36:0393(47)AR - - Agriculture, Food Safety and Inspection Service, Western Region and National Joint Council of Food Inspection Locals, Southwest Council, Local 925, AFGE - - 1990 FLRAdec AR - - v36 p393



[ v36 p393 ]
36:0393(47)AR
The decision of the Authority follows:


36 FLRA No. 47

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION SERVICE

WESTERN REGION

(Activity)

and

NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS

SOUTHWEST COUNCIL

LOCAL 925

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-1803

DECISION

July 20, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Philip Tamoush. The Union filed a grievance claiming that the Activity violated a Memorandum of Understanding (MOU) between the parties in its selections for three vacant positions. The Arbitrator found that the Activity did not violate the MOU in filling the three vacancies. However, the Arbitrator found that the Activity violated the MOU when it did not provide "full consideration" to certain applicants.

The Union and the Food Safety Inspection Service (the Agency) filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.

We conclude that the Agency and Union both fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In 1986 the Agency determined to convert its workforce of food inspectors to food technologists on a gradual basis. The Agency and the Union negotiated a Memorandum of Understanding (MOU) to deal with the conversion of food inspector positions (1863 occupational series) to food technologist positions (1382 occupational series). When the Activity failed to select bargaining-unit food inspector applicants for three vacancies for food technologist positions, the Union filed a grievance claiming that the Activity had violated paragraph C of the MOU. The grievance was not resolved and was submitted to arbitration.

According to the Arbitrator, the relevant provisions of the MOU provide:

C. Effective October 1, 1986, all targeted 1382 vacant positions will be advertised in both 1863 and 1382 series; concurrently with a request for an OPM Certificate for 1382. If no acceptable 1382 applicants are available from either source, the position will be filled from the qualified 1863 processing [bargaining-unit] applicants.

2. Full consideration will be given to those processing applicants who are close to meeting the position education requirements for the 1382 occupation.

Arbitrator's Award at 3.

The Union argued before the Arbitrator that under the MOU, food inspectors who meet the experience requirements and who meet or are "close" to meeting the educational requirements of 30 college semester hours credit in food science for the food technologist position are entitled to be selected over external candidates for food technologist positions when their qualifications are at least equal to those of the external candidates. The Union maintained that the Activity had failed to grant internal food inspector applicants this selection preference provided by the MOU and that the Activity should be required to rerun the disputed selection actions and accord the internal food inspector applicants the required preference.

The Activity disputed the Union's position. The Activity argued that the MOU does not provide a selection priority or preference in favor of internal food inspector applicants. The Activity further argued that food inspectors who had not met the educational requirement for the food technologist position, but were only "close," had no selection priority or preference and could not even be considered for the position of food technologist. The Activity maintained that until a food inspector met the educational qualification standard, that food inspector could only be considered under the food inspector announcement. The Activity asserted that if this view were rejected, the grievance should still be denied because the evidence did not permit a finding on a food inspector's eligibility to be considered "close."

In the absence of a joint stipulation of the issue submitted, the Arbitrator framed the issue as follows: "Did the [Activity] violate the July 29, 1986 Memorandum of Understanding when it filled three vacant positions in Colorado? If so, what is the appropriate remedy?" Id. at 2.

The Arbitrator found that the Activity did not violate the MOU when it failed to select internal food inspector applicants for the three disputed vacancies. In this regard, the Arbitrator determined that the language of the MOU did not support the Union's position. However, the Arbitrator did find that the Activity violated paragraph C(2) of the MOU when it failed to provide "full consideration" to internal food inspector applicants for the food technologist position vacancies who were "close" to meeting the educational requirements. To remedy the violation of paragraph C(2), the Arbitrator ordered the parties to negotiate a definition of "close" and the Activity to consider retroactively internal applicants who were close to meeting the educational requirements for the disputed food inspector vacancies.

