37:0309(20)AR - - Treasury, Customs Service and NTEU - - 1990 FLRAdec AR - - v37 p309



[ v37 p309 ]
37:0309(20)AR
The decision of the Authority follows:


37 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

(Activity)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-1781

DECISION

September 14, 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 Howard G. Foster. A grievance was filed contesting the grievant's 5-day suspension for failing to carry out properly assigned duties and for rudeness. The Arbitrator found that the suspension was not for such cause as will promote the efficiency of the Service and rescinded the suspension.

The Activity filed exceptions 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 Union filed an opposition to the exceptions.

We conclude that the Activity's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant in this case is a canine enforcement officer. Although his regular tour of duty is 8:00 a.m. to 5:00 p.m., the position involves regular and recurring overtime. On the afternoon of November 22, 1988, the grievant's supervisor informed the grievant that the grievant would have to work overtime that evening. The grievant told his supervisor that he was exhausted and could not work overtime that night. Later in the afternoon, the grievant spoke on the telephone with his supervisor's supervisor who insisted that the grievant report for overtime, as ordered, because of the staffing needs of the operation. The grievant said he could not work, ended the conversation, and failed to work overtime as directed. By the end of his tour of duty on November 22, the grievant had worked 26 of the previous 33 hours. The Activity suspended the grievant for 5 days for failing to carry out properly assigned duties and for rudeness to his supervisor when telling him that he would not work overtime.

The Arbitrator stated the issue to be whether the suspension of the grievant was for such cause as will promote the efficiency of the Service. The Arbitrator summarized the Activity's position as urging an affirmative answer to the stated issue largely on grounds that mandatory overtime is central to its mission. He summarized the Union's position as arguing that the Activity is required to balance its own operational needs with the personal needs of the employees affected. The Arbitrator agreed with the Union.

The Arbitrator found that under the parties' collective bargaining agreement, "mandating overtime requires some consideration of balancing the respective needs of the Agency and the employee. . . [and] that in striking this balance the Agency's operational needs must be accorded great weight . . . ." Arbitrator's Award at 6. The Arbitrator also found that the parties' agreement "contains indications of how the parties have resolved also to weigh the employee's needs. Article 22, Section 8,(*) conveys the message that normally an employee will not be asked to work overtime if he has already worked a lot of overtime." Id. (emphasis in original; footnote added). It was evident to the Arbitrator that under the parties' collective bargaining agreement, the Activity must take a reasonable account of factors that make it difficult or inadvisable for the employee to work overtime.

The Arbitrator concluded that the Activity's ordering the grievant to work overtime was not in accordance with the parties' agreement. In the Arbitrator's view, the grievant made "a plausible claim that he [was] physically incapable of carrying out an assignment, with at best minimal attempt by supervision to evaluate the claim substantively. Yet the need for balance . . . requires, if it requires anything, a reasoned judgment by management as to the relative weight to be accorded to the Agency's operational needs and the employee's personal needs or physical state." Id. at 9.

The Arbitrator also concluded that the grievance was not "governed by the 'obey now, grieve later' rule." Id. at 7. In addition, the Arbitrator agreed with the Union's arguments that the general rule against supervisors working overtime in place of canine enforcement officers was not relevant and that the charge of rudeness was a minimal factor in the grievant's suspension.

Accordingly, the Arbitrator sustained the grievance. The Arbitrator ruled that "[i]t clearly does not promote the efficiency of the Service to suspend an employee without regard to a proper balance between Agency and employee needs, as mandated by the Agreement. . . . It is the [Activity's] burden to show that it made a reasonable effort to strike the necessary balance in acting on an employee's wish to be relieved of an overtime assignment, and the record is convincing that the [Activity] has not met this burden. Id. at 10. As the remedy, the Arbitrator ordered that the suspension be rescinded and expunged from the grievant's record and that the grievant be compensated for all pay lost as a result of the suspension.

III. First Exception

A. Positions of the Parties

The Activity contends that the award violates management's rights under section 7106(a) of the Statute. The Activity argues that, by agreeing with the Union that the general rule against supervisors working overtime in place of canine enforcement officers was not relevant, the Arbitrator substituted his judgment for management's in determining which personnel would be assigned to work the overtime assignment. The Activity also argues that, by preventing management from assigning overtime unless management balances employee needs with operational needs, the award violates management's right under section 7106(a)(2)(B) to assign work and determine the personnel by which agency operations will be conducted. The Activity asserts that the Arbitrator was not empowered to prevent management from mandating overtime. The Activity further argues that, by preventing management from disciplining an employee for refusing to work overtime unless employee and operational needs are first balanced, the award violates management's right to discipline under section 7106(a)(2)(A). The Activity asserts that the Arbitrator was not empowered to prevent management from disciplining an employee who refused to work mandated overtime.

