Delaware National Guard, Wilmington, Delaware (Activity) and Association of Civilian Technicians, Delaware Chapter (Union)

 



[ v05 p50 ]
05:0050(9)AR
The decision of the Authority follows:


 5 FLRA No. 9
 
 DELAWARE NATIONAL GUARD
 WILMINGTON, DELAWARE
 Activity
 
 and
 
 ASSOCIATION OF CIVILIAN
 TECHNICIANS, DELAWARE
 CHAPTER
 Union
 
                                            Case No. 0-AR-86
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR ALEXANDER M. FREUND FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE PARTIES SUBMITTED A GRIEVANCE TO
 ARBITRATION "INVOLV(ING) A DISPUTE AS TO THE INTERPRETATION OF THE
 CONTRACT LANGUAGE 'STANDARD CIVILIAN ATTIRE.'" SPECIFICALLY, IN THEIR
 SUBMISSION AGREEMENT THE PARTIES STIPULATED THE UNRESOLVED ISSUES TO BE
 PRESENTED TO THE ARBITRATOR AS FOLLOWS:
 
    IS (THE ACTIVITY) CORRECT IN (ITS) INTERPRETATION OF THE CONTRACT
 WHEREBY BARGAINING UNIT
 
    EMPLOYEES MAY ONLY WEAR STANDARD CIVILIAN ATTIRE OF COMMON DESIGN AND
 STYLE . . . ?
 
    IS (THE UNION) CORRECT IN (ITS) INTERPRETATION OF THE CONTRACT
 WHEREBY BARGAINING UNIT
 
    EMPLOYEES MAY WEAR CIVILIAN ATTIRE AS LONG AS IT IS CONSISTENT WITH
 SECTION 7 OF ARTICLE XXV
 
    (RELATING TO ATTIRE AND GROOMING) . . . ?
 
    AT ARBITRATION THE UNION ARGUED THAT THE MEANING OF THE TERM
 "STANDARD CIVILIAN ATTIRE," AS USED IN ARTICLE XXV OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, WAS THAT CIVILIAN ATTIRE WAS
 STANDARDIZED ONLY WITH RESPECT TO COLOR.  THE ACTIVITY ARGUED THAT THIS
 TERM MEANT THAT "AN UNDIVERSIFIED AND STANDARDIZED CIVILIAN UNIFORM
 (WAS) TO BE WORN BY ALL."
 
    IN RESOLVING THIS DISPUTE, THE ARBITRATOR FIRST REVIEWED THE
 SUBSECTIONS OF SECTION 7 OF ARTICLE XXV OF THE AGREEMENT.  HE FOUND THE
 UNION'S ARGUMENT "UNPERSUASIVE BECAUSE SUBSECTION 7-A SIMPLY DOES NOT
 SAY THAT CIVILIAN ATTIRE SHALL BE STANDARD IN RESPECT TO COLOR ONLY." HE
 FURTHER EMPHASIZED THAT "IF THE LANGUAGE 'STANDARD CIVILIAN ATTIRE' WAS
 INTENDED TO REFER TO STANDARDIZATION OF COLOR ONLY, THERE WOULD HAVE
 BEEN NO NEED FOR THAT LANGUAGE, SINCE SUBSECTIONS 7-C THROUGH 7-J
 SPECIFY THE COLOR COMBINATIONS EMPLOYEES ARE REQUIRED TO WEAR."
 MOREOVER, THE ARBITRATOR RECOGNIZED THAT WHEN THE PARTIES BEGAN THEIR
 NEGOTIATIONS, THE TERM "STANDARD CIVILIAN ATTIRE" HAD BEEN REFERRED TO
 IN A NUMBER OF DECISIONS OF THE FEDERAL SERVICE IMPASSES PANEL INVOLVING
 OTHER NATIONAL GUARD ACTIVITIES.  THE PANEL HAD REFERRED TO "STANDARD
 CIVILIAN ATTIRE" AS A "CIVILIAN UNIFORM," AND AS ATTIRE, "STANDARD IN
 DESIGN AND COLOR." THE ARBITRATOR ALSO FOUND, BASED ON TESTIMONY BEFORE
 HIM, THAT THESE DECISIONS WERE KNOWN TO THE PARTIES AT THE TIME THEY
 WERE NEGOTIATING THEIR AGREEMENT.  THUS, THE ARBITRATOR OBSERVED THAT
 THE LANGUAGE IN QUESTION HAD A SPECIFIC MEANING THAT WAS KNOWN TO
 MANAGEMENT AND THE UNION.  ACCORDINGLY, THE ARBITRATOR "UPHELD" THE
 ACTIVITY'S INTERPRETATION AND RULED THAT WHEN THE PARTIES AGREED TO THE
 CONTRACT LANGUAGE "STANDARD CIVILIAN ATTIRE," IT WAS UNDERSTOOD THAT
 BARGAINING UNIT EMPLOYEES WOULD BE REQUIRED TO WEAR A CIVILIAN UNIFORM.
 
