U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Number 139                    February 2001

American Federation of Government Employees, Local 2501 and Defense Logistics Agency, 0-AR-3352, January 26, 2001, 56 FLRA No. 187.

The Authority turned down union exceptions to an award in which an arbitrator found that the union had breached a settlement agreement in which it had agreed to drop pending cases. As a remedy for the breach the arbitrator declared another arbitrator's award null and void because the matter decided by that arbitrator was encompassed by the settlement agreement.

In his June 7, 1997, award, Arbitrator Bankston ordered the agency to bargain with the union over the composition of a caretaker workforce and retained jurisdiction for the purposes of interpretation and implementation of his award. When the agency, in November 1999, notified the union that it intended to phase out the security function of the caretaker workforce, the union asked Arbitrator Bankston to clarify his 1997 award. On February 20, 2000, Arbitrator Bankston ordered the agency to cease and desist from phasing out the security function until he conducted a full review of the issue.

On April 6, 2000, during a hearing conducted by Arbitrator Cocalis concerning a grievance involving competitive areas, the union and the agency, with the assistance of the arbitrator, entered into a settlement agreement. That agreement stated, in part, the following: "In consideration of the Union dropping all grievances and/or third party proceedings pending as of April 6, 2000, excepting the official time and office equipment grievance, [the] employer agrees to delay all pending reductions in force until June 30, 2001." At the request of the union, Arbitrator Cocalis retained jurisdiction over implementation of the settlement agreement.

On June 14, 2000, Arbitrator Bankston clarified his 1997 award and held that the agency's awarding of bargaining-unit work to individuals outside the unit was impermissible. On July 24, 2000, the agency asked Arbitrator Cocalis to enforce the April 6, 2000, settlement agreement. This he did, finding that the union beached the settlement agreement when it didn't drop the grievance underlying the June 14, 2000, award by Arbitrator Bankston and declared the Bankston award null and void.

FLRA, noting that the motion for clarification was pending before Arbitrator Bankston on the date of the settlement agreement, rejected the union's essence exception to Arbitrator Cocalis' interpretation of the settlement agreement as including the matter before Arbitrator Bankston.

Nor did FLRA find Arbitrator Cocalis' remedy contrary to law:

Even though the Bankston award may have become final and binding, parties are free to modify a final and binding award. . . . Furthermore, a union may contractually waive its right under the Statute and an arbitrator may enforce the waiver. . . . Even if Bankston's award were correct and no basis were provided for finding it deficient, the Union agreed to forego the benefits of all pending third-party proceedings. Accordingly, the award is not contrary to law.

FLRA also rejected the union's claim that Cocalis exceeded his authority.

The Union's only claim in this regard is a reframing of its contrary to law arguments. As we decided above, the Union fails to establish that Arbitrator Cocalis' nullification of Arbitrator Bankston's award disregards the Statute under the circumstances of this case. Accordingly, we find that the Union fails to show that Arbitrator Cocalis disregarded limitations on his authority and deny this exception.

In stating that "[e]ven if Bankston's award were correct," FLRA seems to be hinting that had the agency filed timely exceptions to that award, FLRA might have found it deficient because it interferes with management's right to contract out. Although the 1997 award, directing the agency to bargain over the composition of the caretaker workforce, arguably dealt with section (b)(1) staffing patterns, one wonders whether FLRA would have found that management's right to contract out is encompassed by section 7106(b)(1) staffing patterns. That question was not addressed in 54 FLRA No. 136 where FLRA held that section 7106(b)(1)'s reference to methods, means and technology (the way in which an agency performs its work) did not encompass contracting out (which concerns "by whom the work is best performed—either in-house by agency employees or by employees of an outside organization").