The Union argues that the award does not impermissibly interfere with management's rights under section 7106(a)(2)(B) because the Arbitrator enforced an appropriate arrangement under section 7106(b)(3). The Union maintains that Article 22, Section 8 clearly recognizes and anticipates the situation presented by this case where an employee is unable to work due to having worked an inordinate number of hours during the preceding work days. The Union asserts that the Arbitrator properly interpreted the parties' collective bargaining agreement to require management to at least consider an employee's claim of exhaustion. The Union also argues that there is no support for the Activity's contention that the Arbitrator substituted his judgment for that of management in determining which personnel would be assigned to work overtime. The Union maintains that the Arbitrator merely found that the grievant should not have been suspended.

B. Analysis and Conclusions

We conclude that the Activity fails to establish that the award is contrary to section 7106(a) of the Statute.

The Activity's contention that the award violates management's rights by preventing management from assigning overtime unless management balances employee needs with operational needs provides us with an opportunity to reexamine the approach to be taken in resolving such exceptions.

We have indicated that we will not consider whether an arbitration award constitutes the enforcement of an appropriate arrangement under section 7106(b)(3) of the Statute when the union does not raise the applicability of section 7106(b)(3) or present sufficient evidence to permit such an assessment. U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 35 FLRA 990, 996 (1990) (Philadelphia Naval Shipyard). We explained that without any evidence that would enable us to assess the effect of an agreement provision on management's rights or the benefits to employees that might result from the provision, our determination of whether the provision constituted a properly negotiated appropriate arrangement would be purely conjectural. Id. at 996-97.

In Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988) (Bureau of Engraving and Printing), the Authority concluded that the collective bargaining agreement provision enforced by the arbitrator did not excessively interfere with management's right to assign work and constituted an enforceable appropriate arrangement within the meaning of section 7106(b)(3). In reaching this conclusion based on the record presented, the Authority applied the test established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), to determine the negotiability of proposals under the Statute. Under the test established in KANG, in order to determine whether a provision constitutes a negotiable appropriate arrangement, we must first determine whether it is intended to be an "arrangement" for employees who may be adversely affected by the exercise of management's rights. If we find that the provision is intended to be an arrangement, we then determine whether it is an "appropriate" arrangement, that is, whether it excessively interferes with the exercise of management's rights. Bureau of Engraving and Printing, 31 FLRA at 1256.

On reexamination, we conclude that in cases involving exceptions to arbitration awards such as the one before us, we should not apply the analytical framework formulated for cases involving negotiability decisions. We reach this conclusion because of the fundamental differences under the Statute between negotiation of, and arbitration concerning, a collective bargaining agreement. We now formulate an approach to these cases that will more fully carry out the Statute's purpose to facilitate and encourage the settlement of disputes.

We now hold that when an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a), we will examine the provision enforced by the arbitrator to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right.

We will examine the award for abrogation because an award that abrogates, that is, precludes an agency from exercising, a management right inherently cannot constitute an appropriate arrangement under section 7106(b)(3). See, for example, National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 759-60 (1986). Consequently, such an award is contrary to law and is deficient under section 7122(a)(1) of the Statute. Of course, if a contractual provision abrogates management's rights, any award enforcing that provision would also abrogate those rights and therefore would be contrary to law.

If it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Consequently, we will not find that the award is contrary to law, and we will deny the exception. If the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law under section 7122(a) of the Statute; the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected. To the extent that Authority decisions have taken a different approach to these cases, they will no longer be followed. In this regard, we specifically overrule the approaches taken in Philadelphia Naval Shipyard and Bureau of Engraving and Printing.