    WITH RESPECT TO A REMEDY, THE ARBITRATOR NOTED THAT "THE PROBLEM
 WHICH GAVE RISE TO THE GRIEVANCE APPEARS TO INVOLVE COMFORT ITEMS"
 (IDENTIFIED IN THE AGREEMENT AS ITEMS SUCH AS SWEATERS AND JACKETS).
 THE ARBITRATOR NOTED THAT THE ACTIVITY HAD REQUESTED AS A REMEDY THAT
 THE EMPLOYEES BE DIRECTED TO OBTAIN SUCH ITEMS FROM ONE SOURCE IN ORDER
 TO ASSURE UNIFORMITY OF DRESS.  IN REFUSING SUCH A REMEDY, THE
 ARBITRATOR RULED THAT IT WAS SUFFICIENT THAT THE ACTIVITY'S
 INTERPRETATION OF THE AGREEMENT WAS BEING UPHELD BECAUSE EMPLOYEES
 WOULD
 BE OBLIGATED TO COMPLY WITH THAT INTERPRETATION.  THEREFORE, THE
 ARBITRATOR'S AWARD WAS AS FOLLOWS:
 
    THE GRIEVANCE IS DENIED.  THE EMPLOYER'S INTERPRETATION OF SECTION 7
 IS UPHELD:  THE INTENT
 
    OF THE LANGUAGE "STANDARD CIVILIAN ATTIRE" IS A CIVILIAN UNIFORM.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD IS CONTRARY
 TO EXISTING LAW.  IN SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS THAT
 THE ARBITRATOR "ABRIDGED THE RIGHTS OF THE (UNION) FOUND IN 5 U.S.C.
 7119(A), (B) AND (C)" /2/ BY APPLYING THE FEDERAL SERVICE IMPASSES
 PANEL'S DEFINITION OF "STANDARD CIVILIAN ATTIRE" TO THE CONTRACT DISPUTE
 IN THIS CASE.  THE UNION ARGUES THAT IT WAS IMPROPER FOR THE ARBITRATOR
 TO IMPOSE THE PANEL'S DEFINITION ON THE PARTIES WHEN THEY HAD AGREED TO
 THEIR OWN DEFINITION.  THE UNION FURTHER MAINTAINS THAT PANEL
 DETERMINATIONS ONLY HAVE "PRECEDENTIAL APPLICATION" TO THE ISSUES AND
 PARTIES DIRECTLY BEFORE THE PANEL.
 
