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The decision of the Authority follows:
54 FLRA No. 100
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION REGION WEST
September 28, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Mark J. Keppler filed by AFGE Local 1399 under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Defense Logistics Agency (DLA) filed an opposition to Local 1399's exceptions.
The Arbitrator ruled that Local 1399 violated a memorandum of agreement. We conclude that Local 1399 fails to establish that the award is deficient. Accordingly, we deny its exceptions.
II. Background and Arbitrator's Award
The national office of AFGE is the exclusive representative of DLA employees in nationwide consolidated units (professional and nonprofessional). AFGE has delegated to the DLA Council of AFGE Locals (DLA Council) the authority to deal with DLA on all labor relations matters, including collective bargaining. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 53 FLRA 460, 460-61 (1997) (DDRW); Award at 7. Defense Distribution Region West (DDRW) is a primary subdivision of DLA. Defense Distribution Depot San Diego, California (DDDC) is a depot administered by DDRW and is a tenant activity at the San Diego naval base. AFGE Local 1399 represents the DDDC employees and other Department of Defense employees at the naval base, but only the DDDC employees are in the DLA bargaining unit. Local 1399 is the local representative of DDDC employees.
DLA and the DLA Council have a master labor agreement (MLA) covering the consolidated units. In 1995, DDRW and the DLA Council entered into a number of memoranda of agreements (MOAs). See DDRW, 53 FLRA at 461; Award at 8. Many of the AFGE locals representing DDRW employees disagreed with the MOAs and brought internal union charges against the DLA Council president and a vice president disputing their authority to enter into the agreements.(1)
The MOA at issue in this case concerns an internal dispute resolution process (IDRM MOA). The IDRM MOA was executed by designated representatives of DLA and by the president and a vice president of the DLA Council. See DDRW, 53 FLRA at 461. The IDRM process requires DDRW and AFGE to use certain dispute resolution procedures prior to raising the dispute with any outside parties, such as the Authority.
In this case, Local 1399 filed an unfair labor practice (ULP) charge with the Authority without complying with the IDRM process. As a result, the Agency filed a grievance, which contended that failure of Local 1399 to utilize the IDRM process violated the IDRM MOA.
The Arbitrator found that he was presented with two issues: (1) whether the grievance was arbitrable; and (2) whether Local 1399 violated the IDRM MOA when it filed a ULP charge without using the IDRM process. The Arbitrator ruled that the grievance was procedurally and substantively arbitrable. He found that under Article 36 of the master labor agreement, the Agency was entitled to file the grievance and that it was timely filed.
He also ruled that Local 1399 violated the IDRM MOA. He noted that Local 1399 did not dispute that it filed the ULP charge without utilizing the IDRM process, but, instead, primarily contended that the IDRM MOA was not an enforceable agreement. The Arbitrator reviewed the authority of the DLA Council and its officers to negotiate agreements and concluded that the IDRM MOA was a valid agreement and that Local 1399 was bound by its terms. Accordingly, he sustained the grievance and ordered Local 1399 to cease and desist from filing claims with outside parties without first utilizing the IDRM process.
III. Positions of the Parties
A. Local 1399's Exceptions (2)
Local 1399 has submitted the following contentions in its exceptions.
1. "The consolidation of the DLA employees, who were formerly provided exclusive recognition as a part of AFGE Local 1399, now came under the National Office of AFGE in violation of Section 4, Article 1 of the [MLA]."(3) Exceptions at 2.
2. "The delegation of authority from AFGE to the DLA Council of AFGE Locals was in violation of Section 3, Article 1 of the [MLA]."(4) Id.
3. "The arbitrator did not address which is controlling; the [MLA] or the Delegation of Authority." Id.
4(a). "Although the [record] clearly reflects violations of the law [Administrative Dispute Resolution Act (ADRA)][,] [t]he decision of the Arbitrator does not address those violations." Id.
4(b). "A supplemental agreement was negotiated by the parties . . . which did not include an ADR process." Id.
4(c). "The IDRM process negotiated does not contain a provision for a 'neutral[.]'" Id.
4(d). "The administrative procedures of the Law 'require the attendance at any conference held . . . of at least one representative of each party who has authority to negotiate concerning resolution of issues in controversy.' This Local was not allowed to attend any of the Council's IDRM processes . . . ." Id. at 2-3.
4(e). "[Section] 52(5) stipulates
(b) An agency shall consider not using a dispute resolution proceeding if--
(4) the matter significantly affects persons or organizations who are not parties to the proceeding[.]"
