[ v60 p869 ]
60 FLRA No. 161
UNITED STATES
DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
ARLINGTON, VIRGINIA
(Agency)
and
PATENT OFFICE
PROFESSIONAL ASSOCIATION
(Union)
0-AR-3801
_____
DECISION
April 22, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John C. Truesdale filed by the Agency under § 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 Agency has also filed a motion for leave to supplement its exceptions.
The Union filed an opposition to the motion. On March 14, 2005, the Union filed a motion for an expedited decision. [n2]
The Arbitrator found that the parties have a term collective bargaining agreement and that the Agency repudiated the agreement. For the reasons that follow, we deny or dismiss the Agency's exceptions. We also deny the Agency's motion to supplement its exceptions.
II. Background and Arbitrator's Award
A. Background
The issue in this case pertains to whether the Patent and Trademark Office (PTO or the Agency) and the Patent Office Professional Association (POPA or the Union) have a term collective bargaining agreement. The background to this question is extensive and has been the subject of much litigation, as specified below. [n3]
1. PTO/POPA I and PTO/POPA II
In 1985, the parties invoked the assistance of the Federal Service Impasses Panel (FSIP) to resolve their impasse in the negotiation of a successor term collective bargaining agreement. The FSIP directed the parties to submit their dispute to interest arbitrator Marvin Johnson. See PTO/POPA I, 28 FLRA at 3. Arbitrator Johnson resolved the dispute in an award issued in several parts. The first part was issued on April 29, 1986, and the final part on June 6, 1986.
Under § 7114(c) of the Statute, the Agency disapproved three provisions (Article 14, Section 1, and Article 15, Sections 5(B) and 5(C)) of the April 29 award. See id. at 4. Subsequently, the Agency disapproved fifteen provisions of the June 6 award under § 7114(c). See PTO/POPA II, 28 FLRA at 7. The Union filed two negotiability appeals with the Authority challenging the Agency's disapprovals. [ v60 p870 ]
The Authority dismissed both appeals. See PTO/POPA I, 28 FLRA FLRA at 5; PTO/POPA II, 28 FLRA at 9. Relying on its decision in Dep't of Def. Dependents Sch. (Alexandria, Va.), 27 FLRA 586 (1987) (DODDS), the Authority ruled that an agency head is not empowered to review contract provisions ordered to be included in a collective bargaining agreement by an interest arbitrator. See PTO/POPA I, 28 FLRA at 5; PTO/POPA II, 28 FLRA at 9. The Agency appealed the Authority's decisions to the U.S. Court of Appeals for the Fourth Circuit.
While the Agency's appeal was pending, the Fourth Circuit denied enforcement of the Authority's decision in DODDS. See DODDS v. FLRA, 852 F.2d 779 (4th Cir. 1988); see also Dep't of Def. v. FLRA, 879 F.2d 1220 (4th Cir. 1989). Subsequently, the Fourth Circuit also granted the Agency's motion for summary reversal and remand of the Authority's decisions in PTO/POPA I and PTO/POPA II. See FLRA I.
2. PTO/POPA III
On remand of PTO/POPA I and PTO/POPA II, the Authority held that when an impasse is submitted to the FSIP under § 7119(b)(1) of the Statute, any resulting interest arbitration award is subject to agency-head review under § 7114(c) of the Statute. See PTO/POPA III, 41 FLRA at 799. The Authority determined that the interest arbitration award in PTO/POPA I and PTO/POPA II arose under § 7119(b)(1). Accordingly, the Authority concluded that the award was subject to agency-head review and proceeded to resolve the negotiability appeals.
The Authority ruled that ten of the contract provisions and a portion of another provision were within the duty to bargain and ordered the Agency to rescind its disapproval of these provisions. The Authority dismissed the petitions for review as they pertained to the remaining provisions. See PTO/POPA III, 41 FLRA at 849. In addition, the Authority noted that the entire agreement, not just a portion of it, is subject to agency-head approval under § 7114(c). Thus, the Authority advised that when an agency head timely disapproves an agreement under § 7114(c), "the agreement does not take effect and is not binding on the parties." See id. at 802. However, the Authority acknowledged that the parties may agree to implement portions of an agreement not disapproved by the agency head. See id. The actions of the parties as to the matters not disapproved were the subject of the dispute before the Arbitrator in this case.
3. PTO/POPA IV; FLRA II
In 1991, the Union proposed bargaining over pay-related matters independent of any management-proposed change in conditions of employment. The Authority held that the Agency violated the Statute by refusing to bargain concerning pay matters as requested by the Union under the mid-term bargaining provisions of the parties' collective bargaining agreement. See PTO/POPA IV. On appeal, the Fourth Circuit, in a decision which accepted the representations of the parties that they had a collective bargaining agreement, held that the Agency had no obligation to bargain over union-initiated, mid-term proposals. See FLRA II.
4. PTO/POPA V
In January 1988, the Union submitted proposals to the Agency pertaining to performance appraisal, and the Agency responded that it would not bargain over most of the proposals. See PTO/POPA V, 47 FLRA at 14. The Union then filed an unfair labor practice charge alleging that the Agency had unlawfully refused to bargain. That charge was dismissed as untimely.
Subsequently, in September 1989, the Union submitted the matter to Arbitrator Johnson, who had withheld action on the subject of performance appraisal in his 1986 awards. See FLRA III, 26 F.3d at 1149. Arbitrator Johnson held a hearing to address the matter. After the first day of hearings, the Agency refused to participate on the basis that Arbitrator Johnson lacked jurisdiction. In November 1990, Arbitrator Johnson issued an interest arbitration award on the subject of performance appraisals. The Agency disapproved, under § 7114(c), the contract provisions imposed by Arbitrator Johnson, and the Union filed a negotiability appeal with the Authority. See PTO/POPA V, 47 FLRA at 10, 15.
The Authority rejected the Agency's argument that the interest arbitration award should be set aside on the ground that Arbitrator Johnson exceeded his authority by considering new proposals offered by the Union after the Authority's negotiability determinations in PTO/POPA I and PTO/POPA II. See id. at 18. On the merits of the negotiability issues, the Authority dismissed the petition for review as it pertained to four provisions imposed by Arbitrator Johnson and parts of two others. Otherwise, the Authority found the provisions imposed by Arbitrator Johnson to be within the duty to bargain and ordered the Agency to rescind its disapproval as to those provisions. See id. at 94. [ v60 p871 ]
5. FLRA III
Both parties appealed the Authority's decision in PTO/POPA V to the U.S. Court of Appeals for the D.C. Circuit. The court first ruled that Arbitrator Johnson lacked jurisdiction over the disputed provisions as to which the parties had never negotiated because there was no impasse. See FLRA III, 26 F.3d at 1153-54. At the same time, the court held that seven of the disputed provisions were properly before Arbitrator Johnson because the parties had negotiated to impasse over these provisions. The court reversed the Authority's decision to the extent that the Authority had found six of these provisions to be within the duty to bargain. See id. at 1154-57.