In cases such as these, we will not apply the test established in KANG to determine whether the provision excessively interferes with the exercise of a management right. This is a matter for the negotiation process under the Statute. Instead, we will determine whether a negotiated arrangement as enforced by an arbitrator abrogates management's rights. We expect that, as part of their negotiation process in reaching agreement on the provision, including it in their collective bargaining agreement, and subjecting the agreement to agency head review for legal sufficiency under section 7114(c) of the Statute, the parties will have assessed the effect of the provision on management's rights and the benefits to employees from the provision. Accordingly, when presented with exceptions to an arbitrator's award under section 7122(a) where an arrangement has been negotiated by the parties and enforced by an arbitrator in a way that does not abrogate management's rights, we will view the arrangement as appropriate for agreement and enforcement consistent with section 7106(b)(3). For the same reasons, when an arbitrator is presented with a provision that constitutes an arrangement, the arbitrator may not refuse to enforce the provision on the basis of a conflict with management's rights under section 7106 of the Statute unless the provision abrogates a management right.

In our view, this approach to cases such as these more fully carries out the purposes of the Statute because it recognizes the fundamental differences under the Statute between the process for negotiation of a collective bargaining agreement and the process for enforcement of the collective bargaining agreement. The issue and determination of whether an arbitration award is deficient under section 7122(a)(1) is fundamentally different from the issue and determination of the extent of the duty to bargain under section 7117 of the Statute. Pursuant to the procedures set forth in section 7117 and the criteria established in Authority negotiability decisions for resolving appropriate arrangement issues, the Authority determines whether the duty to bargain under section 7117(a) extends to the matter proposed to be negotiated or whether the matter is outside the duty to bargain because the proposal excessively interferes with the exercise of a management right.

The Statute establishes an elaborate process for resolving allegations by an agency that the duty to bargain under the Statute does not extend to a matter proposed to be negotiated. In KANG, the Authority established a test to resolve questions of whether a matter was within the duty to bargain under section 7106(b)(3). In our view, the KANG analysis is unsuited to resolving matters related to the enforcement of such a provision that has already been agreed to by the parties because it unduly impinges on the role of arbitration and arbitrators under the Statute.

In requiring parties to negotiate grievance procedures that terminate in binding arbitration and providing that the scope of review of arbitration awards would be very narrow, we believe that Congress fully expected arbitrators to enforce the collective bargaining agreements of Federal sector parties and the Authority to narrowly review those awards. By narrowly reviewing awards that enforce provisions of collective bargaining agreements that on their face are within the range of matters bargainable under the Statute, we facilitate and encourage the appropriate resolution of disputes under the Statute. By viewing an arrangement negotiated by the parties that does not abrogate a management right as appropriate under section 7106(b)(3), we encourage the resolution of duty-to-bargain issues as part of the negotiation process, which better facilitates their resolution. In addition, by concluding that an arbitrator properly enforced such a provision consistent with management's rights and by narrowly reviewing the award, we facilitate and encourage the final resolution of disputes by arbitration as intended by Congress. As the Authority has repeatedly recognized, the question of the interpretation and application of the collective bargaining agreement is a question solely for the arbitrator whose interpretation and application is what the parties bargained for. To the extent that the award concerns the construction of the agreement no basis can be provided for finding the award to be deficient. See, for example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA).

We believe that when the provision enforced by the arbitrator is within the range of matters that can be bargained, application of considerations that are part of the negotiation process in resolving exceptions to arbitration awards is unwarranted. Application of such considerations is not compelled by any of the principles of section 7106, including the principle that management rights are not waivable, and disserves the purposes and policies of the Statute. Section 7106 prohibits an agency from agreeing to a provision that abrogates management's rights. Consequently, enforcement of an arrangement negotiated by the parties that does not abrogate management's rights does not involve a question of waiver. We are committed to the Statute's provision for final and binding arbitration and its purpose of facilitating the resolution of disputes. These are best served by assuring that the decision of an arbitrator, selected by both parties to interpret and apply their collective bargaining agreement, will not be overridden on management rights grounds in order to relieve one party from the unwelcome result of that purposeful choice.

Of course, the arbitrator's interpretation and application must draw its essence from the parties' collective bargaining agreement and cannot simply reflect the arbitrator's own notions of industrial justice. Paperworkers v. Misco, 484 U.S. 29, 38 (1987). The arbitrator may not ignore the plain language of the agreement. Id. Accordingly, we encourage the parties to set forth plainly and precisely the arrangements which they have agreed to for employees adversely affected by the exercise of management's rights. When a party establishes that the arbitrator's enforcement of the arrangement does not represent a plausible interpretation of the agreement or evidences a manifest disregard of the agreement, we will find the award deficient, not because it is contrary to section 7106(a) of the Statute, but because the award fails to draw its essence from the parties' collective bargaining agreement. See OSHA, 34 FLRA at 575. Obviously, documentary evidence of the meaning and intent of the negotiated arrangement, such as bargaining history, can serve as support for such an exception and we encourage such documentation by the parties in this area.

