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58 FLRA No. 144
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236
(Union)
and
UNITED STATES
GENERAL SERVICES ADMINISTRATION
(Agency)
0-AR-3617
_____
DECISION
June 6, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
This matter is before the Authority on exceptions to an award of Arbitrator Jeffrey J. Goodfriend filed by the Union under § 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.
This dispute involves the Agency's decision to quickly reorganize a sub-division within the Federal Service Supply -- the Property Management Program/Personal Property Division (PPD) -- in an effort to reduce costs and stave off any potential elimination of the sales division within the PPD. Award at 14. After the Agency's decision to reorganize, the Union offered several impact and implementation proposals. The Union filed a grievance claiming that the Agency failed to bargain in good faith because the Agency's bargaining team did not have authority to enter into binding agreements and because it took an adversarial approach to bargaining, rather than an interest-based approach, in violation of Article 3 of the parties' agreement. Accordingly, the Arbitrator set forth the issue as follows:
Did the U.S. General Services Administration ("GSA") bargain in good faith with the American Federation of Government Employees, Council 236 ("the Union") over the reorganization of GSA's Federal Supply Service Property Management Program? If not, what is the appropriate remedy to be applied by the arbitrator?
Award at 1.
Upon review, the Arbitrator determined that the record did not support the Union's contentions that the Agency failed to bargain in good faith. In resolving this issue, the Arbitrator determined that the Agency's team had authority to negotiate on behalf of the Agency, and that the Agency "met and negotiated with the Union over substantive proposals for two days and then went to mediation for one day, continuing the negotiations and agreed in principal [sic] to four of the seven Union proposals." Award at 18, 19; also citing Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pa., 11 FLRA 639 (1983) (BOP, Lewisburg).
Additionally, the Arbitrator found that the Agency met its obligation to bargain in good faith even applying an interest-based bargaining standard. Award at 20. Specifically, the Arbitrator found that the Union's proposals, which would have delayed the implementation of the reorganization for three years, were directly at odds with the Agency's "core interest" to implement the reorganization as quickly as possible because it would generate immediate cost savings. Id. at 20-21.
Finally, the Arbitrator determined that since he found that the Agency bargained in "good faith," he did not need to address a defense the Agency raised in its post-hearing brief that it was not required to bargain because the proposals were outside the duty to bargain under either § 7106(a)/(b)(1) or Executive Order 12871. [n1] Id. at 22.
The Union argues that the Arbitrator failed to determine whether or not the Union's proposals were negotiable under § 7106(b)(1), and, as such, argues that [ v58 p583 ] the award is contrary to § 7106(b)(1). [n2] Exceptions at 1, 2.
Moreover, the Union claims that the Arbitrator incorrectly applied Authority precedent. Exceptions at 1. In this regard, the Union contends that the Arbitrator's reliance on BOP, Lewisburg, 11 FLRA at 641, was in error because that case involved a duty to bargain issue and proposals that were found to be nonnegotiable. Id.
The Agency argues that the Arbitrator's decision was directly responsive to the issue presented and that after applying the law to the facts the Arbitrator determined that the Agency had in fact negotiated in "good faith." Opposition at 3.
The Agency contends that BOP, Lewisburg, 11 FLRA at 639, the case cited by the Arbitrator, is similar to the present case and that the Union's argument that it was improperly applied amounts to nothing more than mere disagreement. Opposition at 5-6. The Agency also argues that none of the negotiability issues now raised by the Union were raised before the Arbitrator and, thus, those issues should be dismissed under 5 C.F.R. § 2429.5. Finally, the Agency argues that the Union failed to raise any concerns over Executive Order 12871 to the Arbitrator and, as such, any argument pertaining to E.O. 12871 raised at this juncture by the Union should also be dismissed. Opposition at 3-4 (citing 5 C.F.R. § 2429.5).
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).
Here, the issue submitted to arbitration was one involving whether the Agency had negotiated in good faith over a number of impact and implementation proposals submitted by the Union. While the Union argues that it was necessary for the Arbitrator to determine whether its proposals were negotiable under § 7106(b)(1), such determination was not necessary to resolve the issue submitted. In this respect, we note that the Arbitrator found that the issue submitted was resolved when he determined that the Agency had bargained in good faith. Award at 22. After making this determination, the Arbitrator also noted that resolving whether the Union's proposals fell under § 7106(b)(1) was not necessary given his above determination. Id. Accordingly, as the Arbitrator's award is directly responsive to the issue before him and does not fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, or disregard a specific limitation on his authority, the Union has failed to show that the Arbitrator exceeded his authority by not addressing the § 7106(b)(1) matter. See AFGE, Local 1749, 58 FLRA 459, 461 (2003).
Section 7122(a)(1) of the Statute provides in pertinent part that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation. As the exception involves the award's consistency with law, the question of law raised by the Arbitrator's award and the Agency's exception must be reviewed de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. See Id.
We reject the Union's assertion that the award is contrary to law because the Arbitrator misapplied BOP, Lewisburg, 11 FLRA 641. In that decision, the Authority noted that the mere fact that a party was not persuaded to change its position during negotiations did not, in itself, constitute a showing of bad faith. This is consistent with our approach that determinations as to whether a party has engaged in good faith bargaining should be resolved based on the totality of the circumstances. United States Dep't of the Air Force, HQ., Air Force Logistics Command, Wright-Patterson Air Force Base, Oh., 36 FLRA 524, 531-34 (1990). Accordingly, as the Union has failed to show how the Arbitrator's award is contrary to either this decision or is otherwise contrary to law, we deny the Union's exception. [n3]
The Union's exceptions are denied.
We note that the Union argues that it was unable to challenge the Agency's contentions that these proposals were nonnegotiable under either § 7106(a) or Executive Order 12871, because these arguments were raised for the first time by the Agency in its post-hearing brief. However, in light of the fact that the Arbitrator was able to resolve this matter without addressing the Agency's arguments, we need not address the Union's contention on this point.
We construe this assertion as a claim that the Arbitrator exceeded his authority by failing to resolve an issue before him.
As we have denied the Union's exception that the award is contrary to law, we need not address the Agency's remaining arguments pertaining to § 2429.5 of the Authority's Regulations.