up to Cristaudo.   (Resp. Ex. 14; Tr. 223, 226, 240-41, 258).

 

                The parties appeared as scheduled for the arbitration hearing on June 28, 2010.  (Tr. 102).  Representing ODAR, was the OGC Attorney along with a second attorney, Marc Boxerman.  Present for the Union were Welch and two other representatives, Judges William Wenzel and John Madden, Jr., along with the eight grievants.  (Id.).  Prior to the start of the hearing, the OGC Attorney informed Welch that he was still going over the settlement proposal Welch sent him and proposed they delay going on the record so they could talk settlement.  Id.  In response to a request from Welch and the OGC Attorney, the arbitrator agreed to delay the start of the hearing so that they could pursue further settlement discussions.  (Tr. 52).  The OGC Attorney, Boxerman, Welch, and Wenzel spent the day working on a settlement.[3] 

 

                According to Welch and Wenzel, the OGC Attorney did most of the talking and made several comments to the effect that he was discussing the settlement efforts with others such as his boss Calvert, Cristaudo, Cristaudo’s shop/OCALJ [Office of Chief Administrative Law Judge], and SSA headquarters.  (Tr. 54, 71-72, 103, 134).  Later in the day, when the parties were close to agreement, Welch specifically asked the OGC Attorney whether he had authority to finalize the settlement under the terms they had reached and he responded he did. (Tr. 104, 110, 140).  A settlement was reached; a written document was prepared for the signatures of representatives of the Union and ODAR, along with those of the eight grievants; and the parties assembled before the arbitrator.  (G.C. Ex. 4; Tr. 55-56, 107).  The arbitrator went on the record and Wenzel signed the agreement on behalf of the Union with seven of the eight grievants also signing at that time.[4]         (G.C. Ex. 3).  It was stated on the record by the OGC Attorney that Cristaudo would be the signatory for ODAR and that his signature would be obtained the next morning.  (Id.).  The OGC Attorney stipulated on the record that the agreement was “final and binding on all parties and the signatures are just a housekeeping issue that will get done tomorrow.” (Id. at 5).

 

                At some point after June 28, 2010, Cristaudo heard reports that the “Chicago Eight” case had settled and he began making inquiries into how it had happened without his knowledge or authorization.  (Tr. 193-95, 214-17).  Upon his inquiry, Calvert began an investigation into the matter.  (Tr. 277-79).  That investigation revealed that neither Sklar nor Cristaudo had authorized the OGC Attorney to enter into the settlement that he purportedly accepted on behalf of the Respondent.  With respect to Sklar, although the OGC Attorney had contacted Fredericks by e-mail and telephone on June 28, in an attempt to get Sklar’s signature or approval of a settlement, he was told that Sklar was not going to approve it and was leaving the matter to Cristaudo.  (Tr. 230, 234-35, 243; Resp. Exs. 18 & 19).  It also came to light that although the OGC Attorney informed Calvert that Cristaudo would be at the arbitration hearing, he never informed Cristaudo that the hearing was scheduled for June 28, nor did he tell Cristaudo that his presence would be required.             (Tr. 192-93, 202, 272, 275).  Cristaudo testified that he first learned of the arbitration hearing when he received a

telephone call the day the arbitration hearing started while in California on a business trip.  The call was from Regional Chief Judge Paul Lillios in Chicago, who asked him why he was not in Chicago for the hearing.                ( Tr. 192-93, 202-03, 210-14).  Cristaudo further testified he never talked to the OGC Attorney or authorized him to settle the case and was unaware of the OGC Attorney’s settlement efforts prior to the agreement being reached.  (Tr. 193-94, 202, 212-13).  Additionally, although the OGC Attorney had represented to Calvert that Judges Lillios, Bede, and McGuire were in agreement with the settlement, her investigation revealed that was incorrect.[5]  (Tr. 272, 275; Resp. Ex. 16).