Id. at 3 (transcript citation omitted).
4(f). "Under that same [section] 52 is found[:] '(c) Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques.' [The IDRM MOA] not only makes the IDRM process mandatory, but . . . includes inquiries to Congress, the Media, or any other third party by the Union, but not an individual[.]" Id. (transcript citation omitted).
4(g). "[Section] 54(6) of the law requires 'confidentiality' of the ADR process." Id.
5. "The [IDRM MOA] negotiations involved only members of the [DLA] Council and the Agency . . . . The Locals affected had no prior knowledge that negotiations were taking place. . . ." Id.
6. "This Local would also claim a violation of the Federal Labor Relations Statute in . . . Case [No.] WA-CU-20915 giving 'exclusive recognition' to the National Office of AFGE . . . .(7)" Id. (footnote added).(8)
7. "The Union also argued the procedure and time limits of Agency's filing of its grievance against this Local. The [MLA] does not have a procedure for the filing of a grievance by the Region of the DLA against a Local. . . . [T]his Local believed that if such a procedure existed, it had to come from the MOA of 25 July 1995; however, that procedure required filing in writing to the Union President within ten workdays, followed by a discussion within ten workdays and a written response within ten workdays. This meeting never took place. After receipt of the response from the Union President, the Agency was required to advance the grievance to the DLA/AFGE vice-president within ten workdays after receipt of the decision. Instead the Agency forwarded the grievance and response to the IDRM process involving this same DLA/AFGE vice-president in an untimely manner. . . . There was no step-2 of the grievance process; however paragraph 4 of the grievance MOA required submission to the IDRM process only after the Step-2 decision.
Although the Agency claims to have rescinded the grievance procedure . . . [it] did not rescind the entire grievance procedure. . . . If it was their intent to return to the entire procedure of Article 36 . . ., it should have so stated. That would then mean there was no procedure for the Agency to file a grievance against this Local because such a procedure did not exist in the [MLA]." Id. at 4 (citations omitted).
8. "The [IDRM] makes no mention of waiving any negotiated or statutory time limits. Instead, one would assume that such a mechanism would be required to be completed prior to the deadline of any such time constraints. If the parties meant for negotiated or statutory time limits to be delayed until after the ADR process, it should have so stipulated that information within the content of the Agreement." Id. at 5.
9. "Our pre-hearing brief contained language extracted from the Constitution of the DLA Council of AFGE Locals . . . which stated in essence that a Local is autonomous and 'shall be entitled to full participation on all matters before this Council through the medium of a delegate(s).' This Local was not allowed to participate in the formulation of the Memorandi [sic] . . . nor was it allowed the priviledge [sic] of ratification of those Memorandi [sic]." Id.
B. Agency's Opposition
The Agency asserts that Local 1399's exceptions are a series of statements with no connection to any basis on which the award is allegedly deficient. More specifically, the Agency claims that Local 1399 fails to explain how the consolidation of DLA employees or the delegation of authority to the DLA Council violates the MLA. In addition, the Agency maintains that the investigation by AFGE National specifically found that the delegation was appropriate.
With respect to the Administrative Dispute Resolution Act, the Agency asserts that the Union fails to explain how the IDRM process violates the Act. The Agency argues that the Arbitrator's failure to address whether the MLA or the delegation of authority to the DLA Council was controlling provides no basis for finding the award deficient because it was not an issue submitted to the Arbitrator. The Agency also argues that the Arbitrator properly found that the grievance was arbitrable. Finally, to the extent that the exceptions raise issues that were not presented to the Arbitrator, the Agency asserts that they should not be considered by the Authority.
IV. Analysis and Conclusions
A. Exceptions Barred by Section 2429.5 of the Authority's Regulations
Under section 2429.5 of the Authority's Regulations, we will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 328 (1995) (Ft. Sam Houston). Many of the issues raised by Local 1399 in its exceptions relate, not to the award, but to the Agency's actions or the IDRM MOA. Consequently, they could have been raised at arbitration, and, in order to be considered by the Authority, must have been presented to the Arbitrator. See American Federation of Government Employees, Local 3627 and Social Security Administration, Office of Hearings and Appeals, Orlando, Florida, 53 FLRA 1351, 1351 n* (1998) (SSA).
Our examination of the pre-hearing briefs, transcript, and the Arbitrator's award indicates that the issues of the following exceptions were not presented to the Arbitrator: 1, 2, 4(b), 4(d), 4(f), 4(g), and 6. While conceding that it did not present to the Arbitrator many issues of its exceptions, Local 1399 claims that "these issues" were raised by the Agency in its exhibits 6, 7, and 8 and testimony by the Agency's witness. Exceptions at 4.
