24:0516(58)AR - Air Force Space Division, Los Angeles AFS, CA and AFGE Local 2429 -- 1986 FLRAdec AR



[ v24 p516 ]
24:0516(58)AR
The decision of the Authority follows:


 24 FLRA No. 58
 
 AIR FORCE SPACE DIVISION, 
 LOS ANGELES AIR FORCE STATION, 
 CALIFORNIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2429
 Union
 
                                            Case No. 0-AR-1027
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator E. Lad Sabo filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance alleged that the Activity violated the merit promotion
 provisions of the parties' collective bargaining agreement and the local
 negotiated merit promotion plan when particular vacancy was filled
 through the Air Force-wide Comptroller Civilian Career Management
 Program (CCCMP) rather than through local promotion procedures.  The
 parties agreed that the Arbitrator would frame the issue and each party
 submitted its version of the issue for consideration.
 
    The Activity's version was as follows:
 
          Whether Grievant, an Employee represented by AFGE, Local 2429,
       was properly considered for the position of GS-560-12, Budget
       Analyst in ACBI, a position designated a headquarters Air Force
       career program position, under Merit Promotion Cert.
       OCPO-C-84-239?  If not, what should the remedy be?
 
    The Union's version of the issue was:
 
          1.  Whether the Collective Bargaining Agreement and the
       negotiated Space Division Merit Promotion Plan, dated 5 January
       1983, contain any provisions for excluding bargaining unit
       positions which management has identifed for the Comptroller
       Civilian Career Management Program (CCCMP) or any other career
       program?
 
          2.  Whether Management violated the Collective Bargaining
       Agreement and the negotiated space Division Merit Promotion Plan,
       dated 5 January 1983, in the filling of the GS-560-13 Budget
       Analyst position, which is a bargaining unit position.
 
    After considering these statements, the Arbitrator framed the issue
 based on the nature of the grievance as follows:
 
          Did the Employer violate the Collective Bargaining Agreement
       and the Space Division Merit Promotion Plan in the filling of a
       Bargaining Unit Position, Budget Analyst, GS-560-13, SD/ACBI, Los
       Angeles AF Station, CA PEP #560-13-N-BGT-A?
 
    In elaborating on the nature of the grievance and the issue to be
 decided, the Arbitrator expressly noted the responses of the Activity in
 denying the grievance at the initial steps of the grievance procedure.
 In particular, he quoted a portion of the Activity's step 1 answer which
 essentially maintained that GS-560-13 budget analyst positions are CCCMP
 positions which are governed by agency regulation and that therefore
 such positions are excluded from coverage under the local merit
 promotion procedures.  The Arbitrator further quoted the Activity's Step
 3 answer which similarly maintained that the Activity's local merit
 promotion procedures do not apply to CCCMP positions.
 
    After evaluating the evidence presented, the Arbitrator determined
 that management's position on the coverage of the merit promotion
 provisions of the parties' agreement was not supported.  Based on the
 requested finding of the Union, the Arbitrator consequently ruled that
 the Activity violated the terms of the parties' collective bargaining
 agreement and rendered the following award:
 
          The Employer violated the Collective Bargaining Agreement and
       the Space Division Merit Promotion Plan in the filling of a
       Bargaining Unit Position, Budget Analyst, GS-560-13, SD/ACBI, Los
       Angeles AF Station, CA PEP #560-13-N-BGT-A.
 
          Remedy:  The Employer is ordered to comply with the terms of
       the Labor Agreement on any and all future openings pursuant to the
       locally negotiated Labor Agreement.
 
                              III.  EXCEPTION
 
    In its exception, the Agency contends that the award is deficient
 because the Arbitrator exceeded his authority by issuing an affirmative
 remedy applicable to selection actions other than the specific action
 which formed the basis of the grievance.  In support of this exception,
 the Agency cites the Authority's decision in U.S. Department of Justice,
 Federal Prison System, Federal Correctional Facility, Fort Worth, Texas
 and American Federation of Government Employees, Local 1298, AFL-CIO, 17
 FLRA 278 (1985), and maintains that like the arbitrator in that case,
 the Arbitrator in this case exceeded his authority by addressing "any
 and all future openings" when his authority was confined to the specific
 selection action in dispute.  The Agency also cites the decision in
 American Federation of Government Employees, AFL-CIO, National
 Immigration and Naturalization Service Council and U.S. Immigration and
 Naturalization Service, 15 FLRA 355 (1984), and maintains that the
 Arbitrator in this case exceeded his authority by extending the remedy
 beyond that necessary to make the grievant whole.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the Arbitrator did not exceed his authority.
 