 

                In her testimony, Calvert stated she learned the OGC Attorney had engaged in several misrepresentations to include faking telephone calls and doctoring e-mails to present himself as authorized to settle the case.             (Tr. 275-78).  According to Calvert, she began investigating the OGC Attorney’s other cases and discovered two additional cases that were “as significantly problematic” as the “Chicago Eight” arbitration.  (Tr. 277).

 

                At some point after June 28, 2010, Welch began making inquiries about why the settlement agreement had not been signed by the Respondent.  (Tr. 108-09).  Welch’s efforts to reach the OGC Attorney were unsuccessful but he was contacted by a Mr. Skidmore, another attorney in OGC, who informed Welch the OGC Attorney had misunderstood his authority and that someone in the agency was not happy with some provisions in the agreement.  (Tr. 109).  According to Welch, Skidmore told him the Respondent would nevertheless sign the agreement if one particular provision was removed, but the Charging Party refused to accept removal of the single provision. (Tr. 109, 128).  Cristaudo never signed the agreement nor did anyone else do so on behalf of the Respondent.  (Tr. 108, 195).

  

                Delegations of authority from the Commissioner of Social Security to ODAR officials pertaining to, among other matters, personnel and labor-management relations are set forth in a document posted on the Respondent’s intranet site and available to all employees.[6]  (Resp. Ex. 7; Tr. 148).  In accordance with those delegations of authority, Chief Judge Cristaudo was the lowest point in the ODAR chain-of-command with authority to approve settlement agreements such as that involved in this case.  (Tr. 147-50, 191-92; Resp. Ex. 7).  Although authority over such matters could be exercised by Cristaudo’s superiors, it could not be exercised by anyone below him.  (Tr. 150, 155, 187).  Thus, Ames and those acting on behalf of Cristaudo with respect to the “Chicago Eight” case did not hold settlement authority and were serving only as his spokesperson confined to the parameters established by Judge Cristaudo.             (Tr. 155-57, 189-92, 197-98).

 

Discussion

 

Position of the Parties

 

A.            General Counsel

 

                The General Counsel alleges that Respondent violated §7106(a)(1), (5) and (8) of the Statute by failing to execute a settlement agreement reached between the OGC Attorney and the Charging Party in the “Chicago Eight” case. 

 

                 The General Counsel contends that when parties negotiate and reach an agreement to settle a grievance that was filed under a CBA they are engaged in collective bargaining under the Statute.[7]  In support of this contention, the General Counsel maintains collective bargaining under the Statute is not limited to the negotiation of term collective bargaining agreements, but also encompasses such matters as grievances and the     on-going administration of the parties’ collective bargaining agreement.  In the General Counsel’s view, it follows that grievance settlements are collective bargaining agreements, which are binding on the parties and enforceable.  Further, the General Counsel notes that the Authority has found failure to comply with an executed settlement agreement that resolved a grievance constitutes a failure to negotiate in good faith in violation of the Statute.

 

                The General Counsel contends the representative of Respondent was authorized and did enter into an agreement to settle the “Chicago Eight” grievance and under §7114(b)(5) of the Statute, so the Respondent was obligated to execute a settlement agreement that reflected the terms of the agreement.  The General Counsel argues that under the law of agency, the Respondent was bound by the actions of the OGC Attorney in reaching the settlement agreement.  The General Counsel asserts the OGC Attorney served as Respondent’s duly appointed representative in the arbitration of the “Chicago Eight” grievance and under the law of agency had actual and apparent authority to settle the grievance.  Additionally, the General Counsel maintains the authority of the OCG Attorney was further demonstrated by the fact that several representatives of the Respondent were aware he was engaging in settlement negotiations and none of them notified the Charging Party of any limitations upon the OGC Attorney’s authority.

