41:1042(82)AR - - Commerce, Patent and Trademark Office and Patent Office Professional Association - - 1991 FLRAdec AR - - v41 p1042
[ v41 p1042 ]
The decision of the Authority follows:
41 FLRA No. 82
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to a clarified award of Arbitrator Richard I. Bloch.
In his original award, the Arbitrator concluded that the Agency violated Article 19 of the parties' collective bargaining agreement when it issued a revised performance appraisal plan for patent examiners. As a remedy, he ordered the Agency to make whole those employees who suffered losses as a result of the violation. The Arbitrator also ordered the Agency "to negotiate those aspects of the 1986 Performance Appraisal Plans found to have been negotiable . . . ." Original Award at 21. 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 Union filed an opposition to the Agency's exceptions.
In U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 34 FLRA 992 (1990) (Patent and Trademark Office), we remanded the award to the parties to have them obtain a clarification of the award from the Arbitrator because we concluded that the award was ambiguous as to which employees or what period of time the remedy was to apply.
In the clarified award, the Arbitrator stated that the make whole remedy applied to employees who suffered monetary losses from "the date of issuance of the revised Performance Appraisal [Plan] to the date the [Authority's] decision on negotiability was [issued]." Clarified Award at 4. The Union filed exceptions to the clarified award. The Agency filed an opposition to the Union's exceptions.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the clarified award deficient. Accordingly, we will deny the exceptions.
Article 19 of the parties' collective bargaining agreement was imposed on the parties in a May 1986, interest arbitration award. Article 19 required, among other things, that the status quo in performance appraisal matters be maintained until the Authority decided the negotiability of Union proposals then pending before the Authority. On October 1, 1986, the Agency implemented a revised performance appraisal plan for patent examiners and the Union filed a grievance contesting the implementation of the revised plan. The grievance was submitted to arbitration.
III. Arbitrator's Original Award
The Arbitrator concluded that the Agency violated Article 19 of the parties' collective bargaining agreement when it issued the revised performance appraisal plan. The Arbitrator rejected the Union's request for a status quo ante remedy, however. In this regard, the Arbitrator noted that the Authority's negotiability decisions involving the disputed matter, Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (POPA I), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam) and Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (POPA II), aff'd sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989), issued after implementation of the revised plan. The Arbitrator concluded that "[t]hese decisions . . . have provided substantial guidance to the parties with respect to the areas over which the parties must negotiate, and the process of returning to the bargaining table on those points is specifically contemplated by Article 19." Original Award at 20. In his award, the Arbitrator ordered the Agency to make "whole those employees who actually suffered losses as a result of the change in the [performance appraisal] rating system." Id.
IV. Authority's Decision in 34 FLRA 992
In its exceptions to the original award, the Agency did not object to the portion of the award requiring the Agency to make whole employees who suffered monetary losses between October 1, 1986 and February 2, 1987, the date of the Authority's decision in POPA I. The Agency claimed, however, that the award was deficient to the extent it required the Agency to "'make whole employees without regard to whether the proposals found negotiable by the [Authority] and bargaining by the union on those proposals would have rendered a different result.'" Patent and Trademark Office, 34 FLRA at 998 (quoting Agency's Exceptions at 4). The Union claimed, in response, that the award required that the Agency make whole all employees who sustained losses from October 1, 1986, until the Agency had fulfilled its bargaining obligations under Article 19.
The Authority found that it could not determine from the award whether either of the parties' interpretations was correct. The Authority stated that "it is unclear whether the Arbitrator's award was intended to encompass only those employees who had already suffered losses or whether employees who would suffer future losses were to be included also." Id. at 998-99. Accordingly, the Authority remanded the award to the parties for the purpose of requesting the Arbitrator to clarify his award.
V. Arbitrator's Clarified Award
In response to the parties' request for clarification, the Arbitrator stated that the questions to be resolved were as follows:
1. What type of harm was intended to be remedied by the [original] award?
2. What period of time was contemplated?
Clarified Award at 2.
The Arbitrator first rejected the Union's claim that because employees suffered potential losses until Article 19's bargaining requirements including negotiation, mediation and impasse resolution procedures were satisfied, all employee ratings lowered in accordance with the revised performance plan should be reviewed and set aside. The Arbitrator noted that, in his original award, he rejected the Union's claim for a status quo ante remedy. The Arbitrator also noted that, in his original award, a "narrow remedy, (including an express denial of the status quo restoration), . . . was awarded." Id. at 3.
The Arbitrator also rejected the Union's claim that because, in his original award, he ordered the parties to bargain, a status quo order was required under Article 14 of the parties' collective bargaining agreement. The Arbitrator found that the extent to which the parties had complied with Article 14 following the issuance of his original award was not before him. Rather, the Arbitrator found the sole issue before him was whether the Agency violated Article 19 of the parties' agreement by implementing the revised performance plan before the Authority had decided the negotiability of related Union proposals. The Arbitrator stated that because he found a violation of Article 19, he fashioned a remedy "to make whole those employees who had suffered during that same time period--from the implementation of the revised plan until the issue date of the [Authority decision]." Id. at 4.
