48:0822(85)AR - - EEOC and AFGE, National Council of EEOC Locals No. 216 - - 1993 FLRAdec AR - - v48 p822



[ v48 p822 ]
48:0822(85)AR
The decision of the Authority follows:


48 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF EEOC LOCALS NO. 216

(Union)

0-AR-2433

_____

DECISION

November 2, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Joseph Lazar filed by the Agency 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.(1)

The Arbitrator held a hearing concerning three consolidated grievances protesting the Agency's implementation of a performance appraisal system. The Agency maintained that the Arbitrator was not properly selected and refused to attend the arbitration hearing. The Arbitrator issued an award resolving the grievances. The Agency contends that the award is deficient because the Arbitrator was not properly selected. The Agency also contends that the Arbitrator had no jurisdiction over the grievances under section 7116(d) of the Statute because the subject matter of the grievances concerned the same issues that were contained in two unfair labor practice (ULP) charges that had been filed by the Union before the Union filed the grievances in this case. For the following reasons, we find that the Agency has failed to establish that the award is deficient under the Statute. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

This matter first came before the Authority in Case No. 0-AR-2341. In that case, the Arbitrator issued an interim award designating himself as a permanent national arbitrator pursuant to Article 44, Section 44.03 of the parties' collective bargaining agreement.(2) The Agency had refused to participate with the Union in the striking of names from a list of potential arbitrators to determine the three national arbitrators who would hear and resolve grievances under Section 44.02 of the agreement. The Agency contended that the Union must first participate in the selection of mediator/arbitrators under Article 8 of the agreement. In his interim award, the Arbitrator referred to a pending grievance in the Agency's New Orleans office and indicated that he would hold hearings to resolve that and other grievances.

The Agency filed exceptions to the Arbitrator's award in Case No. 0-AR-2341. Those exceptions were dismissed without prejudice by the Authority as interlocutory in American Federation of Government Employees, National Council of EEOC Locals No. 216 and Equal Employment Opportunity Commission, 47 FLRA 525 (1993) (EEOC I). The Authority held that the Arbitrator's award establishing himself as a national arbitrator under Article 44 of the parties' collective bargaining agreement resolved only a threshold matter preliminary to resolution of the grievance pending in the Agency's New Orleans District Office and that, consequently, the Agency's exceptions were interlocutory because the award was not final.

On February 22, 1993, prior to our decision in EEOC I, the Arbitrator held a hearing to resolve consolidated Union grievances numbered C-216-G-001, C-216-G-002, and C-216-G-003, filed on April 1, May 7, and May 14, 1992, respectively. Those grievances protested the Agency's failure to negotiate over the implementation of its Performance and Recognition System (PARS) and the Agency's implementation of the PARS on April 1, 1992. The Arbitrator issued an award resolving the grievances on April 15, 1993. He noted that on August 6, 1992, "an interim or interlocutory award was issued in this matter on the threshold question of interpretation and application of Section 44.03 of the [c]ollective [b]argaining [a]greement, selection of the National Arbitrators." Award at 1. He also noted that the Agency "did not appear at the hearings of July 30, 1992 and February 22, 1993." Id. at 2.

The Arbitrator set forth the Union's statement of the issues in the consolidated grievances as follows:

Whether or not the Agency breached Article 22 of the [collective bargaining agreement] and the memorandum of understanding [MOU] dated April 29, 1991 by terminating negotiations in September[] 1991 and by implementing the performance appraisal plans in April[] 1992.

Id. (emphasis deleted). Article 22 of the agreement concerns the performance appraisal system. The MOU of April 29, 1991, provides "procedures [which] will govern the development and implementation of a performance appraisal system demonstration project that will cover bargaining unit employees . . . ." Id. at 3. The Arbitrator stated that the issue did not concern a negotiability or unfair labor practice matter but, rather, "is limited strictly to ascertaining the meaning of the relevant contract terms." Id. at 2.

The Arbitrator reviewed the history of the parties' negotiations over the performance appraisal system. He found that the Agency had failed to comply with the requirements of Article 22 of the collective bargaining agreement and the MOU when it unilaterally implemented PARS. He made the following award:

1. The Agency is in violation of the Collective Bargaining Agreement.

2. The Agency is in violation of Article 22.00, Article 43.00, Article 44.00, Article 7.00, and the Memorandum of Understanding of April 29, 1991.

3. Absent bargaining impasse under Article 22.00 and the Memorandum of Understanding of April 29, 1991, the Agency's invocation of Article 8.00 was premature and in violation of the Collective Bargaining Agreement.

