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51 FLRA No. 130

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2459

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

TEXARKANA, TEXAS

(Agency)

0-AR-2718

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DECISION

July 19, 1996

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Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Joe D. Woodward 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator determined that the Union's grievance was not arbitrable because it raised an issue that was effectively precluded from relitigation by an earlier arbitration award involving an identical issue. For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the Union's exceptions.

II. Background and Arbitrator's Award

A. Prior Award

In July 1993, the parties to this case negotiated a new local supplemental agreement, which contained terms identical to the prior supplemental agreement. In August 1993, after reviewing the proposed agreement, the Agency at the national level "struck" from that agreement Article 18, Section h(5),⁽¹⁾ which provided for one sign-up sheet for overtime for both custodial and noncustodial employees, on the ground that it was inconsistent with Article 18, Section n of the parties' current master agreement.⁽²⁾ The Agency then replaced the negotiated procedure for distributing overtime with a procedure that provided for separate sign-up sheets for the custodial and noncustodial employees.

The Union alleged that the Agency had violated the master agreement by implementing the new overtime procedure without providing the Union an opportunity to bargain and the matter went to arbitration. The arbitrator in that proceeding framed the issues, as pertinent here, as "was the striking proper, and if it was not proper, what is the appropriate remedy?" Exceptions, Exhibit 2 at 7.

On May 10, 1994, the arbitrator in the first proceeding issued an award in which he rescinded the Agency's "striking" of Article 18, Section h(5) from the local supplemental agreement. In so doing, he found that the new sign-up procedure for the distribution of overtime had been improperly established. He directed the parties to return to the prior procedure. However, he found that there was no basis to grant the Union's request for a make-whole remedy involving backpay for employees who had lost overtime opportunities as a result of the Agency's failure to bargain before striking the provision. He stated that the "Union made no offer of proof regarding loss of earnings or availability for work of any employees [and] therefore its request that the employees be made whole must be, and the same hereby is, denied." Id. at 12. Accordingly, he rendered the following award:

The action of the Acting Assistant Director, Human Resources Management Division, in striking Article 18, Section h(5) from the Local Supplemental Agreement was an improper exercise of his discretion and therefore was improper. Article 18, Section h(5) therefore is to be deemed a viable and continuing part of the Local Supplemental Agreement retroactive to 20 August 1993.

Id. Neither party filed exceptions to that award.

B. Award in This Case

After the first award issued, the Union filed the grievance giving rise to this case, seeking backpay for employees who allegedly had lost overtime opportunities as a result of the Agency's implementation, without bargaining, of the sign-up procedure disputed in the earlier arbitration. When the grievance was not resolved it was submitted to arbitration where the Arbitrator framed the issue, in pertinent part, as "Is the matter arbitrable[?]" Award at 4.

Stating that he was relying on the requirements set forth in U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 982-83 (1990) (Scott Air Force Base), which had been submitted to him by the Agency, the Arbitrator concluded that the grievance was not arbitrable because of the binding effect of the earlier arbitration award.⁽³⁾ In so concluding, he found, as relevant here, that the backpay remedy issue before him was identical to the make-whole remedy that was before the first arbitrator. He also found that the issue before him either had been litigated before the first arbitrator or that the Union had every opportunity to do so. He stated that the Union had failed to offer evidence in the first proceeding as to losses by affected employees. He further stated that "arbitrable law" does not provide the Union with a second chance to litigate the matter. Award at 7.

III. Exceptions

A. Union's Contentions

The Union alleges that the award is contrary to law and fact because the Arbitrator misapplied the requirements for issue preclusion set forth in Scott Air Force Base. In support of its position, the Union maintains that the two arbitration proceedings involve distinct and separate issues. The Union argues that the earlier proceeding concerned a dispute over contract negotiations while the subsequent proceeding concerned a dispute over backpay for the loss of overtime opportunities.

Further, the Union states that the issue of backpay was not "litigated" in the earlier proceeding. Exceptions at 7. Rather, the Union asserts that only the issue of the propriety of the Agency's implementation, without bargaining, of the new sign-up sheet policy was litigated in that arbitration proceeding. The Union argues that the make-whole remedy it sought in the earlier proceeding was actually a request to return to the status quo by reinstituting a one sheet sign-up system. Citing Department of the Air Force, Warner Robins Air Force Base and American Federation of Government Employees, Local 987, 32 FLRA 1081 (1988) (Warner Robins), the Union further argues that the first arbitrator discussed the issue of backpay only in his opinion and not in his award. The Union claims that only an arbitrator's award is subject to review.

B. Agency's Opposition

The Agency contends that the Arbitrator made a determination on procedural arbitrability under the parties' collective bargaining agreement that is not subject to challenge. The Agency asserts that although arbitrators are not, by law, bound to apply the principles of res judicata or issue preclusion, they may choose to do so, as here, in finding an award not arbitrable.

Further, the Agency argues that Scott Air Force Base, relied on by the Arbitrator, is inapplicable because it is concerned with the preclusive effect of an Authority finding in an earlier unfair labor practice decision. In the alternative, the Agency supports the Arbitrator's application of Scott Air Force Base and his findings and conclusions.

IV. Analysis and Conclusions

Authority decisions do not explicitly set forth what standard of review should be applied to an arbitrator's determination that an earlier award has binding effect. We now conclude that, in cases such as the one before us, we will accord such a determination the same deference we accord an arbitrator's decision regarding the procedural arbitrability of a grievance under the parties' collective bargaining agreement.⁽⁴⁾ See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995) (AFGE, Local 2921) (an arbitrator's determination of the procedural arbitrability of a grievance is not subject to challenge). See also John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964).

