48:0566(56)AR - - NTEU and FDIC, Washington, DC - - 1993 FLRAdec AR - - v48 p566



[ v48 p566 ]
48:0566(56)AR
The decision of the Authority follows:


48 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

FEDERAL DEPOSIT INSURANCE CORPORATION

WASHINGTON, D.C.

(Agency)

0-AR-2423

_____

DECISION

September 29, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator William M. Edgett filed by the Union 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.

The Arbitrator found that the Agency had violated section 7116(a)(1) and (5) of the Statute by awarding a contract for the management of certain assets of the Agency without notifying the Union in advance of its decision and without affording the Union an opportunity to bargain over the impact and implementation of its decision. As a remedy, the Arbitrator directed the Agency to notify the Union and bargain in good faith with the Union, on request, concerning the procedures to be observed in contracting out work normally performed by unit employees and any appropriate arrangements for employees adversely affected by its determination to contract out. We find that the Arbitrator's refusal to consider certain additional remedies conflicts with the Statute, and we will remand this matter for further proceedings.

II. Background and Arbitrator's Award

On February 20, 1992, the Agency entered into a contract with Oxford Finance Companies, Inc. (Oxford) to act as a nationwide servicer for the Agency's small assets (less than $50,000). The Union filed a grievance claiming that the Agency violated the Statute and the Federal Deposit Insurance Act when it awarded the contract to Oxford. The grievance was not resolved and was submitted to arbitration on the stipulated issues of whether the Agency violated section 11(d)(2)(K) of the Federal Deposit Insurance Act, 12 U.S.C. § 1821(d)(2), when it awarded the contract to Oxford and section 7116(a)(1) and (5) of the Statute when it awarded that contract without notifying the Union in advance and affording it the opportunity to bargain. The parties also stipulated to the Arbitrator that on January 23, 1992, the Union had requested to bargain with the Agency over contracting out Agency work, but that the Agency did not notify the Union of its decision to award the contract to Oxford and did not afford the Union an opportunity to bargain prior to awarding the contract.

The Arbitrator found that the Agency did not violate the Federal Deposit Insurance Act when it awarded Oxford the contract. However, the Arbitrator found that the Agency violated section 7116(a)(1) and (5) of the Statute when it awarded the contract to Oxford without notifying the Union in advance and without affording the Union an opportunity to bargain over the impact and implementation of the contract with Oxford.

In determining what remedy to direct for the violation, the Arbitrator noted the remedy request of the Union:

1.) a rollback of the change to the status quo [ante];

2.) an order to bargain over the impact of awarding the Oxford Contract;

3.) retroactivity, to the period prior to awarding the Oxford Contract of any agreement reached regarding the contracting out of bargaining unit work;

4.) payment of lost wages to those terminated, non-renewed, or downgraded due to the [Agency's] decision to award the Oxford Contract;

5.) placement of employees terminated (or "non-renewed") during the life of the Oxford Contract in similar positions at the work location of their last assignment or, if closed, at the work location of their choice;

6.) the issuance of a cease and desist order and the posting of a notice similar to those used by the FLRA in these matters; and,

7.) all other appropriate remedies.

Award at 5-6. Addressing each remedy requested by the Union, the Arbitrator first rejected a rollback to the status quo ante. He noted that in determining whether to award a status quo ante remedy, consideration must be given to the disruption or impairment of the efficiency and effectiveness of the Agency's operations. Applying that standard, the Arbitrator was convinced that a status quo ante remedy was inappropriate.

The Arbitrator agreed to direct bargaining over the impact of awarding the asset management contract to Oxford, but refused to direct that the results of the bargaining be given retroactive effect. He explained his refusal as follows: "I do not believe that I have the authority to issue such an order, and I would hesitate to exercise such authority even if I believed that I had it." Id. at 7. He also refused to award backpay or placement of terminated employees. In the Arbitrator's view, "[p]ayment of lost wages to employees terminated, non-renewed or downgraded due to the decision to award the Oxford contract, if any are so affected, must be encompassed in the negotiation between the parties. Placement of terminated employees, if any there be, must, similarly, be a part of the negotiations if it is to be accomplished." Id.