6. PTO/POPA VI
After the court's decision, the parties resumed negotiations, but were unable to reach an agreement. See PTO/POPA VI, 57 FLRA at 186. In September 1994, the Union requested the Agency to adopt those provisions imposed by Arbitrator Johnson in 1990, which the court had determined were properly before him and which the court and the Authority had determined were within the duty to bargain. See id. The Agency did not formally respond to the request. The Union filed an unfair labor practice charge, alleging that the Agency violated the Statute by failing to execute and implement an agreement as to these provisions. However, the Authority's regional director refused to issue a complaint.
The regional director determined on the basis of correspondence of the parties that the Agency had no obligation to adopt the disputed proposals "because the parties did not have a collective bargaining agreement." Id. at 200. The Union appealed this determination to the General Counsel, but the General Counsel denied the appeal. However, the General Counsel found it unnecessary to reach the issue of the existence of a collective bargaining agreement. See id.
In January 1998, the Agency notified the Union that the Agency proposed to change the existing practice used to exercise its right to establish performance appraisal systems. In response, the Union presented the Agency with the provisions that the Authority and the D.C. Circuit had found to be within the duty to bargain in PTO/POPA V and FLRA III. The Agency refused to bargain over anything other than the change that it had proposed in January.
In April 1998, the Agency notified the Union that it was withdrawing the January 1998 notice and no longer proposed to change existing practices. The Union responded that it still wished to bargain over the subject of performance appraisal and submitted another copy of its proposals. When the Agency did not respond to the bargaining request, the Union filed an unfair labor practice charge. The General Counsel issued a complaint alleging that the Agency violated the Statute by not responding to the Union and by refusing to bargain over the subject of performance appraisal.
Before the administrative law judge, the General Counsel and the Union alleged that the Agency violated the Statute regardless of whether the parties have a term collective bargaining agreement. In addition, the Union claimed that the parties evidenced an intent to be bound by a term agreement that provides for mid-term bargaining. The Union maintained that although Arbitrator Johnson's interest arbitration award was not reduced to a document that contains the signature of both parties, Arbitrator Johnson's interest arbitration award "matured into a binding agreement between the parties as a result of their actions." PTO/POPA VI, 57 FLRA at 202. In response, the Agency contended that there is no obligation to bargain mid-term under the terms of an agreement that was disapproved because there is no existing agreement in such circumstances. See id.
The administrative law judge determined that the Agency violated the Statute, as alleged. He held that the Union's bargaining request required a response and negotiations pursuant to the Statute. In addition, the judge ruled that "[t]o the extent that a determination of whether a collective bargaining agreement exists is relevant, . . . the parties do not have a collective bargaining agreement." Id. at 203-04.
Both the Agency and the Union filed exceptions to the judge's decision with the Authority. The Authority denied the exceptions and adopted the judge's findings and conclusions. See id. at 185. Although the judge found a violation of the Statute, the Union's exception asserted "that the Judge erred in determining that a term agreement does not exist." Id. at 192. In denying this exception, the Authority stated that "the Judge did not err in finding that the parties do not have a collective bargaining agreement." Id. at 193.
7. FLRA IV
The Union appealed the Authority's denial of its exception to the D.C. Circuit. The Union claimed that the Authority erred in concluding that there was no comprehensive collective bargaining agreement in existence between the Union and the Agency. The court dismissed the appeal because the Union had not been aggrieved by the Authority's order. See FLRA IV. The [ v60 p872 ] court concluded that the Authority's finding that there was no collective bargaining agreement in existence between the Agency and the Union was "pure dicta, entirely unnecessary for the FLRA's resolution of the union's ULP charges." 37 Fed.Appx. at 541. The court emphasized that "the FLRA has issued no dispositive judgment on the existence or nonexistence of a CBA[.]" Id. at 542 (emphasis in original). More specifically, the court ruled, as follows:
It is therefore clear that, if the question of the existence of an agreement between the parties should arise in the future, the FLRA's statements in this case will have no binding effect whatsoever. This issue as to whether the parties are covered by a comprehensive CBA remains an open issue.
Id.
B. Arbitrator's Award
In terms of the background to the grievance and award in this case, in April 2002, the Agency submitted proposals on ground rules to the Union. The proposals primarily dealt with scheduling and were intended by the Agency to apply to all substantive bargaining outside of a term agreement and all impact and implementation bargaining associated with the exercise of a management right.
In response, the Union declined to bargain and explained, in part, that the subject matter of ground rules was "covered by Articles 14 and 15 in our currently effective term agreement." Award at 18. When the Agency asserted that a failure to submit counterproposals would be viewed as a waiver, the Union filed a grievance, which alleged that management had repudiated the parties' collective bargaining agreement. The Agency asserted that no collective bargaining existed between the parties and denied the grievance. The grievance was not resolved and was submitted to arbitration.
The parties stipulated the following issues to be decided by the Arbitrator:
Do the Parties have a term collective bargaining agreement?
Did Management repudiate that agreement?
If the Parties have a term collective bargaining agreement, are the ground rules for mid-term bargaining contained in Article 14 binding for the term of the agreement?
Id. at 2. Applying an objective standard to the question of the formation of a contract, the Arbitrator determined that "the Parties do have a term collective bargaining contract; that Management did repudiate that contract; and that the ground rules for mid-term bargaining contained in Article 14 are binding for the term of th[e] agreement." Id.
The Arbitrator found that although there is no signed and dated term collective bargaining agreement between the parties, the record established "that from 1986 to 1994 and, in some instances beyond, the parties adopted Arbitrator Johnson's award as approved by the Agency head and thus there existed between the parties a tacit agreement such as that approved by the Authority in [United States Dep't of the Treasury, Bureau of Engraving and Printing, 44 FLRA 926 (1992) (BEP)]." Id. at 26. He emphasized that under Authority precedent, parties may adopt an agreement through conduct manifesting an intention to abide by its terms. To the Arbitrator, "there [wa]s a plethora of evidence that that is exactly what happened here." Id. He found the record was "replete with many instances in which the Agency conveyed to POPA and to the employees that it had recognized and adopted as the basic agreement between PTO and POPA all the provisions of the Johnson award approved by the Agency head." Id. (emphasis in original).