    THE UNION'S EXCEPTION THAT THE AWARD IS CONTRARY TO LAW STATES A
 GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
 7122(A)(1) OF THE STATUTE.  HOWEVER, IN THIS CASE THE UNION DOES NOT
 DEMONSTRATE IN WHAT MANNER THE AWARD IS CONTRARY TO LAW.  IN PARTICULAR,
 THE UNION HAS FAILED TO SHOW THAT THE ARBITRATOR'S AWARD IS CONTRARY TO
 SECTION 7119 OF THE STATUTE.  THE UNION HAS PRINCIPALLY ASSERTED THAT
 THE ARBITRATOR VIOLATED SECTION 7119 BY "IMPOSI(NG) . . . THE PANEL'S
 CONSTRUCTION OF DEFINITIONS . . . WHEN IN FACT, THE PARTIES HAD AGREED
 TO THEIR OWN DEFINITION DURING NEGOTIATIONS." HOWEVER, AS WAS NOTED, THE
 ARBITRATOR, RATHER THAN "IMPOSI(NG)" THE PANEL'S DEFINITION, RESOLVED
 THE PARTIES' DISPUTE BY DETERMINING PRECISELY THE MEANING OF THE
 CONTRACT LANGUAGE THEY "HAD AGREED TO . . . DURING NEGOTIATIONS." THUS,
 THE ARBITRATOR IN HIS AWARD SPECIFICALLY UPHELD THE ACTIVITY'S
 INTERPRETATION OF THE LANGUAGE IN DISPUTE.  FURTHERMORE, THE ARBITRATOR
 SPECIFICALLY RULED THAT, WHEN THE PARTIES AGREED TO THE LANGUAGE
 "STANDARD CIVILIAN ATTIRE," BOTH MANAGEMENT AND THE UNION UNDERSTOOD AS
 THEIR AGREEMENT THAT EMPLOYEES WOULD BE REQUIRED TO WEAR A CIVILIAN
 UNIFORM.  THE ARBITRATOR, AS AN AID IN DETERMINING WHAT THE PARTIES "HAD
 AGREED TO . . . DURING NEGOTIATIONS," DID OBSERVE THAT THE CONTRACT
 LANGUAGE AGREED TO HAD A SPECIFIC MEANING FROM THE PANEL DECISIONS THAT
 WAS WELL KNOWN TO BOTH MANAGEMENT AND THE UNION AT THE TIME OF THEIR
 NEGOTIATIONS.  HOWEVER, THIS PROVIDES NO BASIS FOR FINDING THE AWARD
 CONTRARY TO SECTION 7119.  IT IS WELL ESTABLISHED THAT AN ARBITRATOR MAY
 PROPERLY DRAW FROM ANY RELEVANT SOURCE AS AN AID IN INTERPRETING A
 COLLECTIVE BARGAINING AGREEMENT.  UNITED STEELWORKERS OF AMERICA V.
 WARRIOR & GULF NAVIGATION CO., 363 U.S. 574, 578-82(1960);  UNITED
 STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593,
 597(1960);  HUMBLE OIL & REFINING CO. V. LOCAL 886, INTERNATIONAL
 BROTHERHOOD OF TEAMSTERS, 447 F.2D 229, 232-33 (2D CIR. 1971);  UAW V.
 WHITE MOTOR CORP., 505 F.2D 1193, 1197-98 (8TH CIR. 1974).  THIS IS
 PRECISELY WHAT THE ARBITRATOR DID IN THIS CASE, LOOKING TO DECISIONS OF
 THE PANEL KNOWN TO THE PARTIES DURING NEGOTIATIONS, AS WELL AS TO THE
 CONTRACT LANGUAGE UPON WHICH THEY ULTIMATELY AGREED.  CONSEQUENTLY, THE
 UNION IN ITS EXCEPTION AND SUPPORTING ASSERTIONS IS DISAGREEING WITH THE
 ARBITRATOR'S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT,
 WHICH DOES NOT CONSTITUTE A BASIS FOR FINDING THE AWARD DEFICIENT.
 UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA
 NO. 60(1980).  THEREFORE, THE UNION'S FIRST EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S
 AWARD IS INCOMPLETE AND AMBIGUOUS.  IN SUPPORT OF THIS EXCEPTION THE
 UNION ASSERTS THAT THE AWARD IS AMBIGUOUS BECAUSE A QUESTION REMAINS AS
 TO WHICH PARTY THE ARBITRATOR WAS REFERRING TO WHEN HE DENIED THE
 GRIEVANCE.  IN THIS RESPECT, THE ARBITRATOR WAS REFERRING TO WHEN HE
 DENIED THE GRIEVANCE.  IN THIS RESPECT, THE UNION MAINTAINS THAT THE
 PARTIES AGREED THE ACTIVITY WOULD BE THE GRIEVANT IN THE DISPUTE.  THE
 UNION FURTHER ARGUES THAT THE AWARD IS INCOMPLETE AND AMBIGUOUS BECAUSE
 THE ARBITRATOR HAS LEFT THE PARTIES WITH "UNACCEPTABLE TERMS WHICH WILL
 NOT SETTLE THE INITIAL DISPUTE." THE UNION THEN SPECULATES THAT AS A
 RESULT IT "APPEARS THAT THE PARTIES ARE COMPELLED TO RETURN TO THE
 BARGAINING TABLE" WHICH IT ASSERTS WOULD BE CONTRARY TO SECTION
 7114(B)(5) AND SECTION 7117 OF THE STATUTE CONCERNING THE DUTY TO
 BARGAIN IN GOOD FAITH.  THE UNION ALTERNATIVELY SPECULATES THAT "THE
 AWARD WOULD LEND ITSELF TO VIOLATIONS" OF SECTION 7116(A) OF THE STATUTE
 CONCERNING AGENCY UNFAIR LABOR PRACTICES.
 
