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51:1265(102)AR - - NAGE, Local R3-10 and DOT, FAA - - 1996 FLRAdec AR - - v51 p1265

[ v51 p1265 ]
The decision of the Authority follows:

51 FLRA No. 102














May 3, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Michael Fischetti filed by the Union under section 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.(1)

The Arbitrator denied a grievance contesting the number of competitive levels used during a reduction-in-force (RIF) of Air Traffic Assistants (ATAs). For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.(2)

II. Arbitrator's Award

On September 9, 1993, the Union was certified as the exclusive representative of a nationwide unit of ATAs. Subsequently, the parties negotiated over matters concerning an upcoming RIF of ATAs. On December 22, 1993, based on the parties' understanding that there would be one competitive level for all ATAs, the parties signed a memorandum of understanding (MOU) covering RIFs.(3)

On August 3, 1994, the Agency issued a RIF notification to ATAs, using three competitive levels instead of one. The Agency informed the Union that it was required to use three levels because of a decision by the Merit Systems Protection Board (MSPB) dated February 10, 1994, in Salazar v. Department of Transportation, 60 MSPR 633 (1994) (Salazar). The Salazar case was filed by several ATAs in 1992, before the Union was certified as the exclusive representative. Also before the Union was certified, an MSPB administrative judge (AJ) issued an initial decision rejecting the Agency's position that there should be one competitive level for ATAs and holding that there should be three competitive levels for ATAs, and the Agency appealed the AJ's decision to the MSPB. During the RIF negotiations, the Agency did not inform the Union "that competitive level of [ATAs] was an issue under challenge." Award at 11.

Following the Agency's issuance of the RIF notification to ATAs, the Union grieved the Agency's use of three competitive levels for the ATAs' RIF. The parties did not agree on the issue for arbitration. The Arbitrator stated that the "central issue" before him was "whether or not the [Agency] violated the [a]greement between the [p]arties or whether some other condition such as fraud, mutual mistake of fact, inducement to contract or misrepresentation might exist." Id. at 10.

The Arbitrator found that: (1) there was no law, policy, or regulation that would have required the Agency to disclose the pending Salazar case to the Union; (2) there was no written request from the Union for information from the Agency during negotiations; (3) while the Agency may be guilty of some form of unethical behavior because it could be argued that the Agency had a moral obligation to disclose the information, and "[i]t appears that the Agency withheld a material fact during the bulk of the period of negotiations[,]" id. at 16, no law, rule or regulation, or policy would have required the Agency to disclose such information to the Union; (4) matters pending before the MSPB are public and the Union could have checked to see if such matters were pending and whether they would have an effect on negotiations; and (5) the Union could have polled its members and asked whether anyone was aware of proceedings that could have an impact on the Union's ability to negotiate with the Agency. The Arbitrator stated that, although the Agency did not have "clean hands," the Agency was not obligated "to disclose the information it had." Id. at 17.

The Arbitrator determined that the Union had not met its burden of proof which would have permitted him to void the MOU, and he denied the grievance.

III. Exceptions

A. Union's Contentions

The Union contends that the Arbitrator erred, as a matter of law, in failing to set aside the MOU after he found that the Agency had not acted in good faith, was guilty of unethical behavior, and did not have "clean hands" in connection with the negotiations. Exceptions at 25. According to the Union, once the Arbitrator made these findings, he should have found that the Agency violated section 7114(a)(4) of the Statute.(4) The Union claims that the Arbitrator violated the Statute and public policy by failing to find that the Agency violated section 7114 and to set aside the parties' MOU.

The Union also claims that the award is contrary to law under the Restatement (Second) of the Law of Contracts, because the Arbitrator erred in failing to find that the Union was entitled to void the MOU on the grounds that it was based on the Agency's fraud and misrepresentation and on a mutual mistake of a material fact.

Finally, the Union contends that the Arbitrator erred in finding the Union had access to the initial MSPB decision in Salazar.

B. Agency's Opposition

The Agency argues that the Arbitrator found no law, rule, regulation, or policy that would have required the Agency to disclose information about the Salazar case to the Union. The Agency maintains that under section 7114(b)(4) of the Statute, absent a request from the Union, it was under no obligation to provide any information to the Union. According to the Agency, the Arbitrator's "personal views on the 'moral obligations'" of the Agency are neither findings of fact nor findings of a violation of law, rule, or regulation requiring the Arbitrator to grant the relief requested. Opposition at 5. Further, the Agency asserts that there was no mistake of fact or misrepresentation on either party's part with respect to the negotiations and no basis exists on which the MOU should have been voided. Finally, the Agency states that initial decisions of the MSPB are published and available upon request to the public and, therefore, the initial MSPB decision in Salazar was available to the Union.

IV. Analysis and Conclusions

A. The Arbitrator's Award Is Consistent with the Statute and Public Policy

1. The Award Is Consistent with the Statute

The Union contends that the Arbitrator found that the Agency had acted in bad faith and, therefore, was required to have found that the Agency violated section 7114 of the Statute. Because the Union's exception challenges the award's consistency with the Statute, we must review the question of law raised by the award and the parties' positions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

The duty of an agency and an exclusive representative to negotiate in good faith encompasses the obligations set forth in section 7114(b) of the Statute.(5) Although the Arbitrator stated that "[i]t appears that the Agency withheld a material fact during the bulk of the period of negotiations[,]" and that "[i]f the Agency knew of a material fact . . . it had a moral obligation to inform the Union of the pending situation[,]", Award at 17, the Arbitrator did not conclude that the Agency had acted in bad faith. Moreover, nothing in the record of the case warrants a conclusion that the award is deficient with respect to any of the subparts of section 7114(b). In particular, there is no basis on which to conclude that the Agency failed to approach bargaining with the requisite resolve to reach an agreement, was not properly represented, refused to meet with the Union, or failed to execute a written agreement, as these requirements are set forth in section 7114(b)(1), (2), (3), and (5), respectively. Finally, an agency's obligation to furnish information under section 7114(b)(4) does not arise until the exclusive representative requests the information. The Union in this case made no such request.

