24:0516(58)AR - Air Force Space Division, Los Angeles AFS, CA and AFGE Local 2429 -- 1986 FLRAdec AR
[ v24 p516 ]
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.