73 FLRA No. 24                                                                                                                                                                

 

NATIONAL TREASURY

EMPLOYEES UNION

(Union)

 

and

 

FEDERAL COMMUNICATIONS COMMISSION

(Agency)

 

0‑AR‑5731

0-AR-5780

 

_____

 

DECISION

 

June 30, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and Susan Tsui Grundmann, Members

(Chairman DuBester concurring)

 

1. Statement of the Case

 

In this consolidated decision, we consider the Union’s exceptions to two awards with a shared factual predicate.[1]

 

During renegotiation of the parties’         collective-bargaining agreement, the Agency declared the parties at impasse and requested mediation.  When mediation failed, the Agency requested the assistance of the Federal Service Impasses Panel (the Panel).  The Union grieved the Agency’s insistence to impasse, claiming that no impasse existed and that the Agency had improperly insisted to impasse on permissive subjects of bargaining.  Arbitrator Barry E. Shapiro denied the grievance   (Shapiro award), and the Union filed exceptions.

 

Following issuance of the Panel’s order, the Agency sent the agreement with the Panel-imposed wording (the compiled agreement) to the Union for execution.  Citing its then-unresolved grievance before Arbitrator Shapiro, the Union refused to execute the compiled agreement.  The Agency grieved this refusal.  Arbitrator Daniel A. Silverman sustained the grievance (the Silverman award), finding that the Union failed to timely execute a completed agreement.  The Union filed exceptions to this award too. 

 

For the reasons that follow, we dismiss, in part, and deny, in part, the Union’s exceptions to the two awards.

 

1. Background and Arbitrators’ Awards

 

Before beginning negotiations on a          collective-bargaining agreement, the parties agreed to ground rules for the negotiations (the ground rules).  As relevant here, the ground rules provide that “if agreement is not reached after eight . . . weeks and the parties have exhausted all efforts to reach agreement,” then the parties will engage in mediation or impasse procedures “unless the [p]arties mutually agree to engage in additional bargaining.”[2]  

 

On May 7, 2020, after ten weeks of bargaining, the Agency sent the Union its last, best offer on seven outstanding proposals and declared the parties at impasse.  The Agency then requested the services of a mediator from the Federal Mediation and Conciliation Service.  Claiming no impasse existed, the Union objected to the mediation and asserted during mediation that the parties should continue bargaining without the assistance of a mediator.  When mediation failed to resolve the parties’ remaining disagreements, the Agency asked the mediator to release the parties. 

 

After the mediator released the parties, the Agency requested the Panel’s assistance.  The Panel asserted jurisdiction and directed the parties to resume mediation.  During this second mediation, the parties agreed on some of the outstanding proposals.  Subsequently, the Panel issued a decision and order resolving the remaining proposals.

 

While the Agency’s request for Panel-assistance was pending, the Union grieved the Agency’s declaration of impasse, claiming that the parties were not at impasse and that the Agency had improperly insisted to impasse on proposals concerning permissive subjects of bargaining.  When the parties were unable to resolve the grievance, the Union invoked arbitration.

 

1. The Shapiro Award

 

Arbitrator Shapiro framed the issues, as relevant here, as (1) whether the Agency violated the Federal Service Labor-Management Relations Statute  (the Statute) or the ground rules by declaring impasse on May 7, 2020, and (2) whether the Agency violated the ground rules by insisting to impasse on permissive subjects of bargaining. 

 

At arbitration, the Union referenced several Agency actions that allegedly demonstrated that the Agency had negotiated in bad faith.  Article 39 of the parties’ agreement provides that “[i]ssues not raised by the [p]arties during the grievance procedure may not be raised by either [p]arty or the arbitrator.”[3]  Applying Article 39, Arbitrator Shapiro determined that, while some of the Agency’s actions before May 7 “may inform a judgment about whether the [p]arties were actually at an impasse,”[4] the Union had not raised these actions in its grievance.  Thus, Arbitrator Shapiro found that the question of whether these individual actions constituted unfair labor practices was outside the scope of arbitration. 