Agency exhibit 6 is a copy of the Authority's clarification of unit decision, Case No. WA-CU-20915. Agency exhibit 7 is National AFGE's delegation of authority to the DLA Council. Agency exhibit 8 is a letter to DDRW advising DDRW that the DLA Council president had delegated to a vice president authority for all labor relations matters "that are of a region wide scale." Our review of these exhibits and the cited testimony fails to indicate that any exhibit or testimony presented to the Arbitrator any of the issues raised by Local 1399 in the exceptions specified above. Accordingly, the specified exceptions are barred from consideration by the Authority under section 2429.5. The exceptions raise issues that could have been, but were not, presented to the Arbitrator. See SSA, 53 FLRA at 1351 n.*; Ft. Sam Houston, 50 FLRA at 328.
B. The Award is not Deficient Because the Arbitrator Failed to Address Whether the MLA or the Delegation was Controlling (Exception 3)
We construe exception 3 as a contention that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration. See American Federation of Government Employees, Local 3310 and U.S. Department of the Army, Army Corps of Engineers, Waterways Experiment Station, Vicksburg, Mississippi, 53 FLRA 1595, 1599 (1998). Arbitrators do not exceed their authority when, in the absence of a stipulation between the parties as to the issues to be resolved, the arbitrator frames the issue to be decided and the award is responsive to that issue. See id.
In this case, as the parties did not stipulate the issues for resolution, the Arbitrator was free to frame them. The Arbitrator framed the merits issue as whether Local 1399 violated the IDRM MOA when it filed the ULP charge without using the IDRM process, and his award is responsive to this issue. In resolving this issue, the Arbitrator concluded that the IDRM MOA was a valid agreement and that Local 1399 was bound by its terms. Local 1399 fails to establish that the Arbitrator was required to make a finding on whether the MLA or the delegation of authority to the DLA Council was controlling in order to decide that the IDRM MOA was a valid agreement. Consequently, Local 1399 fails to establish that the Arbitrator exceeded his authority by failing to resolve an issue submitted to arbitration. See id.
C. Lack of Ratification of MOA (exception 9) and Lack of Involvement of Local 1399 (exceptions 5 and 9) Provide no Basis for Finding the Award Deficient
In these exceptions, Local 1399 asserts that it had no prior knowledge of, and was not involved in, the negotiation of the IDRM MOA and that it was denied the privilege of ratification of the IDRM MOA. These assertions do not specifically address a deficiency of the award on any ground set forth in section 7122(a) of the Statute. Consequently, these exceptions provide no basis for finding the award deficient.
D. Dispute of Arbitrability Determinations Provides no Basis for Finding Award Deficient (exceptions 7 and 8)
In these exceptions, Local 1399 claims that contrary to the Arbitrator's determination, the grievance was not arbitrable. The Arbitrator found that the grievance was both procedurally and substantively arbitrable.
An arbitrator's determination of the procedural arbitrability of the grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). In this case, Local 1399 disputes the Arbitrator's determination that the grievance was timely filed. Thus, Local 1399 is directly challenging the Arbitrator's procedural arbitrability determination. Accordingly, these exceptions provide no basis for finding deficient the Arbitrator's determination that the grievance was timely filed.
The Arbitrator found that the grievance was substantively arbitrable because the Agency was entitled to file the grievance under Article 36 of the master labor agreement. We construe Local 1399's exceptions to this determination as an assertion that the award fails to draw its essence from the master labor agreement. Local 1399 fails to demonstrate that such an interpretation of the master labor agreement disregards the agreement or is implausible, irrational, or unfounded. See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 53 FLRA 1353, 1355 (1998); National Treasury Employees Union, Chapter 260 and Federal Deposit Insurance Corporation, Southwest Field Office, Addison, Texas, 52 FLRA 1533, 1537-38 (1997); American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 52 FLRA 1518, 1521 (1997). Accordingly, these exceptions provide no basis for finding deficient the Arbitrator's determination that the Agency was entitled to file the grievance.
E. The Award is not Contrary to the ADRA
The only exceptions pertaining to the Administrative Dispute Resolution Act(9) that are not barred from consideration are 4(a), 4(c), and 4(e). In these exceptions, Local 1399 contends: (1) the Arbitrator failed to address the violations of the ADRA; (2) the IDRM process does not provide for a neutral; and (3) 5 U.S.C. § 572 provides that an agency shall consider not using a dispute resolution proceeding if the matter significantly affects persons or organizations that are not parties to the proceeding. When exceptions to an award involve the consistency of the award with law, the Authority reviews the questions of law raised by the award and the exceptions de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). Because Local 1399 fails to provide any basis for finding that the award is contrary to the ADRA, we need not decide in this case whether the ADRA applies to the IDRM process.
