53:0984(81)AR - - Interior, Bureau of Indian Affairs, Navajo Area Office and NFFE BIA Council - - 1997 FLRAdec AR - - v53 p984



[ v53 p984 ]
53:0984(81)AR
The decision of the Authority follows:


53 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

NAVAJO AREA OFFICE

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

BIA COUNCIL

(Union)

0-AR-2827

_____

DECISION

December 18, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

Decision by Chair Segal for the Authority.

I.Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John H. Abernathy 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 Regulations. The Union filed an opposition to the Agency's exceptions. The Agency also filed a motion to strike an affidavit attached to the opposition, and the Union filed a reply to the motion.

The Arbitrator sustained a grievance challenging the Agency's application and use of reduction in force (RIF) procedures that resulted in the grievant's separation. For the following reasons, we conclude that the award is deficient under section 7122(a)(1) of the Statute. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The grievant, a secretary at the Bureau of Indian Affairs' (BIA) Kinlichee Boarding School, was separated from her employment when the Agency conducted a RIF. Following her separation, the Union filed a grievance under the parties' collective bargaining agreement alleging that the grievant had been improperly separated during the RIF. The parties were unable to resolve the grievance, and the matter was submitted to arbitration. As relevant here, the parties stipulated the following issue to be resolved by the Arbitrator:

Was the Kinlichee Boarding School the proper "competitive area" for the [Agency] (BIA) to use for [grievant's] . . . RIF or should it have been the "local commuting area" from her Steamboat home under 5 C.F.R. § 351.402?

Award at 34.

Before the Arbitrator, the Union challenged the competitive area established by the Agency on two grounds. First, the Union asserted that the Agency's decision to limit the competitive area to the Kinlichee Boarding School was arbitrary and contrary to 5 C.F.R. § 351.402(b).(2) Thus, the Union argued that the grievant was denied the opportunity to "bump" employees in other BIA facilities with less seniority. Second, the Union maintained that, although the Agency claimed that internal BIA regulations authorized it to define the Kinlichee Boarding School as the competitive area for the RIF, such internal agency regulations could not supersede government-wide RIF regulations.

The Arbitrator stated that "when an agency undertakes a RIF, it has the burden of proving by a preponderance of the evidence that it properly invoked and applied the RIF regulations." Id. at 38. Therefore, the Arbitrator determined that the Agency "ha[d] the burden of showing that it correctly determined the grievant's competitive area." Id.

The Arbitrator concluded that the Agency failed to establish that the Kinlichee Boarding School was the proper competitive area for the RIF. In particular, the Arbitrator determined that the Agency had failed to establish either that the Kinlichee School was a single administrative authority or that it was within the local commuting area as required under 5 C.F.R. § 351.402(b).(3)

With respect to whether the Kinlichee School constituted a single administrative authority, the Arbitrator found that: (1) the grievant's RIF and separation notices were issued by the Navajo Area Office of the BIA; (2) the grievant's personnel action originated in the Navajo Area Office; (3) the Navajo Area Office answered the grievance; and (4) the grievant's MSPB claim was responded to by a representative from the Gallup office. Id. The Arbitrator also stated that Article 28, Section 4 of the parties' collective bargaining agreement provides that "School Boards may not direct, control or interrupt the day-to-day activities of [BIA] employees carrying out Bureau operated education program." Id. at 39. Consequently, the Arbitrator concluded that "the[] documents d[id] not support the Agency's argument that the Kinlichee [Boarding] School was a single administrative authority." Id. at 40.

With respect to whether Kinlichee Boarding School was within the local commuting area, the Arbitrator found that the Agency failed to offer any proof on the issue of commuting areas. As such, the Arbitrator determined that the Agency "did not meet its burden[.]" Id.

Based on the foregoing, the Arbitrator sustained the grievance.

III. Positions of the Parties

A. Agency

In its exceptions, the Agency challenges the Arbitrator's award as failing to draw its essence from the parties' collective bargaining agreement and as contrary to law. With respect to the former, the Agency contends that the award fails to draw its essence from Article 16, Section 2E of the agreement.(4) The Agency asserts that Article 16, Section 2E demonstrates that the parties agreed to the competitive areas designated in the Department of the Interior's Departmental Manual (DM). As applicable here, the Agency argues that the DM designates each individual school as a competitive area and, therefore, the Arbitrator's award, establishing a broader competitive area, "manifest[s] a patent disregard for the parties' agreement[.]" Id. at 3 n.3.

The Agency contends that the award is contrary to law on several grounds. The Agency first claims that the Arbitrator misapplied the standard for reviewing the Agency's determination that the Kinlichee Boarding School constituted a competitive area. Relying on Ginnodo v. Office of Personnel Management, 753 F.2d 1061 (Fed. Cir. 1985) (Ginnodo) and Grier v. Department of Health and Human Services, 750 F.2d 944 (Fed. Cir. 1984) (Grier), the Agency asserts that the proper standard of review is whether the agency abused its discretion, substantially departed from applicable procedures, or misconstrued governing statutes in designating the Kinlichee Boarding School as the competitive area for the RIF. The Agency contends that the Arbitrator mistakenly relied on Losure v. Interstate Commerce Commission, 2 M.S.P.R. 195, 200-02 (1980) (Losure), which concerns an "agency's burden to prove that it properly undertook a RIF within the regulations[.]" Exceptions at 13 n.9. According to the Agency, applying the proper standard of review, it neither abused its discretion nor misconstrued governing statutes and regulations in designating the Kinlichee Boarding School as the minimum competitive area under 5 C.F.R. § 351.402(b). In this regard, the Agency claims that the Arbitrator misinterpreted the term "activity" when he concluded that the Agency's definition of activity--the Kinlichee Boarding School--was too narrow a definition under 5 C.F.R. § 351.402(b). The Agency asserts that the proper definition of activity to be applied in this case is the definition found in section 2421.4 of the Authority's Regulations.(5)

The Agency further claims that the Kinlichee Boarding School constitutes a "single administrative authority" under 5 C.F.R. § 351.402(b). The Agency states that MSPB decisions establish that the term "single administrative authority" "concern[s] the authority to make decisions rather than . . . issu[ing] documents by which [the] decisions are effected." Id. at 15. In this connection, the Agency argues that the Arbitrator erred by relying on "the fact that some of the personnel documents in the record were issued by the Navajo Area Office and not by the Kinlichee School or School Board." Id. at 14. According to the Agency, the "substantive personnel decisions" connected to the RIF were made by the principal and the school board.(6) Id. at 15.

Finally, in response to the Union's opposition, the Agency filed a motion to strike an affidavit attached to the Union's opposition. In its motion to strike, the Agency argues that the Authority should not consider the affidavit because it was not presented to the Arbitrator during the arbitration.

B. Union

The Union first challenges the timeliness of the Agency's exceptions. The Union argues that, because the Agency filed its exceptions 35 days after service of the Arbitrator's award, "it is not clear that even the additional five (5) days for mailing which are by 'custom' added on to the Exceptions filing-period would make their filing timely. . . ." Opposition at 6-7.

On the merits, the Union claims that the award draws its essence from the collective bargaining agreement. The Union argues that Article 16, Section 2E, when read in connection with the DM, does not "compel [a] conclusion that 'each individual school will be considered separately as the competitive area[.]'" Id. at 23.

The Union contends that an agency does not have "unfettered and unreviewable" discretion in defining the competitive areas for a RIF. Id. at 10. In particular, the Union argues that the Agency was required to comply with 5 C.F.R. § 351.402(b) in establishing the competitive area for the RIF. The Union claims that the Agency did not demonstrate that the Kinlichee Boarding School constituted a "single administrative authority," as required by the regulations and MSPB precedent.

Finally, the Union filed an opposition to the Agency's motion to strike, asserting that the affidavit "was intended to respond to the argument raised anew by the Agency in its Exceptions" with regard to the meaning of Article 16, Section 2E of the parties' collective bargaining agreement. Union's Response to Agency's Motion to Strike at 2.

IV. Analysis and Conclusions

A. Preliminary Matters

1. The Agency's Exceptions Were Timely

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). A 5-day extension is added to the 30-day time limit for filing exceptions if the award is served by mail. 5 C.F.R. § 2429.22, 2429.27(d). However, the time limit and extension are computed separately and, if either time period would expire on Saturday, Sunday, or a Federal legal holiday, then the period is deemed not to expire until the end of the next workday. 5 C.F.R. § 2429.21(a). See U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, Window Rock, Arizona and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 52 FLRA 909, 912-13 (1997).