Applying this approach in this case, we conclude that the Activity fails to establish that the award is contrary to section 7106(a) because it prevents management from assigning overtime unless management balances employee needs with operational needs. The Arbitrator interpreted Article 22, Section 8 to provide that normally an employee will not be directed to perform overtime when the employee recently has performed a significant amount of overtime and to require a reasoned judgment by management as to the relative weight to be accorded to operational needs and the employee's personal needs or physical state before directing overtime to be performed. The provision clearly constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work. Furthermore, the provision as interpreted and applied by the Arbitrator requires only a reasoned judgment by management in balancing operational and employee needs before directing overtime to be performed. It clearly does not abrogate the exercise by management of its right to assign work. Therefore, the provision was enforceable by the Arbitrator consistent with management's rights. Consequently, we reject the Activity's contention that the Arbitrator was not empowered to prevent management from mandating overtime and from disciplining the grievant for refusing to work the overtime. The Arbitrator merely enforced an appropriate arrangement negotiated by the parties in determining that the efficiency of the Service was not promoted by suspending the grievant without regard to the proper balance between operational and employee needs as mandated by the agreement. Such enforcement provides no basis for finding the award contrary to section 7106(a) of the Statute as claimed by the Activity.

We also conclude that the Activity fails to establish that the award is contrary to section 7106(a)(2)(B) because the Arbitrator found that the rule against supervisors working overtime in place of canine enforcement officers was not relevant to the grievance. The Arbitrator's determination on the relevance of the rule does not require the Activity to take or refrain from taking any action pursuant to its right to determine the personnel by which agency operations will be conducted and provides no basis for finding the award deficient. See U.S. Department of the Army, Armor Center, Fort Knox, Kentucky and American Federation of Government Employees, Local 2302, 34 FLRA 161 (1990) (award did not violate any management rights because the award did not require the agency to take or refrain from taking any action pursuant to those rights).

Accordingly, we will deny the exception.

IV. Second Exception

A. Positions of the Parties

The Activity contends that the award is deficient because "[t]he arbitrator exceeds the bounds of the contract language." Exceptions at 2. The Activity claims that the Arbitrator exceeded the bounds of the language of the collective bargaining agreement by stating that management must balance operational and employee needs in determining to order an employee to work overtime. The Activity argues that Article 23, Section 1(B) states that the Activity retains the right to determine, in accordance with law, the circumstances under which overtime will be required. The Activity also claims that, by reversing the suspension, the award is contrary to the agreement. The Activity argues that Article 22, Section 2(B) states that the refusal to work overtime may result in disciplinary action. The Activity further claims that the Arbitrator erred by viewing the grievant's exhaustion as synonymous with illness and that the Arbitrator substituted his own interpretation for the language of Article 22, Section 2(C) pertaining to exemption from overtime for medical reasons. The Activity also asserts that the "obey now, grieve later" rule applies under the parties' collective bargaining agreement contrary to the decision of the Arbitrator.

The Union contends that the exception should be denied because, contrary to the contentions of the Activity, the award is based on the parties' collective bargaining agreement.

B. Analysis and Conclusion

We view the Activity's exception as contending that the award fails to draw its essence from the collective bargaining agreement, and we conclude that the Activity fails to establish that the award is deficient on this ground.

In order for an award to be found deficient as failing to draw its essence from the collective bargaining 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 or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, OSHA, 34 FLRA 573, 575 (1990). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement based on claims that the arbitrator misinterpreted the agreement. Id. at 575-76.

In this case, the Arbitrator interpreted Article 22, Section 8 to provide that normally an employee will not be directed to perform overtime when the employee has recently performed a significant amount of overtime and to require a reasoned judgment by management as to the relative weight to be accorded operational needs and the employee's personal needs or physical state before directing overtime to be performed. In our view, by failing to address the Arbitrator's interpretation and application of Article 22, Section 8 and citing only to other provisions of the agreement, the Activity has not established that the award fails to draw its essence from the collective bargaining agreement under any of the tests recognized by the Authority and provides no basis for finding the award deficient. See id. at 576-77. The Activity's unsupported contention that, contrary to the Arbit