Construed most favorably to Local 1399, exception 4(e) claims that the IDRM MOA was not enforceable as a result of the Agency's failure to consider not using the IDRM process because of its significant effect on those not party to the proceeding. However, this claim provides no basis for finding the award deficient. Thus, assuming arguendo the application of section 572, Local 1399's citation to section 572(b)(4) alone is too bare an assertion to establish that the award is deficient. See U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1215 (1996). For example, Local 1399 fails to identify any significant effect on nonparties and does not substantiate its implicit assertion that the Agency failed to consider not using the IDRM process.
Similarly, even if we were to assume, arguendo, that the ADRA applied, no support is provided for exception 4(c). The definition of "dispute resolution proceeding" in section 571 as a process in which a neutral is appointed does not establish that the ADRA requires that all alternative dispute resolution procedures must have a neutral. Section 572(c) does not limit other available dispute resolution techniques, thereby permitting such approaches as provided in the IDRM MOA, i.e., face-to-face discussions without a neutral.
For these reasons, even if the ADRA applied, Local 1399 fails to establish any violation of the ADRA.(10) As Local 1399 has failed to establish any violations of the ADRA, the Arbitrator's failure to address any violations of the ADRA provides no basis for finding the award deficient.
The exceptions are denied.
1. As a result of the complaints, AFGE's national president appointed a committee that investigated the general operation of the DLA Council. In March 1997, the committee issued its final report. DLA submitted a copy of the report for consideration by the Authority in DDRW and has attached portions of the report to its opposition to Local 1399's exceptions. The committee concluded that the MOAs were enforceable because the council president and vice president had the authority to negotiate the MOAs on behalf of the DLA Council by virtue of the authority delegated to the council and the president by National AFGE, the exclusive representative.
2. Local 1399 filed exceptions, dated March 3, 1997. The Authority sent Local 1399 a deficiency notice that required it to file a statement of service and complete copies of its exceptions. Local 1399 filed complete copies of its exceptions with a certificate of service, dated March 24, 1997. The Agency alleges that the exceptions dated March 24 contain material that was not included in the exceptions dated March 3. A comparison of the exceptions shows that material has been added. Consequently, we will not consider the additional material.
3. Article 1, Section 4(A) provides:
The DLA Council and the Agency agree that in the event that the AFGE or any local affiliated with AFGE seeks recognition in the future as the exclusive bargaining agent of any group of DLA appropriated fund employees which are not presently a part of one of the consolidated units, it will be the joint position of the DLA Council and the Agency to the Federal Labor Relations Authority that the employees should become a part of the professional or nonprofessional employees consolidated unit, as appropriate.
4. Article 1, Section 3 pertinently provides:
No other organization, association, or union, or any officer or representative thereof, shall be recognized, in any capacity or for any purpose, as the bargaining agent of the consolidated units.
5. Local 1399 mistakenly cited section 572 as section 582.
6. Local 1399 mistakenly cited section 574 as section 584.
7. WA-CU-20915 is the decision clarifying the DLA units as a result of the reorganization that transferred employees of the Marine Corps and Departments of the Army, Navy, and Air Force, who were represented by AFGE locals, to DLA. The regional director found that the employees had accreted into the existing DLA professional and nonprofessional consolidated bargaining units and clarified the units accordingly. The parties waived their right to file an application for review.
8. At this point, Local 1399 concedes that it did not present "these issues" to the Arbitrator. Exceptions at 4. However, it claims that "these issues" were introduced by the Agency in their exhibits 6, 7 and 8 and in testimony by the Agency's witness.
9. The ADRA, 5 U.S.C. §§ 571-584, was originally enacted in 1990 to provide statutory authorization for, and encourage the use of, administrative dispute resolution procedures by agencies as an alternative to litigation. As originally enacted, the ADRA included a sunset provision, which provided for the Act's expiration in 1995. In the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870 (1996), Congress amended provisions of the Act and made the ADRA permanent.
10. The IDRM MOA was executed in July 1995, before the amendment of the ADRA. Thus, there may be a question as to whether the ADRA of 1996 would apply retroactively. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). However, as the provisions on which Local 1399 relies were unaffected by the 1996 amendments, it is unnecessary to address the issue.