 

                The General Counsel disputes Respondent’s claim that the OGC Attorney lacked actual authority to settle the “Chicago Eight” case.  The General Counsel notes that Sklar as well as Cristaudo was vested with the necessary settlement authority and in responding to the OGC Attorney’s efforts to obtain authority from Sklar Fredericks’ rejected the request citing the need for discussion with local management.  The General Counsel contends that by virtue of the OGC Attorney’s assertion that he had obtained the approval of three local management officials, Judges Lillios, Bede, and McGuire, he satisfied the only contingency Fredericks required for him to have authority to settle the matter, and in view of that fact, the General Counsel argues that it is reasonable to conclude the OGC Attorney had actual authority.

 

                Turning to the question of apparent authority, the General Counsel contends such authority inherently resides in a representative, such as the OGC Attorney in this case, who is appointed to negotiate on a principal’s behalf.  Additionally, the General Counsel asserts apparent authority was sufficient to bind the Respondent in this case and contends that the circumstances involved here are distinguishable from those in decisions such as Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)(Merrill) that hold actual authority is necessary in order to bind the government.  One of the features the General Counsel cites as distinguishing this case from Merrill is the requirement of §7114(b)(2) of the Statute which mandates that parties send representatives to the bargaining table who are fully authorized to reach collective bargaining agreements, which, in the General Counsel’s view, effectively vests agency representatives with authority to negotiate and reach such agreements.  The General Counsel also argues that the OGC Attorney’s apparent authority derived from the fact he was acting on behalf of the Respondent in negotiating a settlement of the grievance combined with no notice from the Respondent that his authority was limited.  With respect to this latter point, the General Counsel avers that the delegation of authority document did not notify the Union of any limitations on the OGC Attorney’s authority because it was an internal document that was neither provided to, nor otherwise known, by the Union.

 

                The General Counsel contends the evidence establishes an agreement to resolve the “Chicago Eight” grievance was reached between the designated representative of the Respondent and the Charging Party.  The General Counsel argues that although the OGC Attorney took his own life shortly afterwards, the record does not support a conclusion that he lacked capacity to enter into an agreement.  Additionally, the General Counsel maintains the Respondent failed to notify the Union of any concerns about the OGC Attorney’s ability to serve as its representative in the case. 

 

                As a remedy, the General Counsel seeks an order requiring the Respondent to: (1) execute and fully implement the settlement agreement; and (2) post and disseminate by e-mail a notice to employees signed by the Deputy Commissioner of ODAR.  With respect to its request for e-mail distribution of the notice to employees, the General Counsel asserts that e-mail is the customary manner by which the Respondent communicates with employees in the bargaining unit.  

 

 

 

B.            Respondent

 

                The Respondent denies a violation of the Statute occurred, contending the settlement discussions involved in this case did not constitute collective bargaining.   The Respondent argues that collective bargaining under the Statute applies only to those negotiations arising from the existence of a mutual obligation to bargain.  The Respondent maintains that neither the Statute nor the collective bargaining agreement between the Respondent and Union imposes a “mutual obligation” to engage in settlement discussions to resolve a grievance and terminate litigation of the matter.

 

The Respondent argues that even assuming the parties were engaged in collective bargaining within the meaning of the Statute, there was no agreement reached by an authorized representative of the Respondent.  The Respondent contends that authority to approve settlement agreements was delegated to Cristaudo and Sklar and neither of them approved the agreement or authorized settlement of the “Chicago Eight” grievance.  The Respondent asserts that whether the Union had actual knowledge of the delegations of authority is irrelevant and does not diminish the force and effect of the limits imposed by those delegations.  The Respondent suggests Welch’s description of the OGC Attorney’s conduct, specifically that he represented to Welch that he was often conferring with his client or principal, and that Cristaudo had to sign the settlement agreement is inconsistent with the Charging Party’s professed belief that the OGC Attorney possessed the requisite authority to settle the grievance without further approval by the client or principal.