Specifically, the Arbitrator awarded, as follows:

1. The [Activity] did not violate the July, 1986 MOU when it filled three vacancies in [Colorado].

2. However, it did violate paragraph C.2 when it did not provide "full consideration" to those Food Inspector applicants for Food Technologist targeted vacancies who were "close" to meeting the positive educational requirements for the 1382 occupation.

3. The [Activity] is ordered to permit applicants for the three vacancies who are "close" to meeting the educational requirements to apply for the vacant positions, retroactively, for the record. Such application will provide appropriate retroactive consideration for vacancies since that time.

4. The Parties are ordered to negotiate forthwith a definition of "close to" in terms of specific requirements which have to be met prior to acceptance of the application.

Failing negotiation of an agreement in this regard, either Party may submit in writing, within 60 days of the date of this Award, the request that the Arbitrator determine the resolution of this specific issue.

Id. at 11.

III. Agency's Exceptions

A. Contentions

The Agency contends that the Arbitrator exceeded his authority and that the award does not draw its essence from the parties' collective bargaining agreement.

The Agency agrees with paragraph 1 of the award. The Agency states that this paragraph is directly responsive to the issue as the Arbitrator framed it. However, the Agency contends that the Arbitrator exceeded his authority in making the finding set forth in paragraph 2 of the award and in ordering the remedies set forth in paragraphs 3-4 of the award because this finding and these remedies go beyond the issue as the Arbitrator framed it. Although the Agency concedes that the matter of consideration of internal food inspector applicants who were close to completion of the educational requirements was raised at the hearing before the Arbitrator, the Agency argues that the matter was only raised in relation to the issue as framed by the Arbitrator, which issue does not refer to such matters. In the Agency's view, the issue as framed by the Arbitrator was resolved in paragraph 1 of the award and the Arbitrator's failure to stop at paragraph 1 departed from the condition precedent expressed in the Arbitrator's statement of the issue presented and caused him to decide matters not before him. In support of its view, the Agency cites the Authority's decision in Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986) (AFGE Local 2798).

The Agency also contends that by ordering the parties to negotiate a definition of "close," the Arbitrator exceeded his authority and the award fails to draw its essence from the collective bargaining agreement. The Agency cites to Article XXXIII, Section B of the parties' collective bargaining agreement and quotes from it, as follows:

4. In considering the case, the arbitrator shall have authority to define the explicit terms of this Agreement. However, he shall have no authority to add to or modify any terms of the Agreement.

In the Agency's view, a definition of "close," whether reached through negotiations or by the determination of the Arbitrator, will have the effect of modifying the MOU. Therefore, the Agency asserts that the Arbitrator has disregarded Article XXXIII, Section B(4) and his award does not draw its essence from the collective bargaining agreement. The Agency also asserts that Article XXXIII, Section B(4) constitutes an express limitation on the Arbitrator's authority and that he exceeded that authority by ordering the parties to negotiate a matter rather than applying the MOU as negotiated. In support of this view, the Agency cites the decisions in City Electric v. Local Union 77, IBEW, 517 F.2d 616 (9th Cir. 1975) (City Electric) and Local 491, IUE v. Magnavox Co., 286 F.2d 465 (6th Cir. 1961) (Magnavox).

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator exceeded his authority or that the award does not draw its essence from the parties' collective bargaining agreement.

We conclude that the Arbitrator's determination that the Activity violated paragraph C(2) and his provision of an appropriate remedy in paragraphs 3-4 of the award for the violation do not go beyond the issue framed by the Arbitrator or submitted by the parties. In the absence of a stipulation of the issue by the parties, the Arbitrator framed the issue as whether the Activity violated the MOU in filling the disputed vacancies. The Arbitrator's determination that the Activity violated paragraph C(2) and his provision of a remedy are directly responsive and confined to the Arbitrator's statement of the issue. See U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and American Federation of Government Employees, Local 48, Bremerton Metal Trades Council, 35 FLRA 340 (1990) (Puget Sound Naval Shipyard). As the Activity's post-hearing brief to the Arbitrator extensively addresses paragraph C(2) and the lack of evidence to determine the application of the term "close," we also find that the issue of the interpretation and application of paragraph C(2) was fully submitted to the Arbitrator by the parties and was not limited as claimed by the Agency. See Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 33 FLRA 592 (1988) (Navy Public Works Center).