 

                On the merits, Arbitrator Shapiro considered the “overall state of the bargaining at the time [the] impasse [wa]s declared,”[5] including such factors as the length of the negotiations, the number of proposals exchanged, the types of proposals discussed, and the parties’ conduct during bargaining.[6]  Noting that the parties’ ground rules permit either party to invoke mediation after eight weeks, Arbitrator Shapiro found that the Agency’s declaration of impasse on May 7 was not “premature or made in bad faith.”[7] 

 

                The Union also argued that the parties were not “deadlocked on all outstanding proposals” when the Agency requested that the mediator release the parties from the first mediation.[8]  Arbitrator Shapiro found that it was “impossible to know” whether further mediation could have been productive and refused to “engage in speculation” on the subject.[9]  However, Arbitrator Shapiro concluded that the Agency was “justified under the ground rules” in requesting that the mediator release the parties because the “failure of the mediation process to produce any meaningful advances was based largely” on the Union’s refusal to cooperate with the Agency or the mediator.[10]  Arbitrator Shapiro also determined that the Agency did not insist to impasse on any permissive topics.[11]

 

The Union filed exceptions to the Shapiro award on May 11, 2021, and the Agency filed an opposition on June 10, 2021.

 

1. The Silverman Award

 

While the Union’s grievance was pending before Arbitrator Shapiro, the Agency sent the Union the compiled agreement for execution.  Citing its active grievance, the Union refused to execute the agreement.  The Agency then grieved the Union’s refusal as a violation of the parties’ ground rules.  When the Union denied the grievance, the Agency invoked arbitration and the dispute proceeded to Arbitrator Silverman.

 

At arbitration, the parties stipulated to the following issues:  Whether the Union had breached a provision of the ground rules requiring the Union to execute completed agreements, and if so, what should be the remedy? 

 

The Union argued that it had not breached the ground rules, because the Agency’s bad-faith bargaining prevented the parties from completing negotiations.  Citing the doctrine of res judicata, Arbitrator Silverman adopted Arbitrator Shapiro’s finding that the parties had reached a genuine impasse.  And, as the parties had completed negotiations with the assistance of the Panel, Arbitrator Silverman concluded that the parties’ ground rules required the Union “to sign the proffered agreement within ten days of finalization of the agreement.”[12]

 

Soon after the Agency invoked arbitration, President Biden issued Executive Order 14003                   (the executive order) revoking several executive orders issued by President Trump.[13]  The executive order instructed “heads of agencies . . . [to] review and identify existing agency actions related to or arising from                th[e revoked executive] orders.”[14]  The executive order also stated that the “heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind . . . actions identified in the review.”[15]

 

Before Arbitrator Silverman, the Union argued that the executive order prohibited the parties from executing the compiled agreement until they renegotiated provisions affected by revocation of the Trump executive orders.  Arbitrator Silverman rejected this argument, finding that the executive order “is not a directive to . . . parties engaged in negotiations, but to [h]eads of [a]gencies to take certain actions.”[16]

 

As a remedy, Arbitrator Silverman directed the Union to execute the compiled agreement and stated that the compiled agreement “may be submitted to the [h]ead of the [a]gency for appropriate action pursuant to the [Statute] and [the executive order].”[17]

 

                The Union filed exceptions to the Silverman Award on December 3, 2021, and the Agency filed an opposition on January 18, 2022.

 

1. Preliminary Matter:  Sections 2425.4(c) and 2429.5 of the Authority’s Regulations bar one of the Union’s exceptions.

 

The Union argues that the Silverman award is contrary to public policy.  According to the Union, the executive order requires the Agency head to disapprove several provisions of the compiled agreement.  Under the parties’ ground rules, the Union argues that this disapproval will trigger a complete renegotiation of the agreement.[18]  And the Union contends that this will result in unnecessary expense that conflicts with the alleged public policy of an “efficient and effective government.”[19]

 

Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the arbitrator.[20]  Although the Union argued before Arbitrator Silverman that Agency-head review of the compiled agreement was unlawful,[21] nothing in the record indicates that the Union raised the cost of disapproval as an argument against submitting the agreement to     Agency-head review.  Thus, we do not consider this exception.[22]

 

1. Analysis and Conclusions

 

1. The Union does not demonstrate that the Shapiro award is deficient.

    

   1. The Shapiro award is not based on a nonfact.

 

The Union argues that the Shapiro award is based on a nonfact.[23]  To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.[24] 

 

The Union challenges Arbitrator Shapiro’s assertion that it was “impossible to know” whether the parties could have made more substantive progress in the first mediation.[25]  Given the parties’ progress in the second mediation, the Union argues that the Arbitrator could have found that the parties had potential for further productive discussions during the first mediation and, thus, were not at impasse.[26] 

