[ v55 p1141 ]
55 FLRA No. 183
U.S. DEPARTMENT OF DEFENSE
FORT CAMPBELL EDUCATION
November 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members
Decision by Chair Segal for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Stanley H. Sergent, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated a provision in the parties' collective bargaining agreement that required the Agency to increase the wage rates of the grievants by 10 percent. The provision at issue resulted from interest arbitration. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency and Union reached impasse in negotiations over the amount of pay increases to be provided to unit employees, and the Union submitted the impasse to the Panel. The Panel accepted jurisdiction and referred the dispute to a Panel arbitrator for mediation and arbitration. The Panel arbitrator ordered the parties to incorporate a provision in their contract that stated, in pertinent part, "the pay schedule for bargaining unit members shall be increased 10% above the [prior] pay [ v55 p1142 ] schedule . . . ." Panel Arbitrator's Award at 8, Attachment C to Agency's Exceptions.
The Agency implemented the Panel arbitrator's award by adjusting each of the steps of the pay scale by 10 percent. The Agency did not provide a 10 percent increase to 11 employees whose current pay exceeded the highest wage level on the pay scale. The grievance sought a 10 percent wage increase for these 11 employees. When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator framed the issues to be resolved as follows:
Is the grievance arbitrable? Does the arbitrator have the authority to clarify or to enforce a contract provision resulting from a decision of the Federal Service Impasse[s] Panel? Did the Agency violate the collective bargaining agreement by failing to give the entire bargaining unit a  percent pay increase for fiscal year 1995?
Award at 9.
The Arbitrator sustained the grievance and directed the Agency to increase the wage rates of the grievants to 10 percent with back pay.
The Arbitrator rejected two jurisdictional issues raised by the Agency. First, responding to the Agency's jurisdictional claim that the dispute could only be adjudicated as an unfair labor practice, the Arbitrator found that the unfair labor practice procedure and the grievance procedure are both appropriate to enforce compliance with a Panel arbitrator's award. Id. at 18 (citing 5 U.S.C. 7116(d)). The Arbitrator also found that "[s]ince the salary provision at issue herein is a part of the collective bargaining agreement, the Union clearly has the right to determine its meaning and intent through the grievance procedure." Id. Second, in response to the Agency's argument that, under Article 26, Section 7 of the parties' agreement, the Panel arbitrator has the sole authority to clarify the award, [n1] the Arbitrator found that this provision applied only to arbitration awards resolving grievances, not interest arbitration awards such as involved in this case. The Arbitrator thus concluded that the grievance was properly before him.
Addressing the merits of the grievance, the Arbitrator found that the grievants were not afforded the full pay increase as required by the agreement. The Arbitrator stated that, during the interest arbitration proceeding, both parties proposed "across-the-board" pay increases, and that neither party argued for pay schedule increases. Id. at 20. According to the Arbitrator, the Panel arbitrator ordered the parties to adopt a modified version of the Union's proposal, "clearly and unequivocally [stating] that she . . . 'adopts the Union's proposal for an 'across-the-board' pay increase of  percent. . . .'" Id. (quoting Panel Arbitrator's Award at 7).
The Arbitrator concluded that the Panel arbitrator intended for all employees to receive a 10 percent raise based on her directive that "'the parties shall adopt the Union's proposal,'" which, according to the Panel arbitrator, called for "'an across-the-board pay increase of 10 percent.'" Id. (quoting Panel Arbitrator's Award at 8, 7). Therefore, the Arbitrator sustained the grievance and awarded the grievants a retroactive 10 percent wage increase and back pay.
III. Positions of the Parties
The Agency argues that the award "does not draw its essence from the [parties' agreement] because the Arbitrator exceeded his authority." Exceptions at 9. The Agency asserts that, under Article 26, Section 7 of the parties' agreement, the Arbitrator did not have jurisdiction to clarify the Panel arbitrator's award. The Agency contends that the Arbitrator disregarded a specific limitation on his authority by finding this matter grievable and resolving this dispute on its merits.
The Agency also argues that the award is contrary to law, on two grounds. First, it asserts that, pursuant to section 7116 of the Statute, a charge that a party failed to comply with a Panel arbitrator's award must be adjudicated as an unfair labor practice. Second, the Agency asserts that, by failing to file exceptions to the Panel arbitrator's award, the Union allowed the award to become final and binding. According to the Agency, the Union may not make a "collateral attack" on the Panel arbitrator's award, and the Arbitrator cannot "legally overturn or change a final [Panel] interest award." Id. at 15.