The Arbitrator further rejected the Union's request for a cease and desist order and the posting of a notice similar to those used by the Authority. He noted that all the cases cited by the Union to support such a remedy had been issued by the Authority, and continued "to state the obvious, [he was] not the Authority." Id. He explained that this was an instance in which the parties had agreed to have this matter heard by an arbitrator and that, by doing so, "they must expect the award of an arbitrator not the direction of [the Authority]." Id.

In the Arbitrator's view, this matter was appropriately addressed by directing that the Agency do what it should have done in the first instance: negotiate over the impact and implementation of the decision to contract out. Accordingly, as the award, the Arbitrator directed the Agency to notify the Union and to bargain in good faith with the Union, on request, concerning the procedures to be observed in contracting out work normally performed by unit employees and any appropriate arrangements for employees adversely affected by its determination to contract out.

III. Positions of the Parties

A. The Union

The Union contends that the award is contrary to law because the Arbitrator misconstrued his authority to provide the remedies requested by the Union. The Union argues that on finding that the Agency committed an unfair labor practice, the Arbitrator was required by law and the facts presented in the case to order a status quo ante remedy with backpay or a retroactive bargaining order. The Union also argues that the Arbitrator was required to issue a cease and desist order and the posting of a notice similar to those used by the Authority on finding an unfair labor practice.

With respect to a status quo ante remedy, the Union argues that under the Authority's decision in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), there was no basis in the record for the Arbitrator to conclude that a status quo ante remedy was inappropriate and that, consequently, the Arbitrator's refusal to order such a remedy is deficient. The Union further argues that the Arbitrator's refusal to order a retroactive bargaining order, particularly after refusing to order a status quo ante remedy, fails to assure that the statutory rights of unit employees are adequately addressed and fails to deter the Agency from engaging in similar violations in the future. The Union also asserts that under Authority decisions, an award of backpay was warranted. Finally, the Union claims that the Arbitrator should have issued a cease and desist order and should have ordered a posting similar to those ordered by the Authority.

B. The Agency

The Agency contends that the Union fails to establish that the award is contrary to any law, including the Statute. The Agency claims that the Union's exception constitutes nothing more than an attempt to substitute its requested remedies for the remedy ordered by the Arbitrator and that such an exception provides no basis for finding an award deficient.

The Agency maintains that the Arbitrator was empowered to make his own assessment of the appropriate remedy and that there is no requirement that his choice be identical to those awarded in like cases. In the Agency's view, the cases cited by the Union only demonstrate the discretion available in the fashioning of remedies and do not mandate that certain remedies must be provided. With respect to the Union's citation of FCI, the Agency contends that the Arbitrator applied the factors of FCI and properly determined that a status quo ante remedy was not warranted because of the potential disruption to the Agency's operations. The Agency further asserts, contrary to the claim of the Union, that the Arbitrator's finding of disruption and impairment of Agency operations was not speculative, but rather was based on substantial testimony in the record.

The Agency notes that the Union could have filed an unfair labor practice charge and that the Authority would have determined the remedy for any finding of an unfair labor practice. Instead, the Union filed a grievance and submitted the grievance to arbitration. The Agency maintains that the Union's disappointment with the results of this voluntary choice cannot provide a basis for finding the Arbitrator's award deficient.

IV. Analysis and Conclusions

We conclude that the award is deficient to the extent that the Arbitrator refused to consider whether he should direct certain remedies because of his view that he was not empowered to order such relief. Specifically, we find that the Arbitrator's determination that he was not authorized to award a retroactive bargaining order is deficient as contrary to the Statute. In addition, we are persuaded that the Arbitrator likewise refused to award a cease and desist order and the posting of a notice based on his view that he was not empowered to award such relief. We find that the refusal to consider those remedies also conflicts with the Statute.

In Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992), the U.S. Court of Appeals for the D.C. Circuit recently addressed the choice of forums granted in section 7116(d) of the Statute where the aggrieved party has the option of raising an issue as an unfair labor practice or as a grievance. The court found that "[b]y providing for a choice of forum, section 7116(d) assumes that a similar analytical approach would be followed--if not the same result reached--by both the arbitrator and the Authority with respect to matters over which there is concurrent jurisdiction." 963 F.2d   at 438 (emphasis in original). The court further indicated that if the approaches were not required to be similar the promise of a choice of forums under section 7116(d) would be illusory. Id. Consequently, we conclude that an arbitrator is empowered to fashion the same remedies in the arbitration of a grievance alleging the commission of an unfair labor practice as those authorized under section 7118 of the Statute. For arbitrators to refuse to consider the remedies authorized by section 7118 of the Statute because they determine that they are not empowered to grant such relief is not consistent with the framework of the Statute, and we will find that such determinations are deficient. In our view, to find otherwise would destroy the promise of a choice of forums with similar--if not identical--remedial authority, as was intended by Congress.

Clearly, a retroactive bargaining order is a remedy authorized under section 7118 to remedy unfair labor practices. See NTEU v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). Accordingly, we find that the award is deficient to the extent that the Arbitrator refused to consider a retroactive bargaining order as relief because, in his view, he was not empowered to do so. Similarly, an order directing that a respondent cease and desist from violating the Statute and post a notice of its commission of an unfair labor practice and the action it will take to remedy the violation are routine elements of any relief ordered by the Authority to remedy an unfair labor practice. Although the Arbitrator did not specifically state, as he did with respect to retroactive bargaining orders, that he was not empowered to order the Agency to cease and desist and post a notice, we believe that his statement that he was "not the Authority" expressed his view that he was not authorized to order such relief. Award at 7. Accordingly, we find that the award is also deficient to the extent that he erroneously concluded that he could not award such relief.

We will remand this matter to the parties for resubmission to the Arbitrator. On resubmission, the Arbitrator must consider under the same remedial approach applied by the Authority whether in his judgment a cease and desist order, a posting, and the issuance of a retroactive bargaining order are appropriate relief to remedy the Agency's violation of the Statute in failing to provide notice to the Union and an opportunity to bargain over the impact and implementation of its decision to contract out the management of small assets.

We reject the Union's claims that the award is deficient because it fails to award a status quo ante remedy and backpay. Our decision assures that, as effectively required by section 7116(d), the proper remedial approach is followed by the Arbitrator. In choosing to file a grievance rather than filing an unfair labor practice with the Authority, the Union chose the judgment and discretion of the Arbitrator rather than that of the Authority. We will not disturb that choice by substituting our judgment for that of the Arbitrator when there is no basis in the record submitted for concluding that a status quo ante remedy or a backpay remedy is compelled by the Statute. We believe that we should review the remedy determinations of the Arbitrator just as our remedies in unfair labor practice cases are reviewed by the Federal courts of appeals. See National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 276 (1992). We should uphold an arbitrator's remedy determinations unless it can be shown that these determinations are "a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the [Statute]." Id. (quoting NTEU v. FLRA, 910 F.2d at 968) (emphasis in original). This "is a heavy burden indeed." Id. (quoting NTEU v. FLRA, 910 F.2d at 968).

In this case, no basis is provided for disturbing the Arbitrator's rejection of a status quo ante remedy. Although the Arbitrator does not cite FCI in denying the remedy, that case was submitted to the Arbitrator by the parties and his award is consistent with it. Thus, consistent with the remedial approach of FCI, the Arbitrator found that a status quo ante remedy was not warranted because it would disrupt and impair the efficiency and effectiveness of the Agency's operations. Moreover, we reject the Union's claim that the denial of a status quo ante remedy is deficient because there was no basis in the record for determining that a return to the status quo ante would be disruptive. In our view, the Union's claim constitutes nothing more than disagreement with the Arbitrator's findings of fact, evaluation of the evidence, and reasoning and conclusions in determining that there would be a disruption and constitutes an attempt to relitigate this issue before the Authority. Therefore, it provides no basis for finding the award deficient. See National Federation of Federal Employees, Local 259 and U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA 773, 776-77 (1992).

Finally, without a status quo ante remedy or a finding by the Arbitrator that employees suffered a loss of pay, allowances, or differentials as a direct result of the Agency's failure to bargain, no basis is provided for disturbing the Arbitrato