 

Regarding the first meditation, Arbitrator Shapiro found that the “failure of the mediation process to produce any meaningful advances was based largely” on the Union’s refusal to cooperate.[27]  The Union’s cooperation in subsequent, Panel‑imposed mediation does not retroactively affect whether an impasse existed prior to the Agency invoking the Panel’s assistance.  Thus, the Union has not established that the Arbitrator’s refusal to “engage in speculation” about possible grounds for agreement was clearly erroneous or central to the award.[28]  Consequently, we deny this exception.[29]

1. The Union’s exception arguing that the Agency engaged in “take it or leave it” bargaining mischaracterizes the award.

    

The Union asserts that Arbitrator Shapiro’s failure to find that the Agency’s conduct during the first mediation evidenced bad-faith bargaining is contrary to Authority precedent.  According to the Union, Arbitrator Shapiro “conclude[d] that the Agency was entitled to present its . . . proposals on a ‘take it or leave it’ basis and terminate mediation without engaging in any bargaining.”[30]  However, Arbitrator Shapiro concluded that the “failure of the mediation process to produce any meaningful advances was based largely on the Union’s unwillingness [to] present its questions about the Agency’s . . . [proposals] to the Agency;” the Union’s refusal to identify proposals that it would accept; and the Union’s insistence on returning to direct bargaining without mediation.[31]  Based on these findings, the Arbitrator concluded that the Agency was “justified” in requesting release from the mediation.[32]  Thus, contrary to the Union’s assertion, the Arbitrator did not find that the Agency was entitled to terminate mediation without engaging in any bargaining. 

 

Because the Union’s exception relies on a mischaracterization of the award, it does not provide grounds for finding the award deficient.[33]

 

                Accordingly, we deny this exception.

 

1. The Union does not establish that Arbitrator Shapiro’s finding of impasse is contrary to Authority precedent.

 

The Union argues that the award is contrary to law because Arbitrator Shapiro failed to consider whether the Agency acted in bad faith before May 7.[34]  Absent a successful nonfact exception, challenges to an arbitrator’s evaluation of the evidence, including the weight to be accorded such evidence, do not establish that an award is contrary to law.[35]

 

Arbitrator Shapiro made extensive factual findings related to the parties’ conduct over the full ten weeks of negotiations before the Agency declared impasse.[36]  Concerning the Union’s allegations of              bad-faith bargaining before May 7, Arbitrator Shapiro noted that those earlier Agency actions “may inform a judgment about whether the [p]arties were actually at an impasse.”[37]  To the extent that the Union raised these Agency actions as separate unfair labor practices, the Arbitrator found that they were outside the scope of arbitration because the Union did not raise these claims in its grievance.[38]  The Union does not cite any authority that required the Arbitrator to consider Agency conduct that the Union failed to challenge in its grievance.  In any event, the Arbitrator addressed the Agency’s pre-May-7 conduct in assessing whether the parties had reached impasse.[39]  The Union’s argument—that Arbitrator Shapiro should have found these actions demonstrated that no impasse existed—challenges the Arbitrator’s evaluation of the evidence presented at arbitration.  Thus, we deny this exception.[40]

 

The Union also argues that the award is contrary to law because Arbitrator Shapiro’s finding of impasse differed from past arbitral and Authority decisions.[41]  Arbitrator Shapiro conducted a factual inquiry into the entire course of the parties’ bargaining, including the number of proposals exchanged, the subject areas discussed, the scope of the remaining disagreements, and the parties’ conduct.[42]  The Union challenges this analysis by citing cases where arbitrators and administrative law judges found, under distinguishable circumstances, that an impasse existed.[43]  Merely identifying cases in which arbitrators or judges found that other parties were not at impasse does not establish that Arbitrator Shapiro erred as a matter of law in finding that these parties were at impasse.  Moreover, the Union’s exceptions challenge the Arbitrator’s weighing of the evidence.  Thus, these exceptions do not provide a basis for finding the award deficient.[44]

 

1. Arbitrator Shapiro did not find that the ground rules contained a waiver of the Union’s right to bargain until impasse.