 

The Respondent contends any stipulation to an agreement by the OGC Attorney was insufficient because he lacked the necessary authority to enter into a binding agreement.  Citing Merrill, the Respondent maintains that the OGC Attorney’s acts could not bind the Federal government because he lacked actual authority.  Moreover, relying on U.S. v. Beebe, 180 U.S. 343, 351 (1901), the Respondent asserts that attorneys, such as the OGC Attorney, representing clients may not agree to accept a compromise on behalf of their client unless authorized by the client.  Addressing the question of apparent authority, Respondent avers that as a general rule such authority is created only by representations of the principal to the third party and that an agent cannot alone create apparent authority by his own actions or representations.  Applying that principle to this case, the Respondent argues that at no time did Cristaudo hold out the OGC Attorney as someone who could settle the grievance without getting his approval.  Instead, according to the Respondent, the only manifestation of the OGC Attorney’s authority to settle the case came from his own claims about possessing settlement authority.  The Respondent contends the written agreement itself evidences the parties’ intent that the document had to be executed by someone with actual settlement authority before it would become binding and this presents yet another reason for finding the OGC Attorney’s stipulation insufficient to bind the Agency.

 

Finally, the Respondent asserts it did not ratify the OGC Attorney’s actions, but instead informed the Union that the delegated settlement official would not execute the agreement as long as it contained certain language he found objectionable.

 

C.            Charging Party

 

                The Charging Party alleges the Respondent’s refusal to sign the settlement agreement constituted bad faith bargaining and was an unfair labor practice.

 

                The Charging Party argues that under the principles of agency law, the OGC Attorney had both actual and apparent authority to bind the Respondent by the settlement agreement he negotiated.  According to the Charging Party, the OGC Attorney’s actual authority was evidenced by his statements to multiple individuals that he had authority to enter into the settlement agreement and also by Boxerman’s failure to contradict the OGC Attorney’s assertions.  The Charging Party argues that Cristaudo’s claim that he knew nothing about the OGC Attorney’s settlement negotiations is not credible.  As to apparent authority, the Charging Party contends that in view of what it characterizes as multiple manifestations that the OGC Attorney possessed settlement authority, it was reasonable for the Union to believe the OGC Attorney had authority to enter into the settlement agreement.  Additionally, the Charging Party maintains that good faith bargaining requires appointment of a representative to negotiate a collective bargaining agreement who has full authority to enter into an agreement.  The Charging Party alleges the Respondent appointed the OGC Attorney to be its representative in negotiating a settlement agreement in the “Chicago Eight” case and by doing so created apparent authority in him.  The Charging Party points to Boxerman’s failure to interpose any contradiction of the OGC Attorney’s statements about his authority as confirmation that the OGC Attorney had apparent, as well as actual, authority.  The Charging Party cites what it characterizes as the Respondent’s failure to give the Union timely notice of the OGC Attorney’s lack of authority after learning of the settlement agreement and failure to immediately disavow the settlement agreement as belying the Respondent’s subsequent claim that the OGC Attorney lacked authority.

 

                The Charging Party contends that regardless of what type of authority the OGC Attorney possessed, the parties to the “Chicago Eight” case entered into a valid, binding settlement agreement and the Respondent’s failure to execute written verification of that agreement violated the Statute.  As a remedy, the Charging Party requests the Respondent be ordered to sign the settlement agreement, abide by its terms, post a notice, and pay attorney fees.     

 

CONCLUSIONS OF LAW

 

                The allegation in this case is that the Respondent failed to comply with §7114(b)(5) of the Statute by not executing an agreement reached between the OGC Attorney and the Union. That section of the Statute imposes on agencies and exclusive representatives as part of the duty to negotiate in good faith the obligation to:

 

if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.

 

It is undisputed that the Respondent refused to sign the agreement reached by the OGC Attorney and the Union at the arbitration hearing conducted in the “Chicago Eight” case and the question presented by this case is whether the Respondent was obligated under the Statute to execute such agreement.   More specifically, the issue boils down to whether the OGC Attorney had authority to enter into an agreement that was binding on the Respondent.