    THE AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT UNDER SECTION
 7122(A)(2) OF THE STATUTE WHEN IT IS INCOMPLETE, AMBIGUOUS, OR
 CONTRADICTORY SO AS TO MAKE IMPLEMENTATION OF THE AWARD IMPOSSIBLE.
 VETERANS ADMINISTRATION HOSPITAL, NEWINGTON, CONNECTICUT AND NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109, 5 FLRA NO. 12(1981).
 HOWEVER, THE UNION HAS PROVIDED NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE UNION HAS ONLY ASSERTED THAT A QUESTION REMAINS AS TO
 WHICH PARTY THE ARBITRATOR WAS REFERRING TO WHEN HE DENIED THE GRIEVANCE
 AND HAS SURMISED THAT THE AWARD "LEND(S) ITSELF" TO VARIOUS VIOLATIONS
 OF THE STATUTE AS A RESULT OF ITS ASSERTED INCOMPLETENESS AND AMBIGUITY.
  HOWEVER, AS HAS BEEN NOTED, THE PARTIES STIPULATED THE ISSUE TO BE
 RESOLVED BY THE ARBITRATOR AS WHICH PARTY WAS CORRECT IN ITS
 INTERPRETATION OF THE CONTRACT LANGUAGE IN DISPUTE.  THE ARBITRATOR
 COMPLETELY AND UNAMBIGUOUSLY RESOLVED PRECISELY THAT ISSUE WHEN AS HIS
 AWARD THE ARBITRATOR "UPHELD" THE ACTIVITY'S INTERPRETATION OF THE
 DISPUTED LANGUAGE.  MOREOVER, IN RECOGNITION THAT "THE PROBLEM WHICH
 GAVE RISE TO THE GRIEVANCE APPEARS TO INVOLVE COMFORT ITEMS," THE
 ARBITRATOR SPECIFICALLY REJECTED THE REQUESTED REMEDY OF THE ACTIVITY
 THAT HE DIRECT EMPLOYEES TO OBTAIN SUCH ITEMS FROM ONE SOURCE IN ORDER
 TO ASSURE UNIFORMITY OF DRESS.  INSTEAD, THE ARBITRATOR ADVISED THAT IT
 WAS SUFFICIENT THAT THE ACTIVITY'S INTERPRETATION OF THE AGREEMENT WAS
 BEING UPHELD BECAUSE EMPLOYEES WOULD BE OBLIGATED TO COMPLY WITH THAT
 INTERPRETATION.  IN THESE CIRCUMSTANCES, THE UNION HAS FAILED TO
 DEMONSTRATE THAT THE AWARD IS INCOMPLETE OR THAT THE AWARD IS AMBIGUOUS
 OR THAT IMPLEMENTATION OF THE AWARD IS IMPOSSIBLE AS A RESULT OF THE
 AWARD BEING "UNCLEAR IN ITS MEANING AND EFFECT" OR BEING "TOO UNCERTAIN
 IN (ITS) EFFECT TO BE (SUSTAINED)." VETERANS ADMINISTRATION HOSPITAL,
 SUPRA AND THE PRIVATE SECTOR CASES CITED THEREIN.  THEREFORE, THIS
 EXCEPTION CONTENDING THAT THE AWARD IS INCOMPLETE AND AMBIGUOUS PRESENTS
 NO BASIS FOR FINDING THE AWARD DEFICIENT.  CONSEQUENTLY, THE UNION'S
 ASSERTIONS SPECULATING VARIOUS POTENTIAL VIOLATIONS OF THE STATUTE
 PREMISED SOLELY ON THE AWARD BEING INCOMPLETE AND AMBIGUOUS LIKEWISE
 PRESENT NO BASIS FOR FINDING THE AWARD DEFICIENT.  THUS, THE UNION'S
 SECOND EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (O