Authority's Decision and Member Pope's Opinion
[ v59 p406 ]
59 FLRA No. 58
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL LOCAL 2128
(Union)
and
UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT
MANAGEMENT AGENCY DISTRICT WEST
(Agency)
0-AR-3608
_____
DECISION
October 10, 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 Barry J. Baroni 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. [n1]
The Arbitrator denied a grievance alleging that the Agency violated the parties' agreement by adding a third shift. For the reasons discussed below, we find that the Union has failed to establish that the award is deficient.
When the Agency implemented a "24/7" operation in order to meet mission requirements as a result of the aftermath of the attacks of September 11, 2001, the Agency added a third shift at the Defense Contract Management Agency (DCMA) Kelly field office, which is part of DCMA San Antonio Command.
Subsequently, the Union filed a grievance alleging that "the Agency violated Article 20 of the Master Agreement and the Alternative Work Schedule Statute when it unilaterally terminated Alternative Work Schedules (AWS) and unilaterally implemented first, second, and third shifts." Award at 2. [n2]
The grievance was not resolved and was submitted to arbitration. In the absence of a stipulated issue by the parties, the Arbitrator framed the relevant issue as:
Did the Agency violate the Agreement when it added a third shift?
Id. at 1. [n3]
As a preliminary matter, the Arbitrator stated that he would not address negotiability disputes between the parties that were pending resolution before the Authority, matters allegedly occurring at other DCMA Command offices, or other matters pending in separate arbitration proceedings. In this connection, the Arbitrator found that, under the parties' negotiated grievance procedure, "[o]nly the three issues grieved in the August 15th grievance [could] be advanced to arbitration . . . ." Id. at 6. He also found that Article 36, Section 8(E) of the parties' agreement "expressly prohibits" the application of this arbitration hearing to separate DCMA Commands, which were not party to the grievance. Id. at 7.
On the merits, the Arbitrator found that the Agency had not violated the parties' agreement by establishing a third shift. In this regard, he stated:
The establishment of the third shift non-standard tour was not arbitrary, nor was it in violation of the Contract. Rather, it was in accordance with Article 20 and negotiated and established Management Rights, and it was in response to mission requirements thrust upon the Command by the Department of Defense to support the critical production needs of government contractors co-located at DCMA Kelly.
Id. at 11 (emphasis omitted). [ v59 p407 ]
Specifically, the Arbitrator found that Article 20 of the agreement "clearly establishes Management's right to establish work schedules" and "envisioned circumstances in which mission requirements would necessitate the establishment of second and third shift non-standard tours of duty." Id. at 7-8. The Arbitrator found that the AWS program outlined in Article 20 "was never designed or intended to limit or restrict Management from determining to whom, when, or for how long work should be assigned in order to meet mission requirements." Id. at 10. Finally, he found that Article 20 "provided the flexibility" for the Agency "to take steps to meet mission requirements" when the facility went to a "24/7" operation. Id.
Having found that the Agency did not violate the agreement by creating a non-standard shift, the Arbitrator rejected the remedy sought by the Union of money damages for overtime that unit employees allegedly lost by creation of the third shift.
As a preliminary matter, the Union argues that it was a "misrepresentation of the facts" for the Arbitrator to have found that the Union attempted to "expand the scope of this arbitration proceeding beyond" the issues raised in the grievance. Exceptions at 4 (quoting Award at 4). In this connection, the Union argues that under Articles 20 and 44 of the parties' agreement, the jurisdiction of Local 2128 covers five Agency Contract Management Offices, and that "any bargaining and negotiated agreements that [Local 2128] participates in includes and is binding on all of this Council Local and the Council Local's whole area of bargaining unit jurisdiction." Exceptions at 4.
As to the merits, the Union argues that the award is contrary to law because the Arbitrator "refused to consider, completely ignored and overlooked" the Agency's obligations under the parties' agreement and the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act), codified at 5 FLRA § 6120 et seq. Id. at 2. The Union asserts that the award is contrary to the Work Schedules Act in several respects, including its refusal "to recognize that the [Work Schedules Act] requires the `head of the agency' to make a determination of `adverse agency impact' prior to the agency's termination of a negotiated AWS work schedule,"; its improper denial of the Union's statutory and contractual notice and bargaining rights; and its failure to recognize that only the Federal Service Impasses Panel (FSIP) has the authority to decide the issue of "adverse agency impact" under § 6131(c)(3)(B) of the Work Schedules Act. Id. at 3. The Union further argues that under the Work Schedules Act, management rights under § 7106 of the Statute "do not extend to the termination of flexible or compressed work schedules[.]" Id. at 4.
Finally, the Union asserts that the award is contrary to law and fails to draw its essence from the parties' agreement because it is an "unlawful repudiation" of the agreement. [n4] Exceptions at 4. The Union argues that the Arbitrator mistakenly construed Article 20, Sections 3 and 5 of the parties' agreement to reinforce the Agency's management rights to allow the "unilateral no-notice terminations of [AWS]. . . ." Id. at 2. In this regard, the Union alleges that the Arbitrator "improperly characterized" the parties' dispute. Id. at 3.
The Agency argues that the Union has failed to show that the award violated any law, rule or regulation. Citing Authority precedent, the Agency contends that "in the absence of a stipulated issue, an arbitrator's formulation of the issue is awarded substantial deference[.]" Opposition at 5. The Agency contends that the award responds to the issues, as framed by the Arbitrator, and therefore there is no basis upon which to find that the Arbitrator exceeded his authority. The Agency argues further that the Union has failed to show that the award does not draw its essence from the agreement under any of the tests outlined in NTEU, Chapter 231, 51 FLRA 594, 598 (1995).
The Union claims that the award is contrary to law because the Arbitrator's finding that the Union attempted to "`expand the scope of this arbitration proceeding beyond the three issues raised in the August 15th grievance'" is "a misrepresentation of the facts." Exceptions at 4 (quoting Award at 4). The Union has failed to point to any law with which the award is alleged to be in conflict. Therefore, there is no basis on which to find that the award is contrary to law. See AFGE, Local 1840, 45 FLRA 497, 499 (1992) (award [ v59 p408 ] not deficient as contrary to law where excepting party fails to specify law on which the party relies).
To the extent the Union argues that the Arbitrator erred, as a factual matter, in defining the scope of the grievance, the Authority has previously held that an arbitrator's interpretation of the scope of a grievance does not constitute a matter that can be challenged as a nonfact. See, e.g., United States Dep't of Def., Def. Contract Management Agency, (Case No. 0-AR-3564) 59 FLRA No. 57 (Oct. 10, 2003) (Member Pope dissenting in part); AFGE, Local 2142, 46 FLRA 61, 64 (1992). Consequently, there is no basis for finding the award deficient on this ground.
The Union alleges that the Arbitrator's award is contrary to law because the Arbitrator "refused to consider, completely ignored and overlooked" the Agency's obligations under the parties' agreement and the Work Schedules Act. Exceptions at 2. More specifically, the Union asserts that the award is contrary to the Work Schedules Act because it refuses "to recognize that the [Work Schedules Act] requires the `head of the agency' to make a determination of `adverse agency impact' prior to the agency's termination of a negotiated AWS schedule,"; it improperly denies the Union's statutory and contractual notice and bargaining rights; and it fails to recognize that only the Federal Service Impasses Panel (FSIP) has the authority to decide the issue of "adverse agency impact" under § 6131(c)(3)(B) of the Work Schedules Act. Id. at 3. The Union also argues that under the Work Schedules Act, management rights under § 7106 of the Statute "do not extend to the termination of flexible or compressed work schedules[.]" Id. at 4.
When an exception involves an award's consistency with law, the Authority reviews questions of law raised by exceptions and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
A claimed failure to address an issue does not establish that an award is contrary to law. Instead, the Authority has addressed such claims as whether an Arbitrator has exceeded his authority. See, e.g., AFGE, Local 3134, 56 FLRA 1055, 1056 (2001) (contentions that an award was contrary to law and incomplete construed as exceeds authority claims); Police Ass'n of the Dist. of Columbia, 56 FLRA 1097, 1103 (2001) (arbitrator's alleged failure to apply procedural due process construed as an exceeds authority claim). As stated previously, the Union alleges that the award is contrary to law because the Arbitrator "refused to consider, completely ignored and overlooked" the Union's rights under the collective bargaining agreement and the Work Schedules Act. Exceptions at 2. We construe this alleged failure to consider the parties' agreement and the Work Schedules Act as a claim that the Arbitrator exceeded his authority by failing to resolve an issue submitted to arbitration.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). When the parties fail to stipulate the issues, the arbitrator may formulate them on the basis of the subject matter of the grievance. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000) (citations omitted). Such formulations are accorded substantial deference. Id. (Citation omitted).
In this case, the parties did not stipulate to the issues. In the absence of a stipulation, the Arbitrator framed the relevant issue as whether the Agency violated the parties' agreement by adding a third shift. As framed by the Arbitrator, the issue does not implicate the Work Schedules Act, and he was not required to address it. The Arbitrator's award -- that the addition of a third shift was proper under Article 20 -- is directly responsive and properly confined to the contractual issue that he framed. See, e.g., AFGE, Local 987, 50 FLRA 160, 162 (1995) (AFGE, Local 987); United States Dep't of Agriculture, Food Safety & Inspection Serv., W. Region, 36 FLRA 393, 400 (1990). Consequently, we reject all of the Union's various assertions that the award is deficient as contrary to the Work Schedules Act.
Accordingly, we find that the Union has not shown that the award is deficient on the ground that the Arbitrator failed to resolve issues submitted to arbitration and deny the Union's exception.
The Union also claims that the award is contrary to law and fails to draw its essence from the parties' agreement because it constitutes an "unlawful repudiation" of [ v59 p409 ] the parties' agreement. [n5] Exceptions at 4. However, in this connection, the Union has failed to identify any law with which the award is alleged to be in conflict. Accordingly, we reject the Union's contrary to law claim.
In resolving exceptions that challenge an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "essence" standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., SSA, Woodlawn, Md., 54 FLRA 1570, 1579 (1998) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL)). In order for an award to be found deficient as failing to draw its essence from the 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. DOL, 34 FLRA at 575. The Authority and courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
The Arbitrator found that under Article 20 of the parties' agreement, the Agency had a management right to establish the third shift. The Union has not alleged how this finding fails to draw its essence from the parties' agreement because the Union's essence challenge is based on its assertion that there was a termination of AWS and that the award is contrary to the Work Schedules Act. As stated previously, the Arbitrator framed the issue as whether the Agency violated the parties' agreement when it added a third shift and we give his construction of the issue substantial deference. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement.
The Arbitrator also found that Article 36, Section 8(E) "expressly prohibits any attempt by either party to bind local issues of the present grievance to other separate Commands of DCMA that are not parties to the August 15, 2001 grievance." Award at 7. We defer to the Arbitrator's interpretation of the agreement. Accordingly, the Union has not shown that the award fails to draw its essence from the parties' agreement and we deny this exception.
The Union's exceptions are denied.
ARTICLE 20
HOURS OF DUTY
Section 1 - GENERAL
The Agency and the DLA Council agree that within the parameters stipulated in Section 2 and 3, the establishment of work schedules and the administration of this Article are matters for negotiation at the PLFA level.
. . . .
A The following hours of duty provisions are designed to improve employee productivity and organizational performance, provide maximum flexibility, minimum paperwork, and set forth available work schedules within DCMDW.
B. DEFINITIONS
1. ALTERNATE (ALTERNATIVE) WORK SCHEDULES: Means both "flexible work schedules" and "compressed work schedules."
. . . .
Section 3 - WORK SCHEDULES
Subject to the conditions set forth in this Article 20, as supplemented, employees may elect a work schedule that fulfills mission requirements and meets the needs of the employees. These work schedules are a Standard Work Schedule, a Flexible Work Schedule, and a Compressed Work Schedule. Work schedule elections are subject to supervisory approval.
A. Work schedules which provide for a basic workweek and for hours of duty on the same hours each day of the basic workweek shall be established.
. . . .
2. If mission requirements in a specific area are such that an employee needs to work Saturday and/or Sunday as a regularly-scheduled duty day, or a work week to comply with a tour established by a contractor's facility, the SLFA/TLFA Commander/PSE Head has authority to approve a non-standard tour of duty, such as Tuesday- Saturday, Sunday-Thursday, or 4/10 hour days. Documentation [ v59 p410 ] will be maintained at the local level. The approval is on a case-by-case basis and charges for holidays and leave must be in accordance with applicable laws and regulations.
. . . .
Section 5 - ALTERNATIVE WORK SCHEDULES
Alternative Work Schedules (AWS) may be negotiated between PLFAs and DLA Council Locals in accordance with the following provisions:
. . . .
A. The parties stipulate in writing, that they will institute an AWS Program for an initial 6 month trial period.
B. At the end of the trial period, the parties may agree to extend the provisions of the program for a period of time agreed to locally.
C. Governing Requirements for Alternate Work Schedules (AWS)
1. Coverage includes all bargaining unit employees unless specifically excluded based on mission requirements. Election of a flexible or compressed work schedule is contingent upon the ability to ensure coverage in contractor's facilities, i.e., shift operations, contractors work schedules, etc.
2. All elections of AWS work schedules are subject to supervisory approval. In addition, supervisors may take an employee off a flexible or compressed work schedule to meet mission needs. Such changes will generally be of short duration. If the change is involuntary, the employee will normally receive three-day notice of the change and reason for it.
A. Governing Requirements for Alternate Work Schedules (AWS)
1. Coverage includes all bargaining unit employees unless specifically excluded based on mission requirements. Election of a flexible or compressed work schedule is contingent upon the ability to ensure coverage in contractor's facilities, i.e. shift operations, contractors work schedules, etc.
2. All elections of AWS work schedules are subject to supervisory approval. In addition, supervisors may take an employee off a flexible or compressed work schedule to meet mission needs. Such changes will generally be of short duration. If the change is involuntary, the employee will normally receive three- day advance notice of the change and reason for it.
. . . .
ARTICLE 36
GRIEVANCE PROCEDURES
Section 8 - PLFA GRIEVANCE PROCEDURE
. . . .
E. Grievances over the interpretation and/or application of the Master Agreement which are resolved through local PLFA grievance or arbitration procedures shall not be construed as establishing controlling precedent over that portion of the Master Agreement which was at issues and shall be binding only on the DLA Council Local and PLFA involved.
The Union filed a request for permission to supplement the record, attaching a copy of a final arbitration award in another case which the Union states involves the same parties. The Agency filed a response to the Union's request. The Union filed a rebuttal to the Agency's response, to which the Agency filed a response. Arbitration awards are not precedential. See e.g., AFGE, Local Union No. 171, 58 FLRA 469, 471 (2003). Consequently, we deny the Union's request and have not considered any of the parties' supplemental submissions.
Relevant provisions of the parties' agreement are set forth in the Appendix to this decision.
The Arbitrator framed two other issues as well. Since these issues are not the subject of exceptions, they will not be addressed in this decision.
The Union submitted an attachment to its exceptions in support of its claim of unlawful repudiation. The Agency argued that the Authority should not consider the attachment because it had not been presented to the Arbitrator. As there is no evidence that the attachment was presented to the Arbitrator, we will not consider it pursuant to § 2429.5 of the Authority's Regulations.
In this regard, nothing in the record indicates that a claim of a statutory unfair labor practice was raised in this case.