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56 FLRA No. 178
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3137
DEPARTMENT OF AGRICULTURE
U.S. FOREST SERVICE
ALBUQUERQUE, NEW MEXICO
DECISION AND ORDER
December 27, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Agency did not file an opposition to the General Counsel's exceptions.
The complaint alleges that the Respondent violated section 7116(b)(5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with Article 13, Section E of the parties' collective bargaining agreement by refusing to pay its share of arbitration expenses for a grievance involving a unit employee. Article 13, Section E of the parties' agreement provides that "[t]he arbitrator's fee and the expenses of the arbitration, if any, shall be borne equally by [M]anagement and the Union." G.C.'s Exh. 2; Judge's Decision at 4.
At the hearing, the General Counsel argued that the Respondent's actions constituted a repudiation of Article 13, Section E. The Judge, however, found that the Respondent did not repudiate this provision of the parties' collective agreement because, in his view, its actions were consistent with a reasonable interpretation of a side agreement entered into by the Arbitrator, the Union and the grievant. [n1] The Judge, therefore, recommended that the complaint be dismissed. Upon consideration of the Judge's decision, the General Counsel's exceptions, and the entire record, we adopt the Judge's findings, conclusions and recommended Order. [n2]
The complaint is dismissed.
File 1: Authority's Decision in 56 FLRA No.
File 2: ALJ's Decision
Footnote # 1 for 56 FLRA No. 178 - Authority's Decision
Footnote # 2 for 56 FLRA No. 178 - Authority's Decision
In reaching this result, we specifically note the General Counsel's reliance on the First Restatement of Contracts, § 133, as a basis for challenging the Judge's decision. We question whether the General Counsel raised this issue in the proceedings below and, therefore, whether it is properly before us. See 5 C.F.R. § 2429.5 (Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge"); Federal Aviation Admin., 55 FLRA 1271, 1274 (2000) (dismissing argument not presented to the judge). However, if the contract principles set forth in the First Restatement of Contracts were to be addressed, we would conclude that they fail to establish that the Respondent's actions constituted a clear and patent breach of the terms of the parties' collective bargaining agreement. See Dep't of the Air Force, 375th Mission Support Squadron, Scott AFB, Illinois, 51 FLRA 858, 862 (1996).