A few of the examples specified by the Arbitrator were as follows:
[T]he September 3, 1986 . . . memo to unit employees implementing selected articles of the basic agreement; the September 25, 1986 memo implementing Article 24, Section 6; the October 3, 1986 memo concerning the implementation of Article 20; the October 22, 1986 . . . memorandum to the employees concerning the "legally binding portions" of the "properly approved agreement"; ultimately sharing the cost of printing the agreement on two occasions; distributing in 1986 a revised list of the new subproject codes under the new basic agreement; entering into a 1987 agreement on security sign-in, sign-out which expressly provided that it would not override the 1986 Basic Agreement; amending Article 14, Section 2, of the "currently effective PTO-POPA Basic Agreement" to provide that the time for proposing mid-term changes shall begin with the tenth day of specified months; the December 7, 1990 memo . . . that referenced "the five years the agreement has been in effect" and "Management will comply in the future"; the February 27, 1992 agreement on [ v60 p873 ] Total Quality Management referencing Article 14 of the basic agreement; the December 1, 1992 agreement on Signatory Authority replacing Article 22 of "the parties' Collective Bargaining Agreement"; the December 2, 1993 . . . memo that if there should be an intent to terminate the labor agreement, "[t]he Labor Relations Division is responsible for notifying POPA of this decision no sooner than 180 days before termination and no later than 120 days before termination"; at least twenty-nine PTO memoranda to POPA from 1992 through 1997 complying with provisions in nine different articles of the "negotiated agreement" or the "labor agreement"; the September 12, 1994 agreement on compensatory-time pilot program that provided that "Article 20, Sections 5A, D, E, and F of the Basic Agreement will apply"; even as late as March 3, 1998, the parties "reaffirmed" Article 16 and Appendix B of Arbitrator Johnson's award.
Id. at 26-27.
In addition to determining that the parties have a term collective bargaining agreement, the Arbitrator also determined that the "effective date of the tacit agreement which the parties adopted by their conduct was July 1, 1986. Inasmuch as the Agency head had already reviewed the Johnson Award by July 1, 1986, the Agency head was not deprived of the 30-day review period." Id. at 30.
The Arbitrator acknowledged the Authority's contrary decision in PTO/POPA VI. See id. at 28. He ruled that despite the Authority's contrary decision, he was "constrained to find that by any standard the parties before me did have a tacit agreement to abide by all the provisions of the Johnson Award not disapproved by the Agency head." Id. (emphasis in original). He noted that the judge and the Authority in PTO/POPA VI had found that the parties had disagreed since 1991 whether they had an agreement. However, to the Arbitrator, these findings omitted "the fact that from 1986 to 1991 they did not so disagree, and that even up until 1994 there was no evidence of disagreement." Id.
As a remedy, the Arbitrator returned the parties to the status quo ante, but did not prevent the parties from altering the status quo. See id. at 31. Specifically, he awarded, as follows:
I shall direct that the Agency honor and abide by the 1986 collective bargaining agreement consisting of all portions of Arbitrator Johnson's Award that have received Agency-head approval; that it rescind and withdraw its implementation of the April 10, 2002 ground rules and any other collective-bargaining-related unilateral actions (unless permitted by law, rule or regulation) taken since implementation of those ground rules; and that, as provided by the Statute, it bargain with POPA in accordance with all approved provisions of the 1986 basic agreement, including Article 14 as amended . . ..
Id.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient on the following grounds: (1) the Arbitrator exceeded his authority; (2) the Arbitrator denied the Agency a fair hearing; (3) the award is based on a nonfact; (4) the award violates public policy; and (5) the award is contrary to law.
1. The Arbitrator exceeded his authority.
The Agency contends that the Arbitrator exceeded his authority by resolving issues that were not submitted to arbitration. The Agency maintains that under the stipulated issues, the Arbitrator was empowered only to determine whether there was a term collective bargaining agreement, whether it was repudiated, and whether the Article 14 ground rules were in effect. The Agency asserts that the Arbitrator was not authorized to issue a status quo ante remedy as he did because his remedial authority was limited to the viability of the Article 14 ground rules. The Agency also asserts that the Arbitrator exceeded his authority by finding that the effective date of the term agreement was July 1, 1986, despite acknowledging that no party alleged that date.
2. The Arbitrator denied the Agency a fair hearing.
The Agency contends that the Arbitrator denied it a fair hearing when he refused to hear relevant testimony and refused to admit evidence concerning that testimony while relying on similar evidence submitted by the Union. The Agency notes that during the arbitration hearing, agency counsel called a witness who was prepared to testify that when she was a union representative, she had discussions with union officers who stated that the Johnson award was not a collective bargaining agreement. The Agency further notes that the Arbitrator ruled that the proffered testimony was irrelevant and that he refused to admit handwritten notes supporting the proffered testimony. The Agency also notes that the [ v60 p874 ] Arbitrator would not allow the witness to testify to reasons why in an unfair labor practice charge, the Union did not argue that a term collective bargaining agreement existed.
The Agency asserts that this testimony was relevant and that the Arbitrator's refusal to allow it prejudiced the Agency and deprived it of a fair hearing. The Agency maintains that the Arbitrator's explanation that such opinion evidence was not relevant to the objective determination of the existence of an agreement is inconsistent with his reliance on similar opinion evidence that he admitted from the Union. In addition, the Agency claims that this action shows partiality by the Arbitrator and provides another basis on which to find the award deficient.
3. The award is based on a nonfact.
The Agency claims that central to the Arbitrator's conclusion that the parties had a tacit agreement was his finding that the Agency did not dispute the existence of a collective bargaining agreement until 1994. The Agency maintains that the Arbitrator noted that in 1995, an Authority regional director found that correspondence of the parties from 1991 and 1992 acknowledged that no collective bargaining agreement existed. However, the Agency asserts that the Arbitrator ruled that the parties could not identify the correspondence, it had not been introduced, and he would not rely on it.
In claiming that the award is deficient, the Agency argues that contrary to the Arbitrator's finding, the correspondence was introduced and received into the record and the regional director's letter referring to the correspondence was also introduced into the record. The Agency maintains that neither party disputes the fact that the documents were introduced and that the Arbitrator's erroneous finding was not the fault of the Agency because the Agency noted in its post-hearing brief the specific correspondence on which the regional director relied and at other times during the hearing cited to the correspondence. The Agency contends that if the Arbitrator had considered these documents, he would not have found a tacit agreement and would not have sustained the grievance.
4. The award violates public policy.
The Agency argues that the award requires it to comply with virtually every term of an 18-year old collective bargaining agreement without regard to the laws and regulations issued since 1986 that are inconsistent with provisions of the Johnson award and without regard to whether the parties have entered into separate agreements that are inconsistent with provisions of the Johnson award. The Agency asserts that consequently, the award is so disruptive that it contravenes the policy of § 7101 of the Statute favoring the promotion of efficient and effective government.
5. The award is contrary to law.
The Agency notes that although the Arbitrator found that the parties had no express agreement to implement all portions of the Johnson award that were not specifically disapproved by the Agency head, he found that the parties had a tacit agreement, effective July 1, 1986, consisting of all provisions of the Johnson award that were not specifically disapproved by the Agency head. The Agency contends that the Arbitrator's determination that the parties' tacit agreement resulted in a binding term collective bargaining agreement is contrary to law.
The Agency maintains that although conditions of employment may be established by the parties' past practice or by tacit agreement, a collective bargaining agreement is an agreement entered into as a result of collective bargaining. Consequently, the Agency argues that the Arbitrator's determination that the purported tacit agreement resulted in a term collective bargaining agreement is wrong as a matter of law. In the Agency's view, the finding of a tacit agreement is akin, at most, to the existence of a past practice and cannot create a binding term collective bargaining agreement. The Agency claims that to enforce the provisions of the Johnson award that were not disapproved, the Arbitrator would have had to find that a past practice was established for each and every provision, and he did not so find.
