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42:0212(16)AR
The decision of the Authority follows:
42 FLRA No. 16
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Donald H. Wollett 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 Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The parties entered into a settlement agreement to resolve a grievance that had been filed by the Union and submitted to arbitration. When the Union disputed the Agency's actions in implementing the settlement agreement, the parties submitted the issue of whether the Agency had breached the agreement to arbitration. The Arbitrator concluded that the Agency had not breached the agreement.
We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On February 24, 1988, the Union filed a grievance alleging that employees hired under Veterans Readjustment Act (VRA) appointments were wrongfully furloughed and were improperly rehired as temporaries at a lower grade level. As relief, the Union requested that all VRA appointees be converted to permanent career status with backpay and benefits. The grievance was not resolved and was submitted to arbitration. Before the date of the arbitration hearing, the parties entered into a settlement agreement.(*)
Thereafter, a number of employees submitted claims for reimbursement "under the terms of the settlement agreement, dated 8 May, 1990, and pursuant to 5 USC 5596." Award at 7 (quoting claims). Some of the claims involved substantial amounts of backpay. Pursuant to paragraphs one and two of the settlement agreement, the Agency also received submissions from the affected employees documenting their claims for amended service computation dates, and the Agency adjusted those dates. As a result, the claimants were entitled to within-grade step increases, and the Agency paid the increases to the affected employees. The Agency took the position that the actions on the within-grade increases constituted compliance with the settlement agreement and denied the backpay claims. The Union took the position that the refusal to honor the backpay claims constituted a breach of the settlement agreement. The matter was not resolved and was submitted to arbitration on the stipulated issue of whether the Agency breached the settlement agreement by failing to pay specified claims of backpay.
Before the Arbitrator, the Agency maintained that it had complied fully with the settlement agreement, that the underlying grievance had been withdrawn, and that the subject matter of the grievance had been forever waived. The Union maintained that the Agency breached the settlement agreement by failing to award full backpay to the claimants under the Back Pay Act, 5 U.S.C. § 5596, including overtime, leave, and attorney fees. The Union argued that the phrase "consistent with 5 USC 5596 or other applicable law or regulation" in the settlement agreement meant that payment of the step increases had no effect on the backpay claims of the employees for the wrongful furlough.
The Arbitrator rejected the Union's argument. He found that the Agency had made backpay payments to the claimants based on calculations of lost pay, measured by adjusted service computation dates, "predicated on the assumption that each claimant had had at least six months annual employment." Id. at 13. The Arbitrator concluded that these actions were "all that it promised to do." Id. at 14. He noted that the Agency was obligated to act "consistent with 5 USC 5596 or other applicable law or regulation." Id. (quoting the settlement agreement). In the Arbitrator's view, "it did that." Id. The Arbitrator refused to find that the reference to the Back Pay Act mandated the Agency to honor generally the claims for backpay of the original grievance. He found that such a view of the agreement "would make it virtually meaningless." Id. at 15.
The Arbitrator also found that the Union's argument was inconsistent with the provisions of the settlement agreement. He concluded that the Union's view was inconsistent with the heading of "No Fault" and the third paragraph, which provides that the Agency neither admitted nor believed that it was guilty of any improper activity. The Arbitrator further concluded that the Agency's compliance with the settlement agreement foreclosed the Union from reviving the general backpay claims of the original grievance because the Union had agreed to withdraw the arbitration of the original grievance and to "forever waive" any "additional claims" in connection with the grievance. Id.
Accordingly, as his award, the Arbitrator found that the Agency had not breached the settlement agreement and he dismissed the grievances.
III. Positions of the Parties
A. The Union
The Union contends that the award is deficient because the Arbitrator exceeded his authority by resolving the furlough issue of the original grievance and failing to resolve the submitted issue of whether the Agency breached the settlement agreement. The Union claims that this is evident from the Arbitrator's statement that the Agency's implementation of the settlement agreement was "predicated on the assumption that each employee had at least six months of annual employment." Exceptions at 11 (quoting Award at 13). The Union maintains that this statement relates to the furlough and not to the submitted issue of the breach of the settlement agreement. The Union contends that "it was unfair and contrary to the notions of due process for the Arbitrator to merge the two distinct issues for purpose of a single decision." Id. at 12. The Union alleges that the Arbitrator reached his conclusion without giving the Union the opportunity to present evidence or cross examine Agency witnesses on the furlough issue and that his conclusion on the furlough issue is not supported by any evidence.
The Union also contends that the award is deficient because the Arbitrator failed to resolve the credibility issues presented by conflicting testimony. The Union similarly contends that the award is deficient because the Arbitrator failed to discuss the authority of the Agency to grant backpay under the Back Pay Act and failed to address the Agency's use of 5 U.S.C. § 6303, instead of 5 U.S.C. § 5596, in implementing the settlement agreement. The Union claims that the award is deficient for failing to address these issues because the Merit Systems Protection Board has consistently held that the administrative judge's decision must identify and resolve all material issues, including issues of credibility.
B. The Agency
The Agency contends that the award is not deficient and that the Union is merely disagreeing with the Arbitrator's interpretation and application of the settlement agreement and attempting to relitigate the matter before the Authority.
The Agency argues that the Arbitrator clearly resolved the submitted issue and that the award does not embrace the furlough issue of the original grievance. The Agency maintains that the Union has misconstrued the Arbitrator's statement quoted in its exceptions. The Agency argues that the statement does not constitute a resolution by the Arbitrator of the furlough issue. The Agency maintains that, instead, the statement merely recognizes the Agency's basis for computing the claims for step increases, and the Arbitrator only used the information to determine whether the Agency's actions complied with the settlement agreement. The Agency also argues that the Arbitrator did not deny the Union a fair hearing by not providing the Union an opportunity to present evidence and cross examine witnesses on the furlough issue. The Agency repeats its assertion that the Arbitrator did not address the furlough issue and claims that, consequently, there was no reason to provide the Union with this opportunity.