4. Article 22.00 of the Collective Bargaining Agreement, Article 7.00, and the authority and role of the Joint Labor Management Committee, and the Memorandum of Understanding of April 29, 1991 are and continue to be in full force and effect.

5. The PARS Implementation of April 1, 1992 is subject to review and consideration by the Joint Labor Management Committee. This Committee may seek agreement on any or all of the PARS Implementation of April 1, 1992 and give retroactive validation to such parts or part as they agree upon. Absent agreement, however, the status quo prior to April 1, 1992 governs.

6. For the purpose of implementation of this Award, the Agency is ordered, within ninety (90) days of date of this Award, to provide to the Union:

(a) the names and amounts of performance awards for all bargaining unit employees from April 1, 1992 to date;

(b) the names, locations, and dates of personnel actions for any and all bargaining unit employees who have been affected by any disciplinary action, or other notification even if not disciplinary in nature, relating to the use of flexible time;

(c) the written notification to the United States Office of Personnel Management (OPM) requesting approval of the OPM for the April 1, 1992 performance appraisal and recognition system, and the written notification from OPM granting such approval.

7. This Arbitrator retains jurisdiction over any dispute that may arise over the interpretation, application, compliance or implementation of this Award, including any dispute over performance awards or flexible work schedule impacts resulting from the April 1, 1992 implementation.

Id. at 23-24 (emphasis deleted).

III. Positions of the Parties

A. The Agency

The Agency contends that the award is deficient because the Arbitrator did not have jurisdiction in this case. Noting its then-pending challenge to the Arbitrator's jurisdiction in EEOC I, the Agency states that it incorporates its arguments concerning the Arbitrator's lack of jurisdiction. In essence, the Agency argues that the Arbitrator was not properly selected under the parties' collective bargaining agreement and, therefore, lacked jurisdiction to resolve the grievances.

The Agency also contends that the Union's grievances in this case are barred by section 7116(d) of the Statute because the Union had previously filed ULP charges on the same issues as the issues in the grievances.(3) The Agency includes in its exceptions copies of the ULP charges in Case No. WA-CA-20145 and Case No. WA-CA-20284 filed by the Union with the Authority's Washington Regional Office on December 3, 1991, and January 23, 1992, respectively. According to the Agency, the issues in those ULP charges concerned the Agency's refusal to bargain over the performance appraisal system. The Agency contends that the issues in the ULP charges were the same issues that were involved in the later-filed grievances that were submitted to the Arbitrator in this case and, therefore, constituted a bar to the grievances under section 7116(d) of the Statute.

B. The Union

The Union contends that the Agency has no grounds for objecting to the Arbitrator's jurisdiction to hear the grievances because the Agency refused to appear and participate in the arbitration hearing on July 30, 1992, leading to the award at issue in EEOC I, and in the hearing held on February 22, 1993, leading to the award in this case. The Union asserts that the Agency is estopped from raising objections to the Arbitrator's jurisdiction and states that "[t]he Agency's continued refusal to adhere to the parties['] agreement and its abandonment of the arbitration process precludes it from now attempting on appeal to litigate the merits of the cases which it willfully and intentionally failed to present at the arbitration hearing." Opposition at 4.

The Union contends that the Agency cannot rely on section 7116(d) of the Statute to challenge the Arbitrator's jurisdiction to resolve the grievances because that argument was not made to the Arbitrator and the Agency's exception concerns "a jurisdictional matter which must be raised prior to an appeal to the Authority." Id. at 5. The Union also contends that the issues in the ULP charges and the grievances do not concern the same matter. According to the Union, the ULP charges concerned "the Agency's refusal to negotiate over the performance appraisal system[,]" whereas the grievances before the Arbitrator concerned "whether the Agency breached the collective bargaining agreement between the parties by the implementation of the performance appraisal system." Id. at 5-6.

IV. Analysis and Conclusions

A. Section 7116(d) of the Statute

As a preliminary matter, we deny the Union's contention that the Agency cannot challenge the Arbitrator's jurisdiction under section 7116(d) of the Statute in its exceptions because the Agency did not raise that issue before the Arbitrator. Exceptions that challenge an arbitrator's jurisdiction under the Statute may be considered by the Authority regardless of whether the jurisdictional argument was made to the arbitrator. See U.S. Department of Justice, Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local 1929, 40 FLRA 43, 51-52 (1991) (Authority considered exceptions claiming that an arbitrator lacked jurisdiction under section 7121(d) of the Statute even though that argument was not made before the arbitrator). See also U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA 268 (1987), rev'd on other grounds, No. 87-2062 (10th Cir. Nov. 15, 1989) (order) (section 7116(d) issue must be addressed although not raised by respondent because that issue concerns the Authority's jurisdiction). Accordingly, we will consider the Agency's exceptions that the award is deficient under section 7116(d) of the Statute.