The Agency also maintains that because the Union had alleged that it had no duty to bargain based on the existence of a term collective bargaining agreement, the Union was required to prove the existence of a term collective bargaining agreement; the Agency was not required to disprove it. Consequently, the Agency asserts that the Arbitrator unlawfully shifted the burden of proof to the Agency by drawing an adverse inference from the Agency's failure to furnish evidence and identify those provisions of the Johnson award that were not implemented.
The Agency contends that the Arbitrator unlawfully relied on evidence from 1986 to 1991 to find a tacit agreement. The Agency claims that the uncertainties surrounding the treatment of interest arbitration awards during this period made any legal representations of the parties irrelevant because the parties did not know their legal rights and the legal consequences of their actions. Consequently, the Agency asserts that by binding the [ v60 p875 ] Agency to representations during the period 1986-1991 to effectively hold that the Agency waived its right to maintain its disapproval of the Johnson award, the Arbitrator unlawfully found that the Agency clearly and unmistakably waived statutory rights that did not yet exist.
In claiming that the award is contrary to law, the Agency additionally argues that because the Arbitrator acknowledged that the Agency had challenged the existence of a term collective bargaining agreement since 1994, the Arbitrator could not lawfully conclude that a tacit agreement or past practice continued to exist in 2002 when the Agency proposed new ground rules. In the Agency's view, because a tacit agreement must, if at all, be based on the conduct of the parties and the existence of a past practice, the agreement may be changed upon notice and an opportunity to bargain and can have no fixed term. Consequently, the Agency contends that the award is contrary to law by finding that the Union was required to consent to negotiate over changes to the purported tacit agreement. Similarly, the Agency argues that the Arbitrator's restriction of the Agency's ability to provide notice to the Union of its intent to no longer be bound by the tacit agreement is contrary to law by imposing a term on a tacit agreement, which, as a matter of law, is terminable by either party.
The Agency further contends that the award is contrary to PTO/POPA VI, which the Agency maintains found that similar evidence established only a past practice, not a term collective bargaining agreement. The Agency asserts that the finding was not dicta and should have been followed by the Arbitrator.
Additionally, the Agency maintains that the award cannot be supported as having found an implied-in-fact contract because the Arbitrator did not find an implied-in-fact contract. However, the Agency contends that "to the extent that the [A]rbitrator conflated the concept of tacit agreement with that of implied[-]in[-]fact contracts, the award is still deficient." Exceptions at 26 n.12. The Agency maintains that an implied-in-fact contract is founded on a meeting of the minds, mutuality of intent, and lack of ambiguity in offer. The Agency argues that to bind the Government to such a contract, the Government representative whose conduct is relied on must have actual authority to bind the Government in contract. The Agency asserts that in this case, the Arbitrator made no findings that would establish a implied-in-fact contract, including no findings of the authority of management officials on whose conduct he relied in determining there was a term collective bargaining agreement.
With respect to the Arbitrator's reliance on BEP, the Agency contends that such reliance was misplaced. In the Agency's view, unlike the arbitrator in BEP, the Arbitrator here made no finding that the parties consistently followed all provisions of the Johnson award that were not disapproved and made no finding that the Union detrimentally relied on the purported tacit agreement. The Agency also notes that the tacit agreement in BEP was to reinstate a negotiated collective bargaining agreement, not to create one for the first time, and that unlike the agency in BEP, the Agency provided the Union with notice and an opportunity to bargain over its proposed change.
The Agency also contends that the award is contrary to law because the Arbitrator's order to abide by all of the provisions of the Johnson award that were not disapproved would require the Agency to comply with several illegal provisions of the Johnson award. The Agency cites, as examples, Article 16, Section 10, Article 20, Section 1(I)(1), and Section 4, and Article 29, Section 7.
The Agency asserts that Article 16, Section 10 would require the Agency to violate the Hatch Act by allowing employees to display partisan political signs in work areas. The Agency asserts that Article 20, Section 1(I)(1) impermissibly interferes with management's right to discipline employees because it requires the Agency to counsel employees prior to placing them on sick-leave restriction. The Agency asserts that Article 20, Section 4 violates management's right to assign work because it requires the Agency to grant, without exception, annual leave, compensatory time, or leave without pay to employees to attend funerals. The Agency asserts that Article 29, Section 7 impermissibly interferes with management's right to hire because it would impose a hiring freeze of up to a year if the Agency decided to conduct a reduction-in-force.
The Agency additionally contends that the Arbitrator's determination of the term of the tacit agreement is contrary to § 7114(c) because it does not allow for the requisite 30-day period for agency-head review from the date of execution. In the Agency's view, to be consistent with § 7114(c), the effective date of the agreement could be no earlier than July 10, 1986. The Agency asserts that absent a lawful effective date, the Arbitrator could not find a binding term collective bargaining agreement.
Finally, the Agency argues that the Arbitrator's finding that the Agency repudiated a term collective bargaining agreement is contrary to law because there can be no repudiation of a tacit agreement. [ v60 p876 ]
B. Union's Opposition
The Union contends that the award is not deficient.
1. The Arbitrator did not exceed his authority by ordering the Agency to abide by the collective bargaining agreement.
The Union notes that as the Agency acknowledges, the parties stipulated that the Arbitrator was to decide whether the parties have a collective bargaining agreement and, if so, whether the Agency repudiated that agreement. The Union contends that having stipulated that the validity of the entirety of the 1986 agreement was to be decided, the Agency cannot establish that the Arbitrator lacked authority to order the Agency to abide by the agreement. The Union asserts that the remedy is directly responsive to the stipulated issues and questions what other remedy would be appropriate for a repudiation of a valid collective bargaining agreement. The Union further argues that in addition, the Arbitrator needed to determine the collective bargaining agreement's effective date to permit the parties to calculate the window period during which notice to terminate the agreement could be served.
2. The Arbitrator did not deny the Agency a fair hearing.
The Union argues that the Arbitrator applied the proper legal standard in concluding that the existence of an implied-in-fact agreement depends on objective conduct. Consequently, the Union asserts that the Arbitrator appropriately refused to admit evidence which he correctly determined was irrelevant because it was subjective. The Union also asserts that the Arbitrator did not demonstrate partiality by admitting Union evidence that the Agency characterizes as opinion evidence. The Union claims that unlike the Agency's evidence, this evidence concerned objective manifestations that the parties had entered into an agreement. In addition, the Union notes that the Union objected to the admission of the Agency's proffered testimony, while the Agency never objected to the admission of the Union's testimony. In the Union's view, the Agency cannot object to its admission now.
3. The award is not based on a nonfact.
The Union contends that although the Arbitrator found that the parties did not dispute the existence of the collective bargaining agreement until 1994, the Agency has not established that the Arbitrator would have reached a different result if he had found that the Agency disputed the existence of the collective bargaining agreement in 1991. The Union further contends that the Agency also has not established that the Arbitrator would have reached a different result had he specifically acknowledged that the parties' correspondence to which the Authority's regional director referred in his dismissal letter was part of the arbitration record. In addition, the Union notes that the Agency's counsel conceded at the hearing that she did not know what documents the regional director was referring to in his dismissal letter. The Union maintains that there can be no clear error in these circumstances. The Union also notes that in any event, the documents were part of the record and were reviewed by the Arbitrator.