Because the Arbitrator's determination that the Activity violated paragraph C(2) and his provision of an appropriate remedy are responsive to the issue, as framed by the Arbitrator and submitted by the parties through their case presentations, we reject the Agency's claim that the wording of the Arbitrator's determination in paragraph 1 of his award precluded the Arbitrator from addressing the interpretation and application of paragraph C(2) of the MOU. Applying the principle that an arbitrator's formulation and interpretation of the issue submitted is due substantial deference, we conclude that the Arbitrator did not exceed his authority by resolving the issue concerning paragraph C(2) of the MOU. See id. at 598. The Agency is merely disagreeing with the Arbitrator's interpretation of the issue before him. See Puget Sound Naval Shipyard, 35 FLRA at 343.

We find that the Agency's reliance on AFGE Local 2798 is misplaced. In that case, the arbitrator awarded remedial relief although he found no violations of law, regulation, or the collective bargaining agreement resulting from the termination of the grievant. Unlike AFGE Local 2798, the Arbitrator in this case properly addressed the application of paragraph C(2) of the MOU in the Activity's consideration of food inspector applicants after he had found that the disputed selections did not violate the MOU. See Navy Public Works Center, 33 FLRA at 598 (Authority concluded that the arbitrator was authorized to address overtime assignments in general despite the arbitrator's finding that the overtime assignment in the specific disputed work situation did not violate the collective bargaining agreement).

We also conclude that the Agency fails to establish that, by ordering the parties to negotiate a definition of the term "close," the Arbitrator exceeded his authority and the award does not draw its essence from the collective bargaining agreement. We reject the Agency's claim that a definition of "close" will have the effect of modifying the MOU in disregard of Article XXXIII, Section B(4). Section B(4) expressly provides that an arbitrator has the authority to define the explicit terms of the agreement. Because "close" is an explicit term of the MOU, we find that the Agency fails to demonstrate that a definition of an explicit term of the MOU modifies the MOU in disregard of Article XXXIII, Section B(4). The Agency's contention provides no basis for finding that the award fails to draw its essence from the collective bargaining agreement under any of the tests applied by the Authority. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

We also reject the Agency's claim that Section B(4) constitutes an express limitation on the Arbitrator's authority that he exceeded by ordering the parties to negotiate a matter rather than applying the MOU as negotiated. We are not persuaded that the Arbitrator exceeded his authority by directing that the parties negotiate a definition while providing that he would resolve the issue on the request of either party in the event the parties could not agree. In view of the considerable discretion granted arbitrators in the fashioning of remedies and in view of the Activity's argument that the evidence did not permit a basis on which to determine a food inspector's eligibility to be considered "close" to meeting the educational requirements, we conclude that the Agency's claim provides no basis for finding the award deficient. Viewing the award in this manner, we find that the Agency's reliance on City Electric and Magnavox is misplaced. In contrast to the Arbitrator in this case, the arbitrator in City Electric ordered bargaining on a matter not addressed in the parties' collective bargaining agreement. Similarly, the arbitrator in Magnavox ordered surveys that were beyond the scope of the issue submitted and were not related to an application of the parties' collective bargaining agreement.

Accordingly, we will deny the Agency's exceptions.

IV. Union's Exception

A. Position of the Parties

The Union contends that the award is deficient because the Arbitrator failed to answer the most significant issue presented to him and misconstrued the other issue submitted. The Union argues that the Arbitrator essentially fashioned an award which answered questions not posed by either party while ignoring the question that was posed by the parties.(*)

The Agency contends that the Union's exception constitutes nothing more than a disagreement with the Arbitrator's interpretation of the MOU and his formulation of the issue and provides no basis for finding the award deficient.