    The Authority has specifically held that an arbitrator's award will
 be found deficient as in excess of the arbitrator's authority when the
 arbitrator resolves an issue not submitted to arbitration.  See Federal
 Correctional Facility, Fort Worth, Texas, 17 FLRA at 279.  But the
 Authority, like the Federal courts, will accord an arbitrator's
 interpretation of a submission agreement and an arbitrator's formulation
 of the issue submitted in the absence of a stipulation the same
 substantial deference accorded an arbitrator's interpretation and
 application of the collective bargaining agreement.  For example, Mobil
 Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982).
  In particular, the Federal courts permit an arbitrator to extend the
 award to issues that necessarily arise from the issues specifically
 included in a submission agreement or the arbitrator's formulation of
 the issues submitted in absence of a stipulation by the parties.  See
 Kansas City Luggage and Novelty Workers Union Local No. 66 v. Neevel
 Luggage Mfg. Co., 325 F.2d 992, 994 (8th Cir. 1964).  Both the Authority
 and the Federal courts have consistently emphasized the broad discretion
 to be accorded arbitrators in the fashioning of appropriate remedies.
 For example, U.S. Department of Justice, Bureau of Prisons, Federal
 Correctional Institution, Lexington, Kentucky and American Federation of
 Government Employees, Local 817, 21 FLRA No. 108 (1986);  IAM District
 776 v. Texas Steel Co., 639 F.2d 279 (5th Cir. 1981).
 
    In this case, we conclude that the award and remedy of the Arbitrator
 is not in excess of his authority.  Instead, the Agency's exception
 essentially disagrees with the Arbitrator's formulation of the issues
 submitted and with the Arbitrator's fashioning of a remedy for
 management's violation of the agreement.  In view of the substantial
 deference accorded arbitrators, the exception provides no basis for
 finding the award deficient.  In concluding that the Agency is merely
 disagreeing with the Arbitrator's formulation, we note the Arbitrator's
 refusal to adopt the Activity's formulation of the issue, which would
 have expressly limited the matter to the grievant and the specific
 selection action, and further note the extent of this matter as
 considered and litigated by the parties.  The parties themselves, as
 evidenced by the Union's statement of the issue and requested remedy and
 the Activity's step 1 and 3 answers, have indicated that this matter
 extended to whether the promotion procedures of the parties' collective
 bargaining agreement and negotiated merit promotion plan covered
 selections for career program vacancies.  Thus, we conclude that the
 Arbitrator appropriately viewed the dispute before him as encompassing
 the question as to whether career program vacancies were excluded from
 coverage of the parties' agreement and negotiated merit promotion plan.
 
    In contrast to National INS Council, on which the Agency relies, the
 Arbitrator in this case has not improperly transformed the proceeding
 into a "sort of class action." 15 FLRA at 356.  To the contrary, when a
 matter in dispute concerns a management practice and policy generally
 applicable to the entire bargaining unit, federal courts have
 specifically viewed the arbitrator's authority to be quite broad and
 have upheld relief from the disputed employment practice or policy which
 encompasses similarly situated employees.  See IAM District 776 v. Texas
 Steel Co., 639 F.2d 279 (5th Cir. 1981);  Shahmoon Industries v. United
 Steelworkers of America, 263 F.Supp. 10 (D.N.J. 1966).  Likewise, in
 contrast to Federal Correctional Facility, Fort Worth, 17 FLRA 278
 (1985) on which the Agency also relies, where the issue necessarily was
 one of just cause for the discipline of an individual employee, careful
 review of the pertinent aspects of the record in this case does not
 evidence a limitation on the authority of the Arbitrator to consider the
 filling of only the budget analyst position which precipitated the
 grievance.