4. The award is not contrary to public policy.
The Union primarily argues that under § 2429.5 of the Authority's Regulations, this exception should not be considered because it was not raised to the Arbitrator. In addition, in opposition to the exception on the merits, the Union asserts that § 7101 of the Statute is too general to meet the requirement that a public policy must be explicit and well-defined before an award can be found deficient. The Union also disputes the Agency's contention that the award requires enforcement of provisions of the Johnson award that are allegedly illegal. The Union notes that the collective bargaining agreement specifically makes administration subject to future laws and has an automatic reopener whenever a provision becomes out of date because of changes in law and regulation.
5. The award is not contrary to law.
Procedurally, the Union contends that certain of the Agency's arguments should be barred under § 2429.5. Specifically, the Union argues that the Authority should not consider the argument that the award is deficient because it requires compliance with unlawful provisions and should not consider the argument that the management officials were not authorized to enter into an enforceable agreement, because these issues were not presented to the Arbitrator.
In contending that the award is not deficient, the Union asserts that the Arbitrator's finding--that the parties agreed to adopt as their term collective bargaining agreement all the provisions of the Johnson award that were not disapproved--is consistent with law. The Union notes that under the Statute, parties may agree to implement as their collective bargaining agreement those portions of an agreement that were not disapproved during agency-head review. The Union maintains that the parties' agreement to adopt the approved provisions of the Johnson award as their collective bargaining agreement was not required to be explicit or in [ v60 p877 ] writing to be enforceable. The Union claims that an agreement to abide by a collective bargaining agreement that has not been executed may be based on the conduct of the parties. In addition, the Union argues that most of the Agency's arguments are misplaced because the question before the Arbitrator of whether the parties had agreed to adopt the provisions of the Johnson award as their term collective bargaining agreement was a question of fact and not a question of law.
The Union further argues that the Agency erroneously equates a tacit agreement to adopt a term collective bargaining agreement with a past practice that is terminable with notice at any time. In the Union's view, in finding that the parties tacitly had agreed to adopt the provisions of the Johnson award that were not disapproved, the Arbitrator found that the parties had an implied-in-fact agreement because the terms are synonymous. The Union notes that in the arbitration award in BEP, the arbitrator used the terms "tacit" and "implied-in-fact" interchangeably, and the Authority recognized this. The Union asserts that an implied-in-fact agreement has the same force and effect as an express agreement. The Union claims that because the Arbitrator found that the parties had a term collective bargaining agreement, the Agency incorrectly contends that the Arbitrator was required to find that every provision of the Johnson award not disapproved was followed by the parties. To the Union, the parties' agreement manifested an intention to be bound by the entirety of a written, although unexecuted, agreement consisting specifically of the provisions of the Johnson award that were not disapproved.
Contrary to the claim of the Agency, the Union asserts that the Arbitrator properly relied on evidence of the parties' conduct from 1986 to 1991. In the Union's view, the fact that the legal issue of whether interest arbitration awards were subject to agency-head review was unresolved during some of the time involved in this case has no bearing on whether the Agency voluntarily agreed to implement the approved provisions of the Johnson award in 1986.
The Union also argues that the award is not contrary to PTO/POPA VI. The Union relies on the court's decision in FLRA IV, in which the court found the Authority's findings pertaining to the existence of a term collective bargaining agreement to be dicta. The Union emphasizes that the court further stated that the dicta was not binding on the Union and that the existence of a term collective bargaining agreement remained an open issue. The Union further asserts that the court's decision expressly reflected the Authority's own views as to the nature of its findings in PTO/POPA VI because the Authority's brief to the court stated that the Union remained free to assert the existence of a comprehensive term agreement in any future case.
With respect to § 7114(c) of the Statute, the Union contends that the award is not deficient because as the Arbitrator expressly acknowledged, the agency head had already reviewed the Johnson award by July 1, 1986. Finally, the Union contends that the Arbitrator's finding of repudiation is not contrary to law because the Agency is again attempting to equate the tacit agreement with a past practice.
IV. Agency's Motion for Leave to Supplement Exceptions
A. Agency's Position
The Agency asserts that it has filed its motion to bring to the Authority's attention the recent admission by the Union's president that "he provided erroneous testimony in the proceeding before [the] Arbitrator[.]" Motion at 1. The Agency contends that the award is deficient in light of this "recanted testimony" and that the Agency could not have anticipated that he would disavow his prior testimony. Id. at 3.
B. Union's Opposition
The Union contends that leave to file supplemental exceptions should be denied because the supplemental exceptions are untimely and because arbitration awards are not subject to being found deficient on the basis of evidence arising after issuance of the award.
V. Analysis and Conclusions
A. Request for leave to supplement exceptions is denied.
We deny the Agency's request for leave to supplement its exceptions. Such a supplement is clearly untimely. Under § 7122(b) of the Statute, an exception must be filed within 30 days of the date the award is served on the filing party. To allow the Agency to supplement its exceptions would circumvent the 30-day filing requirement, which is jurisdictional and cannot be waived or extended by the Authority. See, e.g., AFGE Local 1917, 52 FLRA 658, 661 n.2 (1996) (Authority denied request to supplement exceptions on timeliness grounds).
Moreover, even if the Authority were somehow able to waive the time limit for filing, see Bremerton Metal Trades Council, 59 FLRA 583, 584 n.4 (2004) (Bremerton MTC), leave is not justified on the basis of evidence that came into existence after issuance of the [ v60 p878 ] Arbitrator's award, see United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1068 n.12 (2001) (Authority granted motion to strike an affidavit in support of exceptions because it constituted evidence that came into existence after the issuance of the arbitrator's award). The Authority has consistently held that arbitration awards are not subject to review on the basis of evidence that comes into existence after arbitration. See id. (citing Panama Canal Comm'n, 54 FLRA 1161, 1171 (1998); Veterans Admin. Reg'l Office, 5 FLRA 463, 471 (1981)). Even new evidence that would have resulted in a different award if it had been presented at the arbitration hearing is not a sufficient ground for "vitiating the required finality of the original award." Id. (quoting Paperhandlers Union No. 1 v. U.S. Trucking Corp., 441 F. Supp. 469, 475 (S.D.N.Y. 1977)). Furthermore, this approach is consistent with § 2429.5 of the Authority's Regulations, which provides that the Authority will not consider any evidence that was not presented to the arbitrator. See id.