The Arbitrator ordered that the "remedy in [his original award] shall apply from the date of issuance of the revised Performance Appraisal to the date the . . . Authority decision on negotiability was released." Id. He also ordered that "[e]mployees who suffered monetary losses as a result of failing to receive a promotion or a 'within grade' increase, for example, shall be made whole." Id.
VI. The Union's First Exception
A. Positions of the Parties
1. The Union
The Union asserts that the clarified award is contrary to law because the Arbitrator failed to remedy the Agency's violations of section 7116(a)(5), (6) and (7) of the Statute based on the Agency's: (1) failure to bargain in good faith; (2) failure to cooperate in impasse procedures and impasse decisions; and (3) enforcement of rules or regulations in conflict with collective bargaining agreements. The Union claims that the unfair labor practice (ULP) issues were raised to the Arbitrator before both the original and clarified awards. The Union contends that it "should not be forced to forego ULP remedies when it refers ULP issues to an arbitrator just because the arbitrator decides not to resolve or address those issues." Exceptions at 11. The Union argues further that "[o]nce a failure to bargain has been found, clearly there must be a remedy." Id. at 13.
The Union asserts that "there was a unilateral change in working conditions coupled with a failure to maintain the status quo pending negotiations that should have occurred following the issuance of the Authority's negotiability decisions [until] . . . the parties either came to an agreement . . . or exhausted impasse procedures." Id. Therefore, the Union contends there must be a remedy which either orders restoration of the status quo ante or individualized relief. Moreover, the Union claims that even in the absence of a status quo ante order, the Arbitrator should have given individualized relief from the time of the Authority's negotiability decision until the parties concluded their negotiations.
2. The Agency
The Agency contends that the Arbitrator's clarified award is not contrary to law. According to the Agency, the Union "never 'elected' to take the unfair labor practice issue to arbitration. The issue has always been the contract violation of Article 19 and its requirement that the [A]gency maintain the status quo pending the Authority's negotiability decision." Opposition at 5-6.
The Agency notes that the Union could have elected to use the unfair labor practice procedure in the instant case but it chose not to do so. Further, the Agency argues that the Union is attempting "to re-define and expand the issue to something not accepted by the Arbitrator." Id. at 7. Moreover, the Agency asserts that "an arbitrator is not required to address every argument - particularly when it is not dispositive." Id. at 8 (footnote omitted).
Finally, the Agency asserts that "[n]o legal requirement exists for a status quo ante remedy, either for a contractual or unfair labor practice violation." Id. at 10. Therefore, the Agency claims that "[t]he [U]nion has failed to explain how the Arbitrator's award of a different remedy violates the law." Id.
B. Analysis and Conclusions
We reject the Union's contentions that the Arbitrator's clarified award is contrary to law because the Arbitrator failed to provide a remedy for alleged ULPs committed by the Agency.
In the absence of a stipulation by the parties, an arbitrator's formulation of the issue is accorded substantial deference. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Decatur ATCT and National Air Traffic Controllers Association, 39 FLRA 1051, 1053 (1991). In the absence of a stipulation by the parties, the Arbitrator framed the issues to be resolved in the clarified award as the "type of harm . . . intended to be remedied" by, and the "period of time" intended to be encompassed by, the remedy in the original award. Clarified Award at 2. In other words, the issues raised in the clarified award concerned solely the scope of the remedy in the original award. Moreover, the issue resolved in the original award related only to alleged contractual, as opposed to statutory, violations. In particular, in the absence of a stipulation by the parties, the Arbitrator framed the issue in the original case as whether the "issuance of the revised 1986 Performance Appraisal Plan constitute[d] a violation of the Collective Bargaining Agreement." Original Award at 2.
As the sole issue before the Arbitrator in the proceeding to clarify the original award was the scope of that award, and as the sole issue before the Arbitrator in the original award concerned alleged contractual violations, there is no basis for finding the clarified award deficient because it did not provide a remedy for alleged ULPs. See U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1212-13 (1990). We will, therefore, deny the Union's first exception.
VII. The Union's Second Exception
A. Positions of the Parties
The Union asserts that the clarified award fails to draw its essence from the parties' collective bargaining agreement. According to the Union, Article 14 of the agreement applied to negotiations following the issuance of the Authority's negotiability decisions on the Union's performance appraisal proposals. The Union claims that "[d]uring those negotiations, Section 7 of Article 14 of the Contract mandated maintenance of the status quo ante." Exceptions at 18. The Union asserts that the Arbitrator ignored the status quo requirements of Article 14.
The Agency argues that the Union's exception does not demonstrate that the clarified award is deficient. According to the Agency, the Arbitrator rejected the same Union argument based on the Arbitrator's finding "that the bargaining obligation of Article 14 was not before him[.]" Opposition at 11.
B. Analysis and Conclusions
To demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1211 (1991).
The Union has not demonstrated that the Arbitrator's interpretation of the parties' collective bargaining agreement renders the clarified award deficient under any of the tests set forth above. First, the Arbitrator noted that the focus of the original award was the Agency's violation of Article 19 and the remedy for such violation. Second, the Arbitrator rejected the Union's claim that Article 14 required the remedy to include maintenance of the status quo pending completion of bargaining. The Arbitrator found that "[t]o the extent additional obligations, status quo related or otherwise, attend the