 

Under the Statute, grievance settlements are binding on the parties and enforceable.  See, e.g.,        U.S. Dep’t of the Army, Corps of Eng’rs, Nw. Div. & Seattle Dist., 64 FLRA 405, 407 (2010).  The Authority applies the principles of agency law to determine the authority of representatives of a party to enter into an agreement.  See, e.g., U.S. Dep’t of Def., Def. Language Institute, Foreign Language Ctr., Monterey, Cal., 64 FLRA 735, 744 (2010)(DLI); Am. Fed. of Gov’t Employees, Local 2207, 52 FLRA 1477, 1480-81 (1997)(AFGE).   See also U.S. Small Bus. Admin., Wash., D.C., 38 FLRA 386, 406-07 (1990)(SBA).  The authority of an agent to act on behalf of the principal can be either actual or apparent.  DLI, 64 FLRA at 744.  Actual authority is authority that the principal has intentionally conferred on the agent.  Id.  Apparent authority occurs where the principal has held out the agent as having authority to act on behalf of the principal or has permitted the agent to represent that he has such authority.  Id. 

 

It is undisputed and the record in this case establishes that the OGC Attorney was assigned to represent the Respondent in the arbitration of the “Chicago Eight” case.  I find, however, that the OGC Attorney was appointed to litigate the matter and was not given settlement authority by the Agency officials to whom that authority was delegated.  It is clear from the delegation of authority evidence made part of the record that Sklar and Cristaudo were the officials with whom the relevant settlement authority rested.  The record also establishes that although Sklar and Cristaudo could authorize others to serve as their representative or spokesperson with respect to the exercise of their authority, they could not re-delegate their settlement authority.  The evidence in the record shows that although the OGC Attorney sought authorization to engage in settlement discussions and to reach agreement on a settlement, no settlement delegation was requested from Cristaudo by the OGC Attorney and his efforts to obtain such authorization from Sklar were rebuffed by Fredericks on behalf of Sklar.  Although the Charging Party argues that Cristaudo’s testimony is “simply not credible,” there is no evidence in the record that disputes Cristaudo’s testimony that he had not authorized the OGC Attorney to settle the “Chicago Eight” case and there was nothing about his testimony that provided reason to question his veracity on this matter.  In the absence of evidence establishing that either Cristaudo or Sklar actually authorized the OGC Attorney’s settlement of the grievance, I find that the OGC Attorney did not have actual authority to settle the “Chicago Eight” case.

 

Turning to the question of apparent authority, there is credible and unrebutted evidence that despite not being granted settlement authority by either Sklar or Cristaudo, the OGC Attorney indicated at the hearing that he had settlement authority and proceeded to engage in settlement discussions that resulted in an agreement.  However, there is no evidence that either Cristaudo or Sklar did anything to suggested to the Union or the arbitrator that the OGC Attorney was in fact authorized to settle the matter without their review and approval.  Rather, all that occurred was the OGC Attorney being assigned to represent the Agency at the arbitration hearing.  Although it is not uncommon that attorneys engage in settlement efforts during the course of handling litigation for a client, it has long been recognized that an attorney of record may not settle a client’s case without express authority.  See, e.g., Mid-South Towing Co. v, Har-Win, Inc., 733 F.2d 386 (5th Cir. 1984) (Mid-South Towing); Beebe, 180 U.S. at 351-52; Holker & Others v. Parker, 7 Cranch 436, 11 U.S. 436 (1813)(Holker).  While it is generally accepted that an attorney of record is presumed to have authority to settle litigation on behalf of a client, that presumption is rebuttable by affirmative proof that the attorney had no right to consent to the settlement.  See, e.g., Mid-South Towing, and Beebe.  Furthermore, rebuttal of the presumption renders any purported settlement ineffective.  Garabedian v. Allstates Engineering Co., 811 F.2d 802 (3rd Cir. 1987).