B. The Arbitrator did not exceed his authority.
Arbitrators exceed their authority when they resolve an issue not submitted to arbitration, fail to resolve an issue submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed by the grievance. Arbitrators do not exceed their authority by addressing any issue that necessarily arises from issues specifically included in a stipulation of issues. See, e.g., United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., 60 FLRA 530, 532 (2004) (Naval Surface Warfare Ctr.). In addition, the Authority, like the federal courts, accords an arbitrator's interpretation of a stipulation of issues the same substantial deference accorded an arbitrator's interpretation and application of the parties' collective bargaining agreement. See, e.g., Air Force Space Division, Los Angeles Air Force Station, Calif., 24 FLRA 516, 518 (1986). Similarly, both the Authority and federal courts have consistently emphasized the broad discretion to be accorded arbitrators in determining what remedies are appropriate. See Naval Surface Warfare Ctr., 60 FLRA at 532.
Clearly, a stipulation of issues or submission agreement is well suited to the definition or specification of an arbitrator's remedial authority. See Marvin F. Hill, Jr. & Anthony V. Sinicropi, Remedies in Arbitration 65 (2d ed. 1991) (Remedies). In fact, to avoid litigation on remedial authority, many arbitrators make it a practice to have the parties stipulate to their view of the arbitrator's remedial authority. See id. The remedy power in arbitration has often been considered from two standpoints: (1) whether the arbitrator has the power to issue a remedy; and (2) whether an ordered remedy is deficient in a particular case. See Elkouri & Elkouri, How Arbitration Works 390 (Marlin M. Volz & Edward P. Groggin eds., 1997).
In Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960), the Supreme Court addressed the remedial power of arbitrators and observed that when arbitrators are commissioned to interpret and apply collective bargaining agreements, they are expected to bring their informed judgment to bear in order to reach a fair solution of the grievance presented. Consequently, parties typically go to arbitration to resolve disputes and obtain remedies, as appropriate; they typically do not go to arbitration for declaratory judgments. Although the power to formulate a remedy seems implicit in an arbitrator's authority to resolve a dispute, any stipulation of the parties must be examined because the parties are free to revise that authority by a carefully drafted submission agreement. See Remedies at 66.
In this case, the parties stipulated the following issues:
1. Do the parties have a term agreement?
2. Did Management repudiate that agreement?
3. If the Parties have a term collective bargaining agreement, are the ground rules for mid-term bargaining contained in Article 14 binding for the term of the agreement?
Award at 2.
In their stipulation, the parties specified the issues for resolution. They did not expressly address their view of the Arbitrator's remedial authority. The Agency contends that the Arbitrator was not authorized to issue a status quo ante remedy because his remedial authority was implicitly limited to the Article 14 ground rules. We disagree.
In response to the stipulated issues, the Arbitrator found that the parties have a collective bargaining agreement and that the Agency repudiated the agreement. Once the Arbitrator made these findings, the issue of the Arbitrator's remedial authority necessarily arose from the parties' failure to stipulate to the Arbitrator's authority and necessitated the Arbitrator's interpretation of the stipulation. Implicit in the award is the Arbitrator's determination that the stipulation authorized him to award a remedy for the Agency's repudiation of the agreement. Granting substantial deference to this interpretation [ v60 p879 ] of the stipulation, per Naval Surface Warfare Ctr., we reject the Agency's claim that the Arbitrator was not authorized to award a remedy for the repudiation of the agreement or that the third stipulated issue confined his remedial authority to Article 14. In addition, because the discretion to fashion a remedy is accorded the Arbitrator, he was not confined in determining the effective date of the agreement to choosing a date asserted by either party.
Accordingly, the Agency has failed to establish that the Arbitrator exceeded his authority, and we deny this exception.
C. The Arbitrator did not deny the Agency a fair hearing and was not partial.
We will find that an arbitrator denied a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence or conducted the proceedings in a manner that so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., United States Dep't of Veterans Affairs, 60 FLRA 479, 481 (2004). However, an arbitrator has considerable latitude in the conduct of a hearing and a party's objection to the conduct of the hearing does not alone provide a basis for finding an award deficient. Similarly, an arbitrator's limitation on the submission of evidence does not, by itself, demonstrate that the arbitrator failed to provide a fair hearing. See id. Arbitrators are required only to grant parties a fundamentally fair hearing, which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. See Bremerton MTC, 59 FLRA at 587.
In this case, the Agency notes that the Arbitrator refused to hear testimony of an agency witness and refused to admit a document concerning the testimony. The Agency asserts that the testimony and evidence was relevant and that the Arbitrator's refusal to allow the testimony and admit the evidence deprived the Agency of a fair hearing. The Union asserts that the Arbitrator appropriately refused to hear the testimony and admit the evidence as irrelevant because it was subjective.
The Arbitrator correctly ruled that an objective standard applies to the formation of a contract. See Internal Rev. Serv., North Florida Dist., Tampa Field Branch, Tampa, Fla., 55 FLRA 222, 222 (1999). The Arbitrator specifically refused to hear the testimony and admit the evidence because it was subjective and was not relevant to an objective standard for determining the formation of a collective bargaining agreement. Arbitration Hearing Transcript at 459-61. The Agency fails to demonstrate otherwise. Consequently, the Agency fails to establish that the Arbitrator refused to hear relevant testimony and refused to admit relevant evidence.
The Agency additionally asserts that the Arbitrator acted inconsistently by allowing similar opinion evidence from the Union. In response, the Union claims that its evidence was objective rather than subjective and that the Agency never objected to the Union's evidence, while the Union objected to allowing the Agency's testimony and evidence. We reject the Agency's claim that the Arbitrator acted inconsistently. The Agency cannot now claim that these situations were the same when the Arbitrator was presented with a Union objection to the Agency's testimony and evidence, but was not presented with an objection to the Union's evidence. Cf. Bremerton MTC, 59 FLRA at 587-88 (issues involving an arbitrator's conduct at the hearing that could have been, but were not, raised before the arbitrator will not be considered absent extraordinary circumstances). Furthermore, the Agency has not demonstrated that the Union's evidence did not concern objective manifestations that the parties had entered into an agreement. Accordingly, we deny this exception.
The Agency's exception that the Arbitrator was partial is based solely on its assertions that the Arbitrator denied it a fair hearing. Because we have found that the Arbitrator did not act unfairly, we deny this exception.
D. The award is not based on a nonfact.
To establish that an award is deficient because it is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, e.g., United States Dep't of Health and Human Services, Nat'l Institutes of Health, Bethesda, Md., 60 FLRA 184, 186 (2004) (NIH).
In this case, the Agency claims that central to the Arbitrator's ruling that the parties had a tacit agreement was his finding that the Agency did not dispute the existence of the agreement until 1994. The Agency maintains that the Arbitrator noted that in 1995, an Authority regional director found that correspondence of the parties from 1991 and 1992 acknowledged that no collective bargaining agreement existed. The Agency asserts that the Arbitrator ruled that the parties could not identify the correspondence, it had not been introduced, and he would not rely on it. See Exceptions at 41 (citing award at 13). In claiming that the award is deficient, the Agency argues that contrary to the Arbitrator's finding, the correspondence and the regional director's letter referring to the correspondence were admitted into the [ v60 p880 ] record and that the Arbitrator's erroneous finding was not the fault of the Agency
As has been noted, the Arbitrator specifically ruled that the record established that the parties adopted Arbitrator Johnson's award as approved by the Agency head. He emphasized that parties may adopt an agreement through conduct manifesting an intention to abide by its terms. To the Arbitrator, "there [wa]s a plethora of evidence that that is exactly what happened here." Award at 26. In view of the "plethora of evidence" on which the Arbitrator relied, the Agency has failed to establish that the result would have been different if the Arbitrator had specifically acknowledged that the correspondence to which the regional director referred in his dismissal letter was part of the arbitration record. See, e.g., NIH, 60 FLRA at 186. For these reasons, we deny this exception.