2. The Award Does Not Violate Public Policy

The Union claims that the Arbitrator's failure to find that the Agency violated section 7114(a)(4) of the Statute violates public policy. In Social Security Administration and American Federation of Government Employees, Local 1923, 32 FLRA 765 (1988) (Social Security), the Authority addressed whether a claim that an award is contrary to public policy presents a ground for review under section 7122(a)(2) of the Statute:

Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S. Ct. 1589 (1988) (NALC). In order to find the award deficient, the public policy in question must be "explicit," "well defined, and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers v. Misco, Inc., 108 S. Ct. 364, 373 (1987) (Misco). The violation of such a public policy "must be clearly shown" if an award is to be found deficient. Misco, 108 S. Ct. at 373-74.

Social Security, 32 FLRA at 767-68.

The Union has not demonstrated that the Arbitrator's award violates an "explicit" public policy based on "well defined" and "dominant" laws and legal precedents. Accordingly, under our precedent, this exception does not provide a basis for finding the award deficient under section 7122 of the Statute.

B. The Award Is Not Deficient as Inconsistent With the Restatement (Second) of the Law of Contracts

The Restatement of Law is a series of volumes authored by the American Law Institute,(6) setting forth the law in a general area, as it has developed and is applied in different jurisdictions, explaining how it is changing, and discussing the direction that the authors think the changes should take. See Black's Law Dictionary 1313 (6th ed. 1990). The Restatement is not promulgated by a legislative or executive body of any governmental entity, but rather is a publication by a private organization of legal scholars, and, as such, does not constitute a controlling authority. See C.L. Maddox, Inc. v. Coalfield Services, Inc., 51 F.3d 76, 81 (7th Cir. 1995) (The Restatement "of course is not law[.]").

We find that the Restatement itself does not constitute a law within the meaning of section 7122(a) of the Statute on which exceptions to an arbitration award can be predicated.(7) See Oklahoma City Air Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 568, 572 (1990). Moreover, no argument has been presented that any particular aspect of the common law principles reflected in the Restatement governs the parties' collective bargaining relationship. Therefore, the Union's contention that the award violates the Restatement provides no basis on which the award can be found deficient.

C. The Union's Contention Regarding Access to the Initial MSPB Decision Does Not Demonstrate that the Award Is Deficient

We construe the Union's argument that the Arbitrator erred in concluding that the Union had access to the initial MSPB decision as a contention that the award is deficient as based on a nonfact.

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).

The Union has not demonstrated that the Arbitrator's finding that the Union had access to the initial MSPB decision is the central fact underlying the award. See U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, SEIU, 50 FLRA 566, 569 (1995). Moreover, the Union has not shown that the Arbitrator's finding is clearly erroneous. Initial MSPB decisions are available to the public. See 5 C.F.R. §§ 1201.111, 1204.11; Peter Broida, A Guide to Merit Systems Protection Board Law & Practice 11 (11th ed. 1994). Accordingly, the Union's exception provides no basis to set aside the award.

V. Conclusion

The Union's exceptions are denied.(8)

(If blank, the decision does not have footnotes.)

1. The Union contends that the Agency's opposition was untimely filed. However, the Union erred in calculating the due date of the opposition by failing to include the 5 days permitted under section 2429.22 of the Authority's Regulations because of service by mail. Accordingly, the Agency's opposition was timely filed.

2. The Union filed a motion requesting expedited review of its exceptions in this case. In view of this decision, the Union's motion is denied as moot. See Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 48 FLRA 822 n.1 (1993), reconsideration denied, 49 FLRA 7 (1993).

3. A competitive level consists "of all positions in a competitive area which are in the same grade (or occupational level) and classification series and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position could successfully perform the critical elements of any other position upon entry into it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee." 5 C.F.R. § 351.403(a). A competitive area is a grouping of employees within an agency, according to their geographical or organizational location, who compete for job retention when a particular position is abolished. American Federation of Government Employees, Local 12 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 492-93 n.3 (1995), petition for review filed, No. 95-1593 (D.C. Cir. Dec. 1, 1995) (citations omitted); 5 C.F.R. § 351.402.

4. Section 7114(a)(4) provides, in pertinent part, that:

Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. . . .

5. Section 7114(b) provides, in pertinent part:

The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--

(1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;

(2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment;

(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;

(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data . . . and

(5) 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.

6. The American Law Institute is a private organization of judges, lawyers, and law professors.

7. Law is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. Black's Law Dictionary 884 (6th ed. 1990), citing United States Fidelity and Guaranty Co. v. Guenther, 231 U.S. 34 (1930). See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389-91 (1991), reversed as to other matters, 996 F.2d 1246 (D.C. Cir. 1993).

8. Our denial of the Union's exceptions should not be construed as condoning the Agency's action that gave rise to the dispute in this case. It would have been better labor relations practice for the Agency to share with the Union, during the parties' negotiations, such information as it had concerning the Salazar case. Had the Agency done so, the considerable resources expended by the parties and others in connection with this dispute could have been used in a more effective and efficient manner, consistent with Congress' findings as set forth in section 7101 of the Statute.