The Agency also argues that the Union's contention that the award is deficient because the Arbitrator failed to address certain issues provides no basis for finding the award deficient. The Agency maintains that the Union's contention concerning credibility constitutes nothing more than disagreement with the Arbitrator's evaluation of evidence and testimony. The Agency also asserts that the Union's contention concerning 5 U.S.C. § 6303 constitutes nothing more than disagreement with the Arbitrator's findings. The Agency further argues that because the Arbitrator found that the Agency complied with the settlement agreement, the question of whether the Agency had the authority to grant backpay was irrelevant and immaterial. The Agency also asserts that merely because the Arbitrator did not specifically mention this issue does not mean he did not consider it as the Arbitrator was under no obligation to specify the matters that he had considered in reaching the award.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute.
In accordance with the submitted issue, the Arbitrator interpreted the parties' settlement agreement and concluded that the Agency had not breached the agreement. In our view, the Union's exceptions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the settlement agreement and an attempt to relitigate before the Authority the issue of whether the Agency breached the agreement. As such, the exceptions provide no basis for finding the award deficient. See, for example, National Treasury Employees Union, Chapter 243 and United States Department of Commerce, United States Patent and Trademark Office, Arlington, Virginia, 37 FLRA 470, 475 (1990) (exceptions constituted mere disagreement with the arbitrator's interpretation of the settlement agreement and the collective bargaining agreement and with the arbitrator's conclusions and constituted an attempt to relitigate the issue before the Authority of whether the agency complied with the settlement agreement; as such, the exceptions provided no basis for finding the award deficient).
We reject the Union's contention that the Arbitrator failed to resolve the issue submitted and resolved an issue that was not submitted. In our view, the award is directly responsive and properly confined to the issue as submitted by the parties. See, for example, U.S. Department of the Air Force, Altus Air Force Base, Oklahoma and American Federation of Government Employees, Local 2586, 41 FLRA 256, 258 (1991). We agree with the Agency that the Arbitrator's statement concerning 6 months annual employment was merely an acknowledgement by the Arbitrator of the basis for the Agency's implementation of the settlement agreement and not, as contended by the Union, a reconstruction by the Arbitrator of the disputed furlough.
As the Arbitrator properly confined the award to the settlement agreement issue that was submitted by the parties, no basis is provided for finding the award deficient because the Union was not given the opportunity to address the furlough issue contained in the original grievance. The fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. For example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 540 (1991). We agree with the Agency that, in view of the submitted issue, evidence and testimony on the furlough was neither pertinent nor material and that the denial of an opportunity to address the issue does not show that the Arbitrator failed to conduct a fair hearing. See id. at 540-41. Furthermore, nothing in the award, or the record as a whole, shows that, in resolving the stipulated issue, the Arbitrator was required to address or resolve allegations that the Agency improperly relied on 5 U.S.C. § 6303 or that the Agency had the authority to grant the grievants' full backpay claims. See id. at 542.
We also reject the Union's contention that the award is deficient because the Arbitrator failed to resolve the credibility issues presented. An arbitrator's failure to set forth specific credibility findings does not provide a basis for finding an award deficient. See U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1049 (1991). Furthermore, we reject the Union's assertion that the Arbitrator was obligated to set forth specific findings or a rationale more extensive than he did to support the award denying the grievance. See National Association of Government Employees, Local R5-66 and U.S. Department of Veterans Affairs Medical Center, Memphis, Tennessee, 40 FLRA 504, 509-10 (1991) (and cases cited in the decision).
Accordingly, we will deny the exceptions.
V. Decision
The Union's exceptions are denied.
The parties, Tooele Army Depot and the Union, AFGE Local 2185, hereby agree to the following:
First, the Agency agrees to allow those employees, named in this paragraph, to submit relevant documentation to support their claim for an amended service computation date within thirty days of the date of the last signature on this agreement. The affected employees are: Kelly Bolander, Christopher Stafford, Larry P. Sutton, Roger Robinson, Steven A. Andersen, George O. Lewis, Kenneth Williams, Harry E. Keysaw, Thomas G. Wood, Larry T. Martinez, Joe Santistevan, William Davis, John Bemis.
Second, the Agency agrees to provide an adjustment of the service computation date on an individual basis determined by the actual loss incurred by each individual consistent with 5 USC 5596 or other applicable law or regulation. The Agency will determine entitlement to any within step grade increases, if any, by existing regulations. The Agency will complete the necessary adjustments to the individual records within thirty (30) days after the date of the last signature on this agreement.
Third, the Agency's decision to enter into this no fault settlement agreement is not based on an admission or belief that it has violated the law or otherwise engaged in improper activity. The Agency agrees to continue to honor the protections afforded to veterans as set forth in the Veterans Preference Act (5 USC 1302(c) and in other statutory authority. The Agency will not condone any acts of reprisal as the result of the veteran status or as the result of the filing of this complaint.
Fourth, the AFGE Union (Local 2185) and its other entities and the grievants identified above and represented by the Union agree to withdraw the pending arbitration (No. 33-85) [No. 33-88] regarding veteran discrimination and to forever waive any additional claims of backpay, salary, attorney fees, and other financial claims resulting from this action.
Fifth, the parties reserve the right to enforce this agreement in the event of a breach by either party. Mere disagreement regarding the amount of entitlement does not constitute a breach of this agreement. The parties agree that the thirty day time limits may be extended with mutual consent of the parties on a case by case basis.
FOOTNOTES:
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have footnotes.)
*/ The settlement agreement is set forth in the Appendix to this decision.