E. The Agency's exception, which contends that the award is contrary to public policy, is dismissed.
Section 2429.5 of the Authority's Regulations bars Authority consideration of any issue that could have been, but was not, presented to the arbitrator. There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exception, that enforcement of an 18-year collective bargaining agreement would be disruptive and contrary to the policy of § 7101 of the Statute favoring the promotion of an effective and efficient government. Clearly, such an issue could have been raised to the Arbitrator. As this issue should have been, but was not, raised to the Arbitrator, our consideration of this exception is barred by § 2429.5. See, e.g., AFGE Local 1546, 59 FLRA 126, 128 (2003). Accordingly, we dismiss this exception.
F. The award is not contrary to law.
The Agency contends that the award is contrary to law in many respects. The Agency argues that the Arbitrator's determination that a tacit agreement resulted in a binding term collective bargaining agreement is contrary to law. The Agency maintains that a collective bargaining agreement is an agreement entered into as a result of collective bargaining while a tacit agreement is akin to the existence of a past practice. The Agency asserts that to have enforced the provisions of the Johnson award that were not disapproved, the Arbitrator would have had to have found that a past practice was established for each and every provision. The Agency also asserts that a tacit agreement has no fixed term and may be changed upon notice and an opportunity to bargain. The Agency further argues that the Arbitrator's finding that the Agency repudiated a term collective bargaining agreement is contrary to law because there can be no repudiation of a tacit agreement.
In addition, the Agency contends that the award is deficient because the Arbitrator unlawfully shifted the burden of proof to the Agency by drawing an adverse inference from the Agency's failure to identify the provisions of the Johnson interest arbitration award that were not implemented. The Agency further argues that the determination of the term of the agreement is contrary to § 7114(c) because it does not allow for the requisite 30-day period for agency-head review, and absent a lawful effective date, there can be no binding term agreement. Finally, the Agency argues that the Arbitrator's order to abide by all of the provisions of the Johnson interest arbitration award that were not disapproved by the agency head is contrary to law because it would require the Agency to comply with several illegal provisions of the Johnson award. For the reasons that follow, we deny this exception.
We review questions of law raised by the exception to the Arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we determine whether the award is consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, we defer to the Arbitrator's underlying factual findings. See id. As the Authority has explained, we defer to the Arbitrator's findings of fact because it was the Arbitrator's evaluation of the record for which the parties bargained and not the Authority's evaluation. See, e.g., AFGE Nat'l Council of HUD Locals 222, 54 FLRA 1267, 1275 (1998) (citing Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987)) (HUD Locals).
The Authority has expressly held that the question of the existence of a collective bargaining agreement is a question of fact, not a question of law. See Internal Revenue Serv., North Florida Dist., Tampa Field Branch, Tampa, Fla., 55 FLRA 222, 222 (1999); see also United States Dep't of Transportation, Fed. Aviation Admin., Standiford Air Traffic Control Tower, Louisville, Ky, 53 FLRA 312, 318 n.5 (1997) (FAA). In ruling that the question of the existence of a collective bargaining agreement is a question of fact, the Authority specifically relied on the approach of the National Labor Relations Board and the federal courts. See, e.g., Bobbie Brooks, Inc. v. Garment Workers, 835 F.2d 1164 (6th Cir. 1987) (Bobbie Brooks); Arco Electric v. NLRB, 618 F.2d 698, 699 (10th Cir. 1980) enforcing 237 NLRB 708 (1978).
As explained by the court in Bobbie Brooks, the principles controlling a determination of whether a collective [ v60 p881 ] bargaining agreement exists are well established. "A meeting of the minds of the parties must occur before a labor contract is created." 835 F.2d at 1168 (citing Interprint Co., 273 NLRB 1863 (1985)); accord FAA, 53 FLRA at 317. "[I]t can be shown by conduct manifesting an intention to abide by agreed-upon terms." 835 F.2d at 1168. Consequently, because the Arbitrator's determination of the existence of a collective bargaining agreement is a factual finding to which we defer, the Agency's contrary-to-law arguments generally provide no basis for finding the award deficient.
Specifically, the Agency's arguments concerning the legal effects of a tacit agreement and the Arbitrator's basis for finding a tacit agreement constitute disagreement with the Arbitrator's factual finding. Furthermore, even if we were to view the determination of whether a collective bargaining agreement exists to be a mixed question of fact and law, we would view the objective determination of whether the conduct of the parties manifested an agreement to be a factual element of such a mixed determination, and we would still defer to the Arbitrator's factual finding.
In these circumstances, the Agency has not established that the award is contrary to law. As already noted, we apply the law to the facts as found by an arbitrator when resolving an exception claiming that the award is contrary to law. See HUD Locals, 54 FLRA at 1275-76.
Apart from the Agency's arguments disputing the Arbitrator's factual determination of the existence of a collective bargaining agreement, we reject the Agency's contentions that the agreement was not the result of collective bargaining and that the award is contrary to § 7114(c) of the Statute. Because the derivation of the collective bargaining agreement is Arbitrator Johnson's interest arbitration award, we find that the collective bargaining agreement satisfies the definition of "collective bargaining" set forth in § 7103(a)(12) of the Statute. [n4] We specifically note that when acknowledging that the parties may agree to implement portions of an interest arbitration award not disapproved by the agency head, the Authority has never held that such an agreement could not be manifested by the parties' conduct. See, e.g., PTO/POPA III, 41 FLRA at 802.
With respect to § 7114(c), the Agency argues that the award is deficient because it does not allow for the requisite 30-day period for agency-head review from the Arbitrator's determination of the date of execution. However, it is not disputed that the agency head exercised his right under § 7114(c) and disapproved three provisions of Arbitrator Johnson's April 29 award and disapproved fifteen provisions of Arbitrator Johnson's June 6 award. Consequently, the Agency has not established that the Arbitrator's award is contrary to § 7114(c).
In addition, the Agency asserts that the Union had the burden of proof because it had alleged that it had no duty to bargain and that the Arbitrator unlawfully shifted the burden of proof to the Agency. We disagree.
