49:0667(63)AR - - Interior, Bureau of Indian Affairs, Chemawa Indian Boarding School, Salem, OR and NFFE, Local 241 - - 1994 FLRAdec AR - - v49 p667



[ v49 p667 ]
49:0667(63)AR
The decision of the Authority follows:


49 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

CHEMAWA INDIAN BOARDING SCHOOL

SALEM, OREGON

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 241

(Union)

0-AR-2513

_____

DECISION

April 5, 1994

_____

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 Kenneth J. Latsch 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.

The Arbitrator sustained a grievance over the Agency's action in furloughing bargaining unit employees and directed the Agency to make the employees whole for the hours of work lost as a result of the furloughs. For the following reasons, we find that the Agency fails to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The dispute in this matter arose in the spring of 1989, when the Agency notified the Union that, due to a lack of funds, it intended to furlough bargaining unit employees of the Chemawa Indian School during the summer months. The Union filed a grievance alleging that the furloughs did not comport with statutory requirements in a variety of ways. Subsequently, the Union filed an unfair labor practice (ULP) charge contending that the Agency had, among other things, failed to bargain over the furloughs. The grievance proceeded to arbitration before Arbitrator Latsch. The Arbitrator denied the grievance finding that it was inappropriate to resolve the grievance while the ULP charge was pending before the Authority. In U.S. Department of Interior, Bureau of Indian Affairs, Chemawa Indian Boarding School and National Federation of Federal Employees, Local 241, 39 FLRA 1322 (1991), the Authority determined that the grievance had been filed before the ULP charge and, therefore, that the ULP charge did not bar resolution of the grievance under section 7116 of the Statute. Accordingly, the Authority set aside the award and remanded the matter to the parties for resubmission to arbitration before a mutually agreed upon arbitrator.

After the parties failed to resolve the dispute in settlement discussions, the matter was resubmitted to Arbitrator Latsch. The parties framed the issue for resolution as follows:

Has management properly exercised its legitimate right to place employees on "non-pay/non-duty" status?

If there has been a violation of the collective bargaining agreement, what is the appropriate remedy?

Award at 2.

The facts in this case reveal that, on May 16, 1989, after being advised of the Agency's intention to furlough bargaining unit employees, the Union sent a letter to the school principal inquiring about the likelihood of furloughs. The Union was concerned that the practice of furloughing, which had been in effect for the previous eight years, would be continued that summer. On May 25, 1989, the Agency sent furlough notices to the affected bargaining unit employees. On May 26, 1989, the principal issued resolution number 89-01 authorizing the furloughs. The resolution stated that, due to a lack of funds, the Agency would have to furlough "[General Service] Career Status Quo Educational employees" from June 25, 1989, through August 27, 1989, and "[Wage Grade] Food Service employees" from June 11, 1989, through August 27, 1989. Id. at 6.

On May 30, 1989, the principal sent a letter to the Union responding to the latter's questions regarding the likelihood of furloughs. The principal stated that the Agency was sending employees individual letters explaining the furlough situation and, further, that the Agency was acting in accordance with applicable laws and regulations. On June 2, 1989, the Agency issued another resolution, also numbered 89-01, which was signed by a school board member during a school board meeting and which contained the same wording as found in the May 26, 1989, resolution. On June 21, 1989, the Union was provided with the Agency's financial plans for fiscal year 1989, and was told that those plans would also be presented to the school board. The Union thereafter filed a grievance concerning the Agency's actions in conducting the furloughs; as noted, the grievance was ultimately submitted to arbitration on its merits.

The Union argued before the Arbitrator that the Agency illegally furloughed bargaining unit employees, failed to provide the Union with the necessary financial plans before the furloughs took place, and deprived the Union of an adequate opportunity to review and comment on the financial plans before the furloughs. The Union also maintained that the Agency had not fulfilled the statutory requirements of Pub. L. No. 100-297, § 5114(p)(1)(A), 102 Stat. 379 (1988) and Pub. L. No. 100-427, § 9(D), 102 Stat. 1607 (1988).(1) Specifically, the Union asserted that the Agency had not provided the required financial information in a timely manner, as required, and did not have the school board's approval prior to the furloughs. The Union also argued that the Agency had not furloughed employees in an equitable manner.