 

In this case, any presumption that the OGC Attorney had the authority to settle the grievance without the approval of Cristaudo or Sklar was rebutted by the testimony of Cristaudo and Fredericks that no authority to settle the case was delegated to the OGC Attorney.  In fact, it was established at the hearing that such settlement authority could not be further delegated.  Thus, the OCG Attorney’s role as attorney of record for the Agency provides no basis for presuming that he was delegated authority to settle the case because such a delegation was not authorized by virtue of his being the attorney of record.  While I have no doubt that the OGC Attorney told the arbitrator and other parties that he had settlement authority, and that gave them reason to believe and presume that as the attorney of record he had such authority, their presumption was rebutted by testimony of other credible witnesses.  While the OGC Attorney was not available to testify about the veracity of his declarations, his improper behavior in other cases, as well as his decision to take his own life, leads me to conclude that it is more probable than not, that he was mendacious in making those declarations and recognized that his deceit would ultimately be discovered.

 

Another question that arises in determining whether the OGC Attorney had authority to enter into the settlement agreement is whether apparent authority is even applicable when the principal involved is the Federal government.  There is a significant body of precedent that holds when the principal is the government; the agent must have actual, rather than apparent, authority in order to bind the government.     See, e.g., H. Landau & Co. v. U.S., 886 F.2d 322 (Fed. Cir. 1989)(Landau); Jordan v. U.S., 77 Fed. Cl. 565,  569-70 (2007)(Jordan); Jackson v. U.S., 573 F.2d 1189, 1197 n.2 (Ct. Cl. 1978)(Jackson) (“It is well established that the Government is not bound by the acts of an agent who only has apparent authority.”). 

 

In the SBA case cited earlier, the Authority appeared to adopt and apply the principle that the Federal government cannot be bound by acts of an agent not clothed with actual authority to enter into an agreement.  38 FLRA at 406-07.  In that case, the Authority, citing Jackson, stated, “[w]hen the terms and conditions of an agreement with the Federal Government are disputed by the Government, those terms and conditions are not valid in the absence of proof that the agent had the actual authority to agree to such terms and conditions.”  Id.  Thus, the Authority found that a settlement agreement was void and unenforceable because, among other things, the supervisor who executed the settlement agreement lacked actual authority to agree to it.

 

However, the Authority’s reasoning in the more recent DLI case suggests that apparent authority on the part of an agent may be sufficient to bind the Federal government.  In that decision, the Authority found an agency official who entered into an agreement with the exclusive representative of some of its employees had both actual and apparent authority to do so.  64 FLRA at 744-45.  In DLI, the Authority relied on its decision in AFGE in support of its finding that the management official had apparent authority.  64 FLRA at 745.  However, there is a significant distinction between the circumstances involved in AFGE from those in this case and for that matter DLI.  Specifically, the principal whose agent was found to have apparent authority in AFGE was a labor union and not the Federal government.  Hence, the principle articulated in cases such as Laudau, Jordan, and Jackson that apparent authority is not sufficient to bind the Federal government did not apply in AFGE, thus, the Authority’s holding in AFGE was not contrary to earlier federal court decisions holding that only actual authority will suffice in binding the Federal government.

 

With respect to the application of the principles of agency law in DLI, it is not apparent from the Authority’s decision that any party in that case raised the question of whether actual authority of an agent is required in order to bind the Federal government.  Moreover, in view of the Authority’s finding that the agent acting for the Federal government in that case possessed actual authority, whether he also had apparent authority was not critical to the disposition of the case.  Thus, the discussion of apparent authority contained in DLI can be characterized as dicta.  Although DLI and SBA present some confusion about the Authority’s position on the question of whether apparent authority is sufficient for an agent’s actions to bind the Federal government, I find the weight of precedent from the Authority and federal courts requires finding that apparent authority is not sufficient to bind the Federal government.  Based on the predominant weight of precedent, I find that even if the OGC Attorney vested himself with apparent authority to settle the “Chicago Eight” grievance through his own misrepresentations, such apparent authority was not sufficient to bind the Respondent and any settlement agreement he authorized was void and unenforceable. Similarly, any vesting of apparent authority created by virtue of his being appointed attorney of record without providing notice of his lack of actual authority or other inaction on the part of Respondent’s employees was not enough to make a settlement reached by the OGC Attorney binding upon the Respondent on the basis of apparent authority.    