If a standard of proof is set forth in applicable law, rule, or regulation or is set forth in the parties' collective bargaining agreement, an arbitrator must apply the prescribed standard. See, e.g., AFGE Local 2250, 52 FLRA 320, 323-24 (1996). When no standard of proof is prescribed, arbitrators are empowered to prescribe whatever standard of proof that they consider appropriate, and their awards will not be found deficient on the basis that they applied an incorrect standard of proof. See id. at 324. Moreover, unless otherwise provided, prescribing the standard of proof encompasses specifying which party has the burden of proof under the prescribed standard. See id. In this case, the Agency fails to establish that applicable law, rule, or regulation or the parties' collective bargaining agreement prescribed the burden of proof. Consequently, the Agency's claim that the Arbitrator applied an incorrect standard of proof provides no basis for finding the award deficient. See id. Furthermore, in our view, it is unclear that the Arbitrator shifted the burden of proof to the Agency. In expressly addressing the issue of the burden of proof, the Arbitrator stated, as follows: "The burden is on the Union, not PTO, but there was no evidence that any provision was not implemented and I find that the parties did implement all provisions that were not disapproved." Award at 28.
We also deny the Agency's assertion that the award is contrary to PTO/POPA VI. The Agency maintains that the Authority in PTO/POPA VI found that evidence similar to the evidence on which the Arbitrator relied established only a past practice and not a collective bargaining agreement. The Agency asserts that the finding was not dicta and should have been followed by the Arbitrator.
Contrary to the Agency's assertion, the D.C. Circuit concluded that the Authority's determination that [ v60 p882 ] the evidence did not establish that a collective bargaining agreement existed was "pure dicta, entirely unnecessary for the FLRA's resolution of the union's ULP charges." See FLRA IV, 37 Fed.Appx. at 541. Furthermore, the court emphasized that "the FLRA has issued no dispositive judgment on the existence or nonexistence of a CBA[.]" Id. at 542 (emphasis in original). More specifically, the court ruled:
It is therefore clear that, if the question of the existence of an agreement between the parties should arise in the future, the FLRA's statements in this case will have no binding effect whatsoever. This issue as to whether the parties are covered by a comprehensive CBA remains an open issue.
Id.
We agree with the court's rulings. As noted by the court, the Authority in its brief maintained that the contested determination was "mere dictum" and that the Union remained free to assert the existence of a collective bargaining agreement in any future case. See id. Consequently, the Arbitrator was free in this case to resolve the issue of whether the parties are covered by a collective bargaining agreement without regard to the Authority's determination in PTO/POPA VI.
Finally, in agreement with the Union, we will not consider the issues of whether the award is deficient because it requires compliance with illegal provisions and whether management officials were authorized to enter into an enforceable agreement. There is no indication in the record that these issues were raised to the Arbitrator. Clearly, these issues could have been raised to the Arbitrator. Consequently, because they were not, our consideration of these issues is barred by § 2429.5. [n5] See, e.g., AFGE Local 1546, 59 FLRA at 128.
G. The effect of our decision
The effect of our decision is that the Agency must take the action required by the Arbitrator's final award. This means that the parties currently have an existing term collective bargaining agreement, with a term that initially commenced July 1, 1986. Article 34 of this agreement provides that it remains in full effect for 1-year periods unless written notice of intent to terminate is given not sooner than 180 days before the termination date and not later than 120 days before the termination date. [n6]
Once such notice is given, the moving party must submit its proposals to the other party not less that 120 days before the termination date. The parties are then required to begin negotiations no later than 70 days prior to the termination date. Under Article 34, the agreement remains in effect during negotiations and until implementation of a successor agreement.
Our decision also means that the Agency must take the action required by the Arbitrator's status quo ante remedy. The Arbitrator's award issued on February 9, 2004. In ordering a status quo ante remedy, the Arbitrator precluded the Agency from immediately notifying the Union of its intent to terminate the collective bargaining agreement. In view of the date of our decision, we believe that the substance of this remedy can be best implemented by following the actual notice period of Article 34, Section 1.
VI. Decision
The Agency's exceptions are denied or dismissed.
Appendix
Article 34, entitled Duration and Amendment, provides at Section 1, as follows:
a. Except as provided in this Article, this Agreement shall remain in full force and effect for a three year period commencing July 1, 1986, and thereafter for additional one year periods, unless written notice of intent to terminate is given to the other party in accordance with Section 1(b) below.
B. Such notice of intent to terminate shall be given not sooner than 180 days before the termination date and not less than 120 days before the termination date. Once such notice is given, the moving party must submit its proposals to the other party not less than 120 calendar days before the termination date. The party receiving the proposals may submit counterproposals and/or proposals to the other party during the next 45 day period. The parties shall begin negotiations no later than 70 days prior to the termination date. This Agreement will remain in full force and effect until the implementation of a new basic agreement.
Footnote # 1 for 60 FLRA No. 161 - Authority's Decision
Member Pope did not participate in this decision or the decision in United States Patent and Trademark Office, 57 FLRA 185 (2001), to which it is related.
Footnote # 2 for 60 FLRA No. 161 - Authority's Decision
This decision moots the Union's request.
Footnote # 3 for 60 FLRA No. 161 - Authority's Decision
The Authority has issued the following relevant decisions involving PTO and POPA:
1. 28 FLRA 3 (1987) (Member Frazier concurring in the result) (PTO/POPA I).
2. 28 FLRA 7 (1987) (Member Frazier concurring in the result) (PTO/POPA II).
3. 41 FLRA 795 (1991) (PTO/POPA III).
4. 45 FLRA 1090 (1992) (PTO/POPA IV).
5. 47 FLRA 10 (1993) (PTO/POPA V).
6. 57 FLRA 185 (2001) (PTO/POPA VI).
In addition, courts have issued the following relevant decisions involving appeals of the indicated Authority decisions:
1. PTO v. FLRA, Nos. 87-3877-78 (4th Cir. 1990) (FLRA I) (reviewing PTO/POPA I and PTO/POPA II).
2. PTO v. FLRA, No. 92-2347 (4th Cir. 1993) (FLRA II) (reviewing PTO/POPA IV).
3. POPA v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) (FLRA III) (reviewing PTO/POPA V).
4. POPA v. FLRA, 37 Fed.Appx. 540 (D.C. Cir. 2002) (unpublished per curiam order) (FLRA IV) (reviewing PTO/POPA VI).
Footnote # 4 for 60 FLRA No. 161 - Authority's Decision
Section 7103(a)(12) defines "collective bargaining" as the performance of the mutual obligation of union and agency representatives to meet and to bargain in good faith to reach agreement with respect to conditions of employment affecting employees in an appropriate unit and to execute, if requested by either party, a written document incorporating any agreement reached. Although the Agency disputes whether the collective bargaining agreement was the result of collective bargaining, the Agency does not dispute that the provisions of the Johnson interest arbitration award that were not disapproved by the agency head constitute a "collective bargaining agreement" within the meaning of § 7103(a)(8) of the Statute.
Footnote # 5 for 60 FLRA No. 161 - Authority's Decision
Although we refuse to consider these arguments, we note that as conceded by the Union, an agreement takes effect pursuant to § 7114(c), subject to applicable laws, rules, and regulations. See, e.g., United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 119, 121 (2000).
Footnote # 6 for 60 FLRA No. 161 - Authority's Decision
Article 34, Section 1 is set forth in an appendix to this decision.