We conclude that the arbitration proceeding conducted by the Arbitrator in this case was not barred under section 7116(d) of the Statute. As pertinent here, section 7116(d) provides that issues which may be raised under a negotiated grievance procedure may, in the discretion of the aggrieved party, be raised under that procedure or as a ULP, but not under both procedures. For a grievance to be precluded under section 7116(d) by a previously-filed ULP charge, all of the following conditions must be met: (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the ULP; (2) the issue must have been previously raised under the ULP procedures; and (3) the selection of the ULP procedures must have been in the discretion of the aggrieved party. See, for example, International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 44 FLRA 1291, 1297 (1992).

For purposes of determining whether the issue which is the subject matter of a grievance is the same as the issue which is the subject matter of a ULP, thereby raising the jurisdictional bar set forth in section 7116(d), we examine whether the subject matter of a ULP charge is based on the same factual circumstances and legal theory as the subject matter of the grievance. See id.

In this case, we find that the grievances filed by the Union were not based on the same factual circumstances that were involved in the ULP charges, and, consequently, the factual predicates in the two matters were not the same. See Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987) (OEA), reversing and remanding sub nom. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985), decision on remand, 29 FLRA 1225 (1987) (upholding an arbitrator's finding that there were different factual predicates for a ULP charge and a grievance, and, therefore, section 7116(d) did not bar the processing of a later-filed grievance). In resolving the three grievances numbered C-216-G-001, C-216-G-002, and C-216-G-003, filed on April 1, May 7, and May 14, 1992, respectively, the Arbitrator stated that the issue presented by the grievances was "[w]hether or not the Agency breached Article 22 of the [collective bargaining agreement] and the memorandum of understanding dated April 29, 1991[,] by terminating negotiations in September[] 1991 and by implementing the performance appraisal plans in April[] 1992." Award at 2 (emphasis deleted); see also, Exceptions, Attachment 5.

In contrast, the ULP charges did not concern the Agency's implementation of the performance appraisal plans in April 1992. The issue in the ULP charge in Case No. WA-CA-20145, filed by the Union on December 3, 1991, was whether the Agency had committed a ULP by violating Article 22 of the parties' collective bargaining agreement and the memorandum of understanding dated April 29, 1991, when it failed "to meet and confer . . . to collaboratively develop a new performance appraisal system, including but not limited to critical job elements and standards." Exceptions, Attachment 3. Similarly, the issue in the ULP charge in Case No. WA-CA-20284, filed by the Union on January 23, 1992, was whether the Agency committed a ULP when it "refused to continue bargaining with the National Council of EEOC Locals #216 over the substance and/or the impact and implementation of the Agency's [p]erformance [a]ppraisal [s]ystem covering all bargaining unit employees." Id. The ULP charges do not allege that the Agency committed a ULP by actually implementing a performance appraisal system, and indeed, could not have contained such an allegation because the Agency had not implemented a performance appraisal system at the time the ULP charges were filed. The factual situation facing the Union at the time the grievances were filed was different from the situation facing the Union at the time the ULP charges were filed. See OEA, 824 F.2d at 72. Thus, it is clear that the underlying factual circumstances of the ULP charges and the grievances were not the same for purposes of applying section 7116(d) of the Statute.

We also conclude that the underlying legal theories in the ULP charges and the grievances were not the same. In the ULP charges, the Union objected to the Agency's failure to negotiate over PARS. Specifically, in Case No. WA-CA-20145, the Union alleged that the Agency "negotiated Article 22 of the [collective bargaining agreement] and the MOU in bad faith." Id. In Case No. WA-CA-20284, the Union alleged that the Agency's failure to bargain "over the substance and/or the impact and implementation of the Agency's Performance Appraisal System" violated section 7116(a)(1) and (5) of the Statute. Id.

In contrast, in the consolidated grievances, the issues framed by the Arbitrator concerned whether the Agency breached provisions of the collective bargaining agreement and the memorandum of understanding by terminating negotiations in September 1991 and by implementing the performance appraisal plans in April 1992. Thus, the grievances are based on a theory not contained in the ULP charges--that the Agency had improperly implemented the performance appraisal plan. Consequently, the Union's underlying legal theory in the ULP charges is not the same as the underlying legal theory in the grievances. See OEA, 824 F.2d at 72; U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts and American Federation of Government Employees, Council of Locals 163, 47 FLRA 1314, 1320-21 (1993) (where the legal theory advanced in the grievance involved solely a question of contract interpretation and application, whereas the theory advanced in the ULP charge concerned a violation of section 7116(a)(1) of the Statute based on discriminatory treatment of the union and unlawful interference with union activity, the issues in the two proceedings were different for purposes of section 7116(d)).