Finally, the Agency contends that the award is based on a nonfact. The Agency asserts that the Arbitrator erroneously found that the Union did not request an increase in the salary schedule. According to the Agency, the Arbitrator's conclusion about the meaning of the disputed salary provision is based on "this erroneous finding." Id. at 12. [ v55 p1143 ]
The Union argues that the award does not fail to draw its essence from the parties' agreement because, according to the Union, the Arbitrator properly concluded that Article 26, Section 7 applies only to grievance arbitration awards. The Union also argues that the award is not contrary to section 7116 of the Statute. The Union asserts that, although it is an unfair labor practice under the Statute to fail to cooperate in impasse decisions, it is also a grievable matter, and the grievants were free to elect between the two procedures.
Finally, the Union contends that the award is not based on a nonfact. The Union asserts that the testimony of its chief negotiator, who explained that the Union's pay proposal of an "across-the-board" pay increase meant that all of the bargaining members would receive a 10 percent raise, supports the Arbitrator's finding of fact on this point. Opposition at 8-9.
IV. Analysis and Conclusions
A. The award draws its essence from the collective bargaining agreement and the Arbitrator did not exceed his authority.
The Agency claims that the award "does not draw its essence from the [parties' agreement] because the Arbitrator exceeded his authority." Exceptions at 9. In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997), citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). Insofar as the Agency intends to raise a separate exception that the Arbitrator exceeded his authority, an award is deficient on this ground when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).
Article 26, Section 7 of the parties' agreement states that "disputes over the application of an arbitrator's award shall be returned to the arbitrator for  clarification." See supra note 1. The Arbitrator found that this section of the parties' agreement does not apply to interest arbitration awards. The Agency has not demonstrated that the Arbitrator's interpretation and application of Article 26, Section 7 is unfounded, implausible, or irrational. In addition, the Arbitrator did not, as the Agency alleges, disregard a specific limitation on his authority by finding this matter grievable and resolving this dispute on its merits. As such, the award does not fail to draw its essence from the parties' agreement and the Arbitrator did not exceed his authority.
B. The award is not contrary to law.
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See 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)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
We reject the Agency's contention that the award is contrary to section 7116 of the Statute. Although failure to comply with a Panel arbitrator's award constitutes an unfair labor practice pursuant to section 7116(a)(6), this does not lead to the conclusion that a dispute over the interpretation of a provision ordered by the Panel cannot be considered as a grievance under a negotiated grievance procedure. The statutory definition of grievance includes any complaint concerning the "interpretation" of an "agreement." 5 U.S.C. 7103(a)(9). The fact that a particular contract provision resulted from interest arbitration does not mean that the provision is not part of an "agreement." As such, the Authority has routinely considered arbitration exceptions to awards resolving grievances concerning the interpretation of Panel-imposed contract provisions. See, e.g., U.S. Information Agency, Voice of America and American Federation of State, County and Municipal Employees, Local 1418, 55 [ v55 p1144 ] FLRA 197, 197 n.2 (1999). See also American Federation of Government Employees, Local 225, 1504 and 3723, AFL-CIO v, FLRA, 712 F.2d 640, 646 n.24 (D.C. Cir. 1983) ("a Panel-imposed settlement, once adopted by the parties, should be regarded as part of a `collective bargaining agreement'").
We also reject the Agency's contention that the Union was required to file exceptions to the Panel arbitrator's award under section 7122(a) of the Statute. The Authority has held that exceptions may not be filed to a Panel-ordered interest arbitration award issued pursuant to section 7119(b)(1) of the Statute, such as the Panel arbitration award at issue here. U.S. Department of Defense Dependents Schools, Alexandria, Virginia and Overseas Education Association, 41 FLRA 982, 988 (1991). Therefore, the Agency's argument that the Union should have filed such exceptions is meritless.
The Arbitrator concluded that "[s]ince the salary provision at issue herein is a part of the collective bargaining agreement, the Union clearly has the right to determine its meaning and intent through the grievance procedure." Award at 18. Consistent with the foregoing, we find that the grievance was properly before the Arbitrator and that the award is not contrary to law. [n2]
C. The award is not based on a nonfact.
To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See 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). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
The Agency challenges the Arbitrator's finding that the Union sought a 10 percent increase for all employees before the Panel arbitrator. However, the record establishes that this matter was disputed before the Arbitrator. As the Arbitrator's specific factual finding resolved a matter disputed by the parties, the Agency's exception provides no basis upon which to find the award deficient as based on a nonfact.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 183 -
Article 26, Section 7 of the parties' agreement provides that, any "dispute over the application of an arbitrator's award shall be returned to the arbitrator for clarification" of the award. Award at 18.
Footnote # 2 for 55 FLRA No. 183 -
We note that the Arbitrator also rejected the Agency's contention that this dispute could only be adjudicated as an unfair labor practice, on the ground that section 7116(d) of the Statute permits claims that fall within both section 7116 and a grievance procedure to be raised as grievances. As there is no indication in the record that the Union claimed that the Agency's alleged misinterpretation of the interest arbitration decision was an unfair labor practice subject to section 7116, section 7116(d) does not apply.