 

Characterizing the award as stating that either party could declare impasse after eight weeks of bargaining—regardless of whether an actual impasse existed—the Union argues that the award is contrary to law because the parties’ ground rules did not contain an explicit waiver of the Union’s right to bargain until impasse.[45]  According to the Union, Arbitrator Shapiro’s finding that the Agency could declare impasse after eight weeks was tantamount to concluding that the Union waived its right under § 7114 of the Statute to meet “as frequently as may be necessary” until agreement or impasse.[46] 

 

                Here, Arbitrator Shapiro found that the parties “were obligated under the ground rules to engage in bargaining for eight weeks . . . before any consideration of impasse could be raised.”[47]  As the parties had negotiated for ten weeks, the Arbitrator found that the ground rules permitted the Agency to declare impasse if the parties were unable to resolve their remaining disputes.[48]  After evaluating the course of bargaining, the Arbitrator then determined that the Agency’s declaration of impasse was not “premature or made in bad faith.”[49]  Thus, contrary to the Union’s assertion, the Arbitrator did not find that the ground rules contained a waiver of the Union’s right to bargain until impasse.  Instead, the Arbitrator found that the parties had bargained for the minimum amount of time necessary under the ground rules and, separately, that the parties had reached impasse.[50]  Because the Union’s exception mischaracterizes the award, it fails to provide grounds for finding the award deficient.[51]

 

                Based on the above, we deny this exception.

 

1. The Agency did not insist to impasse over a permissive subject of bargaining.

 

The Union argues that the award is contrary to law because Arbitrator Shapiro failed to find that the Agency’s telework proposal was a permissive subject of bargaining.[52]  Bargaining proposals that require a party to waive a statutory right are permissive.[53]  According to the Union, the proposal constitutes a waiver of the Union’s statutory right to bargain over changes to the telework policy because the proposal gives the Agency the discretion to unilaterally change telework guidelines.[54]  However, the Authority has held that language in an agreement does not constitute a waiver of bargaining rights if the language does nothing more than permit a party to “act unilaterally.”[55]  Moreover, giving an agency the right to act unilaterally with regard to a mandatory subject of bargaining does not convert that mandatory subject to a permissive one.[56]

 

Here, the Union does not dispute that telework is a mandatory subject of bargaining.[57]  The Agency’s proposal states that various subdivisions of the Agency “may establish general guidelines for all employees” concerning the telework policy and set “other general expectations for all teleworkers.”[58]  In other words, the proposal gives the Agency discretion to act unilaterally in managing the scope and operation of the telework policy.  Consistent with the above principles, Arbitrator Shapiro correctly found that the proposal was not permissive.[59]

 

Accordingly, we deny this exception.

 

1. The Union does not demonstrate that the Silverman award is deficient.

    

   1. The Union’s nonfact exceptions do not establish that the Silverman

      award is deficient.

 

The Union argues that the Silverman award is based on two nonfacts.[60]  

 

In the first nonfact exception, the Union argues that Arbitrator Silverman relied on a clearly erroneous fact to find that the Union violated the ground rules.[61]  During the parties’ ground‑rules negotiations, the Agency proposed a ten‑day deadline for the Union to execute a completed agreement.[62]  The Union rejected this proposal, and the final wording of the ground rules provides that the “Union will complete the ratification process within [thirty] days of the execution date of an agreement.”[63]  Relying on the rejected proposal—rather than the relevant provision of the parties’ ground rules—Arbitrator Silverman found that “the Union was required to sign the proffered agreement within ten days of finalization of the agreement.”[64]  It is undisputed that Arbitrator Silverman erred in this regard.[65]  Even so, the Union failed to execute the agreement before the thirty-day deadline that the parties agree the Arbitrator should have applied.[66]  Thus, the Union has not established that the result would have been different if the Arbitrator had properly applied the ground-rules agreement.  Consequently, we deny this exception.[67]

 

                The Union also argues that Arbitrator Silverman misinterpreted the Shapiro award and the Panel decision.[68]  According to the Union, Arbitrator Shapiro and the Panel both found that the parties were at impasse, and Arbitrator Silverman then improperly expanded that finding to establish that the Agency did not engage in any bad‑faith bargaining before declaring impasse.[69] 

 

However, this argument mischaracterizes the Silverman award.  Arbitrator Silverman concluded that the relevant question for assessing the Union’s alleged violation of the ground rules was whether the parties were at an impasse.  Thus, just like Arbitrator Shapiro, Arbitrator Silverman did not even consider the Union’s unfair‑labor‑practice allegations against the Agency.[70]  As Arbitrator Silverman did not improperly expand the findings of either Arbitrator Shapiro or the Panel as the Union alleges, the Union’s exception fails to establish that the award relied on a nonfact.  Therefore, we deny this exception.[71]

 

1. The Union does not demonstrate that Arbitrator Silverman’s application of          res judicata to preclude the Union from relitigating he issue of impasse was deficient.