Consequently, the Arbitrator's award in the instant proceeding is not barred under section 7116(d) of the Statute and the Agency's exception to that effect will be denied.

B. The Arbitrator's Jurisdiction

We find no merit in the Agency's contention that the Arbitrator's award is deficient because the Arbitrator was not properly chosen as a national arbitrator under the parties' collective bargaining agreement.

As noted above and discussed more completely in EEOC I, the Arbitrator was chosen by the Union as a national arbitrator under Article 44 of the parties' agreement. Pursuant to his interim award, the Arbitrator assumed jurisdiction over the grievances over the Agency's implementation of the performance appraisal system. Essentially, the Agency argues that the Arbitrator had no authority to decide the grievances in this case because he was not properly selected as a national arbitrator pursuant to Article 44, Section 44.03 of the parties' collective bargaining agreement. The Agency contends that there is no provision in Article 44, Section 44.03 permitting unilateral selection of national arbitrators by one party and that the Arbitrator's award in this case on the merits of the performance appraisal grievances, in which he affirms his selection as a national arbitrator, fails to draw its essence from the parties' collective bargaining agreement.

In order to demonstrate that an award fails to draw its essence from the 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 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 American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499 (1992).

The Agency has not demonstrated that the Arbitrator's award is deficient under any of these tests. In his award on the merits of the performance appraisal system grievances, the Arbitrator noted and incorporated the interim award discussed in EEOC I and stated that, in that interim award, he had interpreted and applied Article 44, Section 44.03 of the parties' collective bargaining agreement. He found that the Agency had refused to participate in the striking of names from the list of arbitrators provided by FMCS and that, consequently, the Union had properly selected him as a national arbitrator. We find nothing in the Arbitrator's award that renders the award deficient on the ground that it fails to draw its essence from the parties' collective bargaining agreement. That is, we conclude that nothing in the Arbitrator's interpretation of the parties' agreement is irrational, implausible, unfounded, or in manifest disregard of the agreement. Instead, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. As such, the exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 96 and U.S. Department of Veterans Affairs Medical Center, St. Louis, Missouri, 47 FLRA 922, 930 (1993).

To the extent that the Agency contends that the award is deficient because the Agency did not participate in the proceedings before the Arbitrator and the Arbitrator proceeded ex parte, the Agency's contentions provide no basis for finding the award deficient. The Authority has consistently held that arbitration awards are not deficient on the ground that an arbitrator held an ex parte hearing when a party to the arbitration refused to be present at the arbitration hearing. See U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 1117, 1125 (1991) (the Authority denied the union's exception to an award dismissing the union's grievance because of the irresponsible behavior of its representative; the Authority found, among other things, that the union provided no basis for finding the award deficient on the ground that the arbitrator proceeded ex parte with the hearing after the union's representative boycotted the hearing); Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia and American Federation of Government Employees, Local No. 987, 24 FLRA 968 (1986) (award was not deficient on the ground that it was procured by ex parte contacts where the hearing was conducted with the knowledge of the union and its absence from the hearing was by choice).

The Agency was informed of the scheduled arbitration hearing to resolve the interim issue concerning the selection of national arbitrators and had participated with the Union in requesting a list of potential arbitrators from FMCS. Similarly, the Agency was notified of the hearing on the merits of the performance appraisal grievances and chose not to participate in that hearing and present its arguments to the Arbitrator. The fact that the Agency refused to participate in the striking of names from the list of arbitrators and to attend the hearing and present its views to the Arbitrator concerning the grievances over the performance appraisal plan does not render the Arbitrator's award deficient. See Army & Air Force Exchange Service (Fort Hood, Texas) and Local 1920, American Federation of Government Employees, 32 FLRA 124, 126 (1988) (there was no basis for finding an award deficient on the ground that the union was not allowed to participate in the selection of an arbitrator, where the union was requested to participate in the selection but refused to do so). Accordingly, the Agency's exceptions in this regard will be denied.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency filed a motion requesting expedited review of its exceptions in this case. In view of this decision, the Agency's motion is denied as moot.

2. Article 44, Section 44.03, Selection of the National Arbitrators, provides:

The National Arbitrators shall be selected from a panel of 15 Arbitrators requested from the Federal Mediation and Conciliation Service (FMCS) and will serve in a permanent capa