58 FLRA No. 134

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Ray Fernandez 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 Arbitrator found that the Agency violated the parties' agreement by failing to provide uniform allowances for certain non-correctional employees, and directed the Agency to provide such allowances. For the reasons that follow, we find that the award is deficient because it fails to draw its essence from the parties' agreement. Accordingly, we set aside the award.

II.     Background and Arbitrator's Award

      In 1999, the Agency began assigning non-correctional staff to correctional posts on a temporary basis. Unlike correctional staff, the non-correctional employees were not required to wear a uniform and did not receive a uniform allowance. The Union filed a grievance alleging that the Agency violated the parties' agreement by failing to provide non-correctional employees a uniform allowance. The grievance was unresolved and submitted to arbitration, where the issues were framed as: (1) "Is this an arbitrable case[;]" and (2) "Should non-correctional employees temporarily assigned to correctional officer posts be entitled to a uniform allowance, and if so what shall be the remedy?" Award at 2.

      The Arbitrator concluded that the Agency violated Article 28, Section f, of the parties' agreement, which provides that "[t]he employer will pay an allowance each year to each employee who is required by policy to wear a uniform in the performance of their duties." Id. at 10. In reaching that conclusion, the Arbitrator applied the policies set forth in the Agency's Correctional Services Manual and the Human Resources Manual, which the Arbitrator found required all employees -- including the non-correctional staff at issue -- to wear a uniform when assigned to a correctional post. The Arbitrator rejected the Agency's claim that non-correctional staff were not entitled to a uniform allowance because the Agency did not require those employees to wear uniforms when temporarily assigned to a correctional post. The Arbitrator awarded the employees at issue a uniform allowance and a retroactive payment for past violations based on a specific formula. Id. at 12.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award fails to draw its essence from Article 28 of the parties' agreement, which incorporates the Agency's uniform policy, because the Agency does not require non-correctional employees to wear uniforms when temporarily assigned to correctional posts. [n1]  In addition, the Agency asserts that the award excessively interferes with management's rights to assign work and determine internal security practices under § 7106(a)(1) and (2)(B) of the Statute, and is contrary to 5 U.S.C. § 5901(a)(2) and the Back Pay Act.

B.     Union's Opposition

      The Union asserts that the parties' agreement and Agency policy provide that any employee performing the correctional duties at issue is entitled to a uniform allowance. In addition, the Union asserts that the award does not affect the Agency's rights to assign work or determine internal security practices, and that the award is consistent with 5 U.S.C. § 5901(a)(2) and the Back Pay Act. [ v58 p554 ]

IV.     The award fails to draw its essence from the parties' agreement

      For an award to be deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. See United States Dep't of Defense, Hale Koa Hotel, 55 FLRA 651, 652 (1999); United States Dep't of the Army, Fort Campbell Dist., Third Reg., Fort Campbell, Ky., 37 FLRA 186, 194 (1990). In this case, the parties' agreement expressly incorporates the Agency's uniform policy, and accordingly, the Agency's challenge to the Arbitrator's application of the uniform policy presents a question of contract interpretation.

      The parties' agreement provides that "[t]he employer will pay [a uniform] allowance each year to each employee who is required by policy to wear a uniform in the performance of their duties." Award at 10 (quoting Agreement at Article 28, Section f). The Arbitrator construed this provision as requiring the Agency to pay a uniform allowance to the employees at issue, even though he acknowledged that they were not required to wear a uniform while performing correctional duties. The Arbitrator reasoned that the Agency's policy required all employees performing these duties to wear a uniform, despite the fact that the Agency did not require this. Award at 11.

      We conclude that the Arbitrator's construction of the agreement is implausible and contrary to its purpose. In this regard, it is apparent that the agreement provides a uniform allowance to those employees required by policy to wear uniforms in the performance of their duties, so that such employees may, in fact, purchase uniforms. [n2]  That is, under the parties' agreement and Agency policy, the requirement to wear a uniform is a precondition to the Agency's obligation to provide employees a uniform allowance. As there is no dispute that non-correctional employees are not required to wear uniforms when temporarily assigned to correctional posts, they are, therefore, not entitled to the allowance.

      As non-correctional employees are not required to wear a uniform when temporarily staffing correctional posts, Article 28 cannot be interpreted as entitling those employees to a uniform allowance. Accordingly, we conclude that the award fails to draw its essence from the agreement. [n3]  See, United States Small Business Admin., 55 FLRA 179, 182 (1999); United States Dep't of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 53 FLRA 29, 33 (1997); United States Dep't of the Air Force, Oklahoma City Air Logistics Command, Tinker AFB, Okla., 48 FLRA 342, 348-49 (1993).

V.     Decision

      The award is set aside.

   Article 28, Section h of the parties' agreement provides, in relevant part, that "[u]niforms for all staff will be in accordance with policy, and only those staff occupying positions outlined in policy will be eligible for a uniform allowance."

      We note, as pointed out by the Agency, that this matter is also covered by 5 C.F.R. § 591.103, which provides that "[u]nless a higher initial maximum uniform allowance rate is payable under [another regulation] to an employee who is required by statute, regulation, or an agency's written administrative procedures to wear a uniform, the head of each agency concerned, out of funds available, shall . . . [p]ay an allowance for a uniform not to exceed $400 a year[.]" Exception at 2 n.2.

      In view of this conclusion, we do not address the Agency's remaining exceptions.