The Agency maintained "that it did not violate the [parties'] collective bargaining agreement by the furloughs complained of in these proceedings." Id. at 10. The Agency also contended that it had followed 25 U.S.C. § 2011(p)(1)(A) and that the reasons for the furloughs were authorized by this law. Given its deteriorating financial condition, the Agency claimed that it acted appropriately in furloughing bargaining unit employees. The Agency also argued that the affected employees were classified as "career seasonal" employees and were not, therefore, subject to certain statutory restrictions on furloughs. Id. In addition, the Agency maintained that it had provided the Union with all financial documents relating to the school's financial difficulties and asserted that the Arbitrator should reject the Union's claim to the contrary. The Agency also argued that the Arbitrator could not interpret the parties' agreement without considering other applicable rules and regulations and that the furlough "was consistent with the directive issued by the [A]gency." Id. Finally, the Agency asserted that the length of the furloughs was consistent with the time frame provided by 25 U.S.C. § 2011(p)(1)(A).

In resolving the issue before him, the Arbitrator noted that both parties had based their contentions before him "on extensive statutory interpretation." Id. at 11. Consequently, the Arbitrator stated that he was obligated to analyze those laws carefully in reaching a determination. Initially, the Arbitrator noted that the Agency had the right to reduce its workforce when faced with budgetary constraints. Nevertheless, the Arbitrator found that "such actions cannot be taken without appropriate notice to affected unions, and the unions must be given the opportunity to bargain with the employer concerning the effects of the proposed personnel actions on the union's members." Id. For the following reasons, the Arbitrator found that the Agency failed to fulfill its obligations under the parties' agreement and the relevant statutes.

First, the Arbitrator found that the furlough resolution was issued after the actual furlough notices were mailed to the affected employees. Based on this finding, the Arbitrator determined that the Union was presented with the "inevitability of furloughs" without having had an adequate opportunity to bargain with the Agency on the effects the furloughs would have on bargaining unit employees. Id. According to the Arbitrator, the Agency presented the furloughs to the Union as a "fait accompli." Id.

The Arbitrator also found that 25 U.S.C. § 2009(b) requires the Agency to give prior notice of furloughs to the union representative in the form of "proposed draft financial plans and all amendments . . . at the same time they are submitted to the local school board." Id. at 12 (emphasis omitted). Here, the Arbitrator determined that the Agency did not provide any information to the Union until after the furlough notices were issued and that there was no indication any draft documents were discussed with the Union prior to May 26, 1989. Consequently, the Arbitrator found that "the Union could only protest the action already taken when it finally had an opportunity to make any comment at all." Id.

The Arbitrator also rejected the Agency's argument that it had timely notified the Union of the furloughs. In this regard, the Arbitrator found that 25 U.S.C. § 2011(p)(1)(A) requires the school principal to have prior approval of the local school board before furloughs can be implemented. The Arbitrator found that the school board was fully aware of the budget difficulties facing the school and that the decision-making process was pursued in a timely and deliberate manner. Apparently based on his earlier finding that the Agency could not take certain personnel actions without giving the Union an opportunity to bargain concerning the effects of those proposed actions, the Arbitrator found that the Union should have been, but was not, given an opportunity to discuss the impending furloughs during the deliberation period. Therefore, the Arbitrator found that the Agency had not fulfilled its contractual and statutory obligations in conducting the furloughs. As a consequence, the Arbitrator concluded that "the furloughs must be overturned." Id. at 13.

As his award, the Arbitrator sustained the grievance and directed the Agency "to make whole the affected employees for time lost due to the furloughs." Id. The Arbitrator also retained jurisdiction for a period of 30 days to resolve any disputes over the amount of compensation due employees.

III. First Exception

A. Positions of the Parties

In its first exception, the Agency argues that the award is deficient because it is based on nonfacts.

First, the Agency argues that the Arbitrator erred in concluding that the Agency failed to provide the Union with any financial information until after the furlough notices were issued. The Agency maintains that in December 1988, prior to the issuance of the furlough notices, the Agency alerted the Union to the possibility of furloughing employees during the summer of 1989. The Agency argues that because the Arbitrator's finding was erroneous and was central to the award, the award must be set aside. In support of this contention, the Agency cites U.S. Department of Veterans Affairs, Medical Center, Jackson, Mississippi and National Federation of Federal Employees, Local 589, 46 FLRA 1638, 1647-48 (1993) (NFFE, Local 589).

Additionally, the Agency claims that the Arbitrator mistakenly found that the furlough resolution issued on behalf of the school board on May 26, 1989, was issued after furlough notices were mailed to unit employees. The Agency argues that the furlough notices were sent to the employees on May 25, 1989, the same date the approval of two members of the school board was obtained by telephone.(2) The Agency further claims that the school board could have rescinded its approval of the furloughs before their effective date of June 25, 1989.(3)

The Union contends that the Agency's exception constitutes an attempt to relitigate this matter before the Authority. Specifically, the Union argues that the Arbitrator's findings that the Agency failed to provide any financial information to the Union and that the May 26, 1989, furlough resolution was issued after the May 25, 1989, furlough notices were sent to employees are not nonfacts but are "legitimate factual determinations made by the Arbitrator[.]" Opposition at 1.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is deficient because it is based on nonfacts.

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1046-47 (1992) (GSA, Region 2). However, this basis for finding an arbitration award deficient does not permit the appealing party to dispute the arbitrator's findings of fact. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry Air Force Base). In reviewing awards alleged to be deficient because they are based on a nonfact, the Authority applies the limitations recognized by the Federal courts in reviewing arbitration awards in the private sector, and we apply the principles of the Supreme Court in generally refusing to disturb the factual findings and determinations of arbitrators in the Federal sector. Id. at 593-94. Consequently, exceptions that constitute nothing more than disagreement with an arbitrator's factual findings and determinations on disputed or ambiguous evidence provide no basis for finding an award deficient because it is based on a nonfact.

In this case, it is clear that the circumstances under which the Agency provided notice to the Union of the impending furloughs were disputed. Thus, there has been no demonstration that the award was based on a "clear misstatement[] of undisputed historical fact." Lowry Air Force Base, 48 FLRA at 594, quoting National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985). Therefore, the Agency's claims that the Arbitrator erred in finding both that the Agency did not provide financial information to the Union before issuing the furlough notices to employees and that the furlough resolution was issued by the school board after notices were sent to employees constitute mere disagreement with the Arbitrator's factual determinations. In addition, the Agency has not demonstrated that either of these factual findings constituted the central fact underlying the award. Accordingly, the Agency has not established a clear mistake of fact but for which, in accordance with the rationale expressed in his award, the Arbitrator would have reached a different result. See GSA, Region 2, 46 FLRA at 1047. Therefore, we find that the Agency's exception provides no basis for finding the award deficient.

In addition, we find that the Agency's reliance on NFFE, Local 589 is misplaced. In that case, the Authority set aside an award, in part, because the appealing party had demonstrated that the fact relied on by the Arbitrator was erroneous and that but for the erroneous finding the arbitrator would have reached a different conclusion. In contrast, the Agency has not demonstrated that any of the Arbitrator's factual findings were erroneous.

IV. Second Exception

A. Positions of the Parties

The Agency argues that the award is deficient because it is contrary to law. In support, the Agency maintains that the Arbitrator based his determination that the Agency had acted improperly in furloughing employees on misinterpretations of the applicable provisions of law. Specifically, the Agency argues that the Arbitrator misstated 25 U.S.C. § 2009(b) as requiring the Agency to provide the Union with draft financial documents and to discuss them with the Union prior to issuing the May 26, 1989, furlough resolution and prior to notifying employees of the furloughs. The Agency argues that the plain language of section 2009(b) requires only that the Agency provide the Union with a copy of financial plans at the same time they are submitted to the school board. The Agency claims that it fulfilled this requirement when it provided information to the Union in December 1988 and on June 21, 1989. The Agency also argues that the legislative history pertaining to this provision demonstrates that the congressional intent in enacting it was to provide notice to employees through their union and to provide local school boards with the authority to modify financial plans. The Agency argues that, under the provision, the Union does not have the authority to alter or bargain over financial plans, to discuss or consult on the financial plans, or to bargain over the decision to furlough employees. The Agency further states that Congress contemplated that furloughs during the summer would be a routine procedure and, therefore, that the furloughs "constituted an established practice sanctioned by statute." Exceptions at 10.

The Agency also argues that the Arbitrator misinterpreted 25 U.S.C. § 2011(p)(1)(A) as requiring the Agency to discuss the impending furloughs with the Union during the deliberation period between the Agency and the school board. The Agency maintains that the plain language of this provision does not require notice or discussion with the Union prior to the issuance of furlough notices and, in fact, makes no reference to a union's bargaining rights. The Agency also argues that this provision does not mandate that the approval of the school board be obtained prior to the issuance of furlough notices to employees. The Agency contends that this provision only requires that a determination by the Agency to furlough employees for periods longer than 4 weeks be approved by the school board. In addition, the Agency maintains that there is no requirement that the school board's approval be in a particular form. In this case, the Agency argues that the telephonic approval by the school board on May 25-26, 1989, satisfies the requirements of this provision because the timing of school board approval and the format of such approval are left to management's discretion.

The Union contends that the Agency is merely attempting "to reopen old arguments in areas that the Arbitrator has rendered decisions[]" and to relitigate these matters before the Authority. Opposition at 1.

B. Analysis and Conclusions

We find that the Agency has not established that the award is contrary to law. Accordingly, we will deny the exception.

First, we reject the Agency's contention that the Arbitrator misstated 25 U.S.C. § 2009(b). That provision states that proposed draft financial plans will be provided to appropriate union representatives at the same time they are submitted to the local school board. The Arbitrator noted this provision and found that the Agency failed to comply with it. In support of his conclusion, the Arbitrator found no evidence that draft documents were provided to and discussed with the Union before the school board issued its furlough resolution on May 26, 1989.

We also reject the Agency's claim that the Arbitrator misinterpreted 25 U.S.C. § 2011(p)(1)(A). The Arbitrator did not find that that statutory provision required furlough discussions with the Union during the school board's deliberation period. Instead, the Arbitrator found that the provision requires the school principal to have prior approval of the school board before implementing furloughs. Based on this statutory requirement, the Arbitrator concluded that deliberations over the furlough had, in fact, been conducted. Although the Arbitrator found that the Union should have been given an opportunity to discuss the furloughs during that period, his finding was not predicated on a requirement contained in 25 U.S.C. § 2011(p)(1)(A). Similarly, the Arbitrator did not find that 25 U.S.C. § 2011(p)(1)(A) mandates the approval of the school board prior to issuing furlough notices to employees, as the Agency claims. As noted, the Arbitrator simply found that that statutory provision requires the school principal to have the local school board's approval prior to implementing a furlough. Additionally, the Arbitrator made no findings with respect to the form of the school board's approval in a manner contrary to 25 U.S.C. § 2011(p)(1)(A).

In sum, we find no basis on which to conclude that the award is deficient as contrary to law. See, for example, U.S. Department of the Treasury, United States Customs Service and National Treasury Employees Union, 46 FLRA 1433, 1439-41 (1993). Accordingly, this exception is denied.

V. Third Exception

A. Positions of the Parties

The Agency argues that the award "fails to draw its essence from the parties' collective bargaining agreement . . . ." Exceptions at 1. In this connection, the Agency asserts that in concluding that it did not fulfill its obligations under the parties' agreement, the Arbitrator "completely failed to point out or discuss which provisions of the agreement the Arbitrator found were not fulfilled by the Agency." Id. at 14. The Agency also argues that the Arbitrator ignored the fact that furloughs were an established past practice at the school. Consequently, the Agency maintains that the issuance of the furlough notices did not constitute a change in working conditions over which the Agency was required to bargain. However, even assuming there was a change in working conditions, the Agency argues that the Union waived its right to bargain over the impact and implementation of the furloughs. In this regard, the Agency asserts that under Article 22, Section 4c of the parties' master labor agreement, the Union had 15 days from the date it received notice of the furloughs to provide the Agency with written proposals relating to the impact and implementation of the furloughs.(4) The Agency argues that it placed the Union on "general notice" of the furloughs in December 1988, and made a specific response to the Union's inquiry on May 30, 1989. Id. at 16. The Agency states that the Union failed to present it with any written proposals or requests for impact bargaining. As a result, the Agency maintains that the Arbitrator should have enforced this waiver provision. In support, the Agency cites Authority precedent for the proposition that an agency has no obligation to bargain where, as here, an agreement covers the subject matter at issue.

The Union claims that the Agency is simply disagreeing with the Arbitrator's conclusions. The Union also maintains that the Agency is raising arguments that should have been presented to the Arbitrator.

B. Analysis and Conclusions

To establish that an award is deficient because it fails to draw its essence from an agreement, the party making the allegation must demonstrate 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 of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992).

In this case, the Agency has failed to establish that the award is deficient under any of these tests. First, we reject the Agency's assertion that the award is deficient because the Arbitrator did not identify and discuss the specific provisions of the agreement that he found were violated. While it is true that the Arbitrator did not cite the portions of the agreement in his award, the Arbitrator referred to and addressed the Agency's contention that the furloughs did not violate the parties' agreement. In our view, the Arbitrator addressed with sufficient particularity the agreement provisions that were presented for his consideration. See American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1113 (1990) and cases cited therein. As the Authority has stated, the fact that an award does not address specific provisions of an agreement does not establish that such provisions were not considered by the arbitrator and does not provide a basis for finding the award deficient. See, for example, U.S. Department of the Army, Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 45 FLRA 480, 482 (1992). Consequently, the Agency has not demonstrated that the award fails to draw its essence from the agreement on this basis.

The Agency argues specifically that the Arbitrator should have found that furloughs were a past practice and, therefore, that the furloughs in 1989 did not constitute a change in working conditions, or, in the alternative, that the Arbitrator should have applied Article 22, Section 4c of the parties' agreement to find that the Union waived its right to bargain over the impact and implementation of the furloughs. The Union claims that these arguments were not presented to the Arbitrator. The Agency has presented no evidence that counters this claim. Under section 2429.5 of the Authority's Rules and Regulations, the Authority will not consider any issue that was not presented in the proceedings before an arbitrator. For example, U.S. Department of Defense, Dependents Schools, Alexandria, Virginia and Overseas Education Association, 41 FLRA 982, 999 (1991). Accordingly, we will not consider these arguments by the Agency.

VI. Decision

The Agency's exceptions are denied.

APPENDIX

25 U.S.C. § 2009(b) provides in pertinent part:

The supervisor shall provide the appropriate union representative of the education employees with copies of proposed draft financial plans and all amendments or modifications thereto, at the same time they are submitted to the local school board.

25 U.S.C. § 2011(p)(1)(A) provides in pertinent part:

(1) An educator . . . may not be placed on furlough (within the meaning of section 7511(a)(5) of Title 5) without the consent of such educator for an aggregate of more than 4 weeks within the same calendar year, unless--

(A) the supervisor, with the approval of the local school board (or of the agency superintendent for education upon appeal under paragraph (2)), of the [Agency] school at which such educator provides services determines that a longer period of furlough is necessary due to an insufficient amount of funds available for personnel compensation at such school, as determined under the financial plan process as determined under section 2009(b) of this title . . . .




FOOTNOTES:
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1. The relevant statutory provisions, respectively codified at 25 U.S.C. §§ 2011(p)(1)(A) and 2009(b), are set forth in the Appendix to this decision. For convenience, all future references hereinafter will be to Title 25.