Generally, an arbitrator is not bound by another arbitrator's award. See International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientists Association and National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio, 50 FLRA 533, 536-37 (1995). However, an arbitrator has the discretion to decide that an earlier award is binding. Gonce v. Veterans Administration, 872 F.2d 995, 997 (Fed. Cir. 1989) (preclusive effect of prior arbitration award generally is for the arbitrator to decide); U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 41 FLRA 303, 305 (1991) (Tinker). In exercising that discretion, the arbitrator may apply commonly recognized principles of "collateral estoppel" (or the more recently coined term of "issue preclusion"). See O. Fairweather, Practice and Procedure in Labor Arbitration 233 (3d ed. 1991) (an arbitrator may apply the collateral estoppel doctrine recognized in law that, "where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action or a different cause of action.")

An arbitrator's determination that an earlier award has binding effect is akin to an arbitrator's determination of procedural arbitrability under the parties' collective bargaining agreement because both dispose of a grievance, in whole or in part, procedurally and not on the merits. Compare Tinker, 41 FLRA at 305 (arbitrator found a grievance not arbitrable based on a prior award involving the same parties and resolving the same issue) with American Federation of Government Employees, Local 1594 and U.S. Department of Veterans Affairs, 51 FLRA 518 (1995) (arbitrator found a grievance not arbitrable based on a party's failure to comply with the procedural requirements of the negotiated grievance procedure). An arbitrator's determination of the procedural arbitrability of a grievance is not subject to challenge except on grounds that do not challenge the determination of procedural arbitrability itself. AFGE, Local 2921, 50 FLRA at 185-86.

Because arbitration awards generally do not bind future arbitrators, an arbitrator who determines whether a prior award has preclusive effect is not obligated to do so in the same manner that a court or the Authority would decide a similar issue.⁽⁵⁾ Rather, the arbitrator is making determinations that constitute factual findings and reasoning to which the Authority normally accords deference. Cf. U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii,, 41 FLRA 207, 211-12 (1991) (INS) (arbitrator's misapplication of the harmful-error rule when he was not required to apply that rule constituted, among other things, the arbitrator's reasoning and did not provide a basis for finding the award deficient). The Authority accords deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993), quoting United Paperworkers v. Misco, Inc., 484 U.S. 29, 45 (1987) ("[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them who had more opportunity to observe" the grievant and the witnesses and who was familiar with the case). In addition, the Authority accords deference to an arbitrator's reasoning to encourage arbitrators to provide adequate support for their decisions. See INS, 41 FLRA at 212-13, quoting Steelworkers v. Enterprise Wheel, 363 U.S. 593, 598 (1960).

The Union's contention that the Arbitrator misapplied the requirements for issue preclusion set forth in Scott Air Force Base directly challenges the Arbitrator's findings and reasons for concluding that the grievance was not arbitrable. Accordingly, based on the foregoing, it provides no basis for finding the award deficient. AFGE, Local 2921, 50 FLRA at 186.

We also reject the Union's argument that the first arbitrator's finding denying backpay could not have preclusive effect because it was not part of his award. Although that finding was not contained in the section of the Arbitrator's decision entitled "award," it was a finding that was necessary for the arbitrator to decide the issue before him of whether a remedy was appropriate. In contrast, the comments found to be separate from the award in Warner Robins were not necessary to the disposition of the grievance in that case.

Accordingly, we deny the exceptions.

V. Decision

The Union's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency's Acting Assistant Director, Human Resources Management Division took this action after notifying the Warden at the local level.

2. Article 18, Section n of the current master agreement states, in pertinent part: "Nothing in this Section is meant to restrict the Employer's management of overtime costs." Exceptions, Exhibit 2 at 2.

3. In Scott Air Force Base, the Authority held that it was estopped from reaching a result in that case that was contrary to its findings in an earlier award. The Authority noted that the doctrine of issue preclusion will prevent parties from relitigating issues of fact or law that have been resolved in a prior case when the following requirements have been satisfied: (1) the same issue must be involved in both cases; (2) the issue must have been actually litigated in the first case; (3) the resolution of the issue must have been necessary to the decision in the first case; (4) the prior decision on the issue to be precluded must be final; and (5) the party precluded must have been fully represented at the prior hearing on the precluded issue.

4. In this case, the record does not indicate that the parties' agreements require that arbitrators be bound by earlier awards. Cf. Hotel Association of Washington, D.C., Inc. v. Hotel & Restaurant Employees Union, Local 25, AFL-CIO, 963 F.2d 388, 389-91 (D.C. Cir. 1992) (the extent to which an arbitrator is bound by an earlier award can be determined by reference to the agreement). Therefore, we need not address the standard of review to be applied in such circumstances.

5. We note that Scott Air Force Base applies only to determinations as to whether the Authority must give preclusive effect to previous Authority decisions. If an arbitrator bases an award on principles of issue preclusion under a mistaken belief that Scott Air Force Base applies to arbitration awards, that would not be grounds for finding the award deficient. Cf. U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 779 (1993) (Authority found no basis for finding deficient an arbitrator's determination to apply the substantive standards for determining just cause that are applied by the MSPB, even though he was under the mistaken belief that he was required to do so); INS, 41 FLRA at 211-12 (Authority found no basis for finding deficient an arbitrator's determination to apply the harmful-error rule, even though he was not required to do so).

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