 

The Union argues that Arbitrator Silverman improperly applied the doctrine of res judicata to Arbitrator Shapiro’s, and the Panel’s, finding of impasse.[72]  In the Union’s view, because arbitral awards are not binding on future arbitrators without agreement of the parties, res judicata does not apply to such awards.[73]

 

The Authority has held that arbitrators have discretion to give preclusive effect to other arbitrators’ awards.[74]  The Authority normally defers to those determinations “because the arbitrator is ‘making determinations that constitute factual findings and reasoning.’”[75]  Even an arbitrator’s mistaken belief concerning the preclusive effect of an earlier award does not provide a basis for finding an award deficient.[76]  As Arbitrator Silverman had discretion to give preclusive effect to the Shapiro award, the Silverman award is not contrary to law.  Thus, we deny this exception.[77]

 

The Union also argues that Arbitrator Silverman did not comply with the Authority’s holding in                   U.S. Department of the Air Force, Scott Air Force Base, Illinois (Scott AFB)[78] concerning when the Authority will give preclusive effect to a prior Authority decision.[79]  In Scott AFB, the Authority adopted the requirements that courts use when applying the doctrine of res judicata to prior judicial decisions.[80]  Arbitration awards generally do not bind future arbitrators, so an arbitrator who decides to give a prior arbitration award preclusive effect is not obligated to do so in the same manner that a court or the Authority would decide a similar issue.[81] 

 

                Here, the Union argues that the award is contrary to Scott AFB because (1) the Shapiro award was not final;[82] (2) the Shapiro award concerned different issues from those before Arbitrator Silverman;[83] and (3) the Panel’s decision concerned different issues from those before Arbitrator Silverman.[84]  However, Scott AFB does not apply to Arbitrator Silverman’s determination to give preclusive effect to the impasse finding in the Shapiro award.[85]  Thus, these arguments do not provide grounds for finding the award deficient, and we deny these exceptions.[86]

 

 

1. The Union does not establish that either the executive order or the Statute requires the parties to reopen negotiations before Agency‑head review.

 

The Union argues that the award is contrary to law because the executive order required the parties to return to the bargaining table to renegotiate three provisions of the compiled agreement.[87]  According to the Union, Authority precedent prevents parties from submitting incomplete agreements for agency‑head review.[88]  The Union also argues that the award impermissibly directs the Agency to submit an agreement to Agency-head review that “contains provisions [that] violate [the executive order].”[89] 

 

The executive order instructs heads of agencies to review existing agency actions that relied on the revoked executive orders and, “as soon as practicable, [to] suspend, revise, or rescind” those actions.[90]  Arbitrator Silverman found that the executive order “is not a directive to . . . parties engaged in negotiations, but to [h]eads of [a]gencies.”[91]  Thus, rather than directing the parties to return to the negotiation table before Agency‑head review, Arbitrator Silverman stated that the “contract may be submitted to the [h]ead of the Agency for appropriate action pursuant to the [Statute] and the                       [executive order].”[92] 

 

As both the Statute and the executive order instruct heads of agencies to review agreements for consistency with law and government-wide regulations,[93] the Union fails to establish that Arbitrator Silverman’s direction to submit the compiled agreement for review violates either the Statute or the plain wording of the executive order.

 

Consequently, we deny this exception.[94]

 

1. Decision

 

                We dismiss, in part, and deny, in part, the Union’s exceptions.

 

 

Chairman DuBester, concurring:

 

                I agree that the Union’s exceptions are properly denied.  However, I write separately to note that the Union did not allege that either Arbitrator Shapiro or Arbitrator Silverman exceeded their authority by failing to decide whether the Agency’s actions preceding its declaration of impasse constituted bad-faith bargaining.  Therefore, the Authority is constrained from addressing that question in today’s decision.*