 

In finding that the OGC Attorney’s actions did not bind the Respondent, I reject the argument that the requirements of §7114(b)(2) necessitate finding that he had sufficient authority.  Regardless of whether or not the OGC Attorney should have been vested with authority to reach agreement, the fact of the matter is that he was not given that authority.  Also, the question of whether the OGC Attorney should have been vested with authority to enter into settlement negotiations and reach an agreement under that provision is not one presented by the unfair labor practice allegation set forth in the complaint for this case.  Rather, the violation that was alleged and litigated, is whether the Agency unlawfully refused to execute and implement the settlement agreement the OGC Attorney accepted.  The extent to which the collective bargaining requirements of §7114(b)(2) apply to arbitration proceedings and settlement discussions related thereto is an intriguing question that has no readily apparent answer.[8]  However, it is not the question before me in this case as the General Counsel’s complaint did not allege that the Respondent failed to send a duly authorized representative to collective bargaining negotiations[9] and reaching that question is not required to resolve this present case.

 

In summary, I find the OGC Attorney lacked the actual authority to enter into a settlement agreement that was binding upon the Respondent, that apparent authority is not sufficient to bind the Respondent to the terms of a settlement agreement, and the Respondent’s refusal to execute or implement any settlement agreement reached between the Union and the OCG Attorney did not constitute a failure to comply with the collective bargaining obligations imposed by §7114(b)(5) of the Statute.                      

 

CONCLUSION AND RECOMMENDATION

 

The General Counsel failed to establish that the Respondent violated §7116 (a)(1), (5) and (8) of the Statute as alleged.  Accordingly, I recommend that that Authority issue the following Order:

 

 

 

 

 

ORDER

 

                It is ordered that the complaint be, and hereby is, dismissed.

 

Issued, Washington, D.C., December 21, 2011.

 

 

____________________________________

CHARLES R. CENTER

Chief Administrative Law Judge

 

 

 

 

 



[1] Although the title page of the collective bargaining agreement identifies the Agency as “Office of Disability Adjudication and Review” references within the body of the collective bargaining agreement are to “Office of Hearings and Appeals.”             (G.C. Ex. 7).  According to undisputed testimony during the hearing, the Office of Hearings and Appeals was subsequently redesignated the Office of Disability Adjudication and Review.  (Tr. 16).

[2] A few weeks after the arbitration hearing was held in this case, the OGC Attorney committed suicide.  (Tr. 280).

[3] During the settlement efforts, Judge Madden worked with the grievants and was not involved in the direct discussions with the OGC Attorney and Boxerman.  (Tr. 91-92).

 

[4] The eighth grievant had departed but was going to sign the next morning.  (G.C. Exh. 3).

[5] Judges Lillios, Bede, and McGuire were functioning or had been part of local management of the Chicago ODAR Office.  (Tr.49, 54, 269).

 

[6]  The parties stipulated that Judges Madden, Welch, and Wenzel, as well as Judge Dale Glendening, did not have knowledge of the delegation document or its contents regarding approval of settlement agreements.  (Tr. 285).

 

[7] At the start of the hearing in this case, the undersigned requested that the parties address in their post hearing briefs whether negotiations to settle a matter raised under the grievance process constituted collective bargaining.  (Tr. 10.)

[8]  I note that although the National Labor Relations Board found that grievance meetings are integral parts of the collective bargaining process and subject to the requirement of good-faith bargaining under the National Labor Relations Act, in doing so it distinguished grievance meetings from