The Union's assertion that the Agency's exceptions were not timely filed fails to take into account that the award was served by mail and, as a result, 5 days are added to the time limit for filing exceptions. See, e.g., Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 409 (1996). Calculated correctly, exceptions to the award were due no later than April 29, 1996. The exceptions were filed on April 25, 1996. Therefore, the exceptions were timely.

2. The Affidavit Attached to the Union's Opposition IS Not Properly Before the Authority

Arbitration awards are not subject to review on the basis of evidence in existence at the time of the arbitration, but not presented to the arbitrator, or evidence that comes into existence after the arbitration. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 519-20 (1997). Even where new evidence or testimony is discovered that would have resulted in a different award if it had been presented at the arbitration hearing, the Authority has held that this is not a sufficient ground for "vitiating the required finality of the original award." Id. at 519 (citations omitted). This precedent is consistent with section 2429.5 of the Authority's Regulations, which provides, in pertinent part:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before . . . the arbitrator. The Authority may, however, take official notice of such matters as would be proper.

There is no dispute that the disputed Union affidavit was not presented to the Arbitrator. The Union requests that the Authority consider the affidavit because it argues that the affidavit responds to a new argument raised by the Agency with respect to the meaning of Article 16, Section 2E of the parties' agreement. See Union's Response to Agency's Motion to Strike at 2. Contrary to the Union's argument, however, the record discloses that the meaning of the parties' collective bargaining agreement was an issue placed before the Arbitrator for his consideration. See Award at 3-12. Thus, the Agency has not "raised anew" in its exceptions an issue that was not before the Arbitrator.

In these circumstances, the Union's affidavit may not be introduced to refute material on the record. See Veterans Administration, Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 470-71 (1981). Accordingly, we have not considered the Union's affidavit in reviewing the Arbitrator's award.

B. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement

Article 16, Section 2E of the parties' agreement states that "[t]he Bureau agrees to comply with the competitive areas as approved by the Department of the Interior." Exceptions at 17. There is no dispute that, as the Agency claims, this provision "directly incorporate[s]" the Department of the Interior's regulations. Because both the regulation and the collective bargaining agreement apply in this case, the collective bargaining agreement governs the disposition and the issue becomes one of contract interpretation. See Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 292-93 (1991). Therefore, as the Agency has recognized in its exceptions, any inconsistency with the regulation would render the award deficient only under the essence standard as applied to the collective bargaining agreement. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1526 (1997).

The Agency claims that the incorporated regulations provide "a separate competitive area for each individual BIA school." Exceptions at 18. However, the Agency has not cited any provision in the regulation that defines each school as a competitive area. Rather, the regulation provides, in relevant part, that "[p]ositions at each school . . . will be considered separate and apart from positions in other Bureau programs. . . . Area 28 [consists of] [e]ach individual installation of OIEP." Exceptions at Enclosure 3 (emphasis added).

It was not irrational, implausible, or unconnected to the wording of the agreement, which incorporates these provisions, for the Arbitrator to determine that the Kinlichee Boarding School did not constitute a separate competitive area. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Agency has not established that the term "position" or the term "installation" is equivalent to the term "individual schools." Therefore, there is no basis on which to conclude that the Arbitrator's award does not draw its essence from the parties' agreement. Accordingly, we deny this exception.

C. The Award is Contrary to 5 C.F.R. § 351.402(b)

In circumstances where an agency's exceptions involve the award's consistency with law, we review the questions of law raised by the agency's exceptions and the Arbitrator's award de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

At the outset, we note that the Arbitrator and the parties examined and relied on MSPB precedent to resolve the grievance. The Authority previously has examined and applied MSPB precedent concerning RIF matters. See, e.g., U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and International Federation of Professional and Technical Engineers, Local 1, 49 FLRA 588, 593-95 (1994); U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 44 FLRA 1195, 1200 (1992). Consistent with this precedent and the record in this case, for purposes of this decision, we examine and apply MSPB precedent.

Given the wide discretion accorded an agency in conducting a RIF, a RIF action will not be overturned "absent a clear abuse of discretion or a substantial departure from applicable procedures." Gandola v. Federal Trade Commission, 773 F.2d 308, 313 (1985) (Gandola). See also Ginnodo, 753 F.2d at 1064; Grier, 750 F.2d at 946. Consistent with this, if an "agency proves that the [RIF] regulations were invoked for a legitimate reason and that those regulations were properly applied to the individual employees . . . the agency action will be sustained." Gandola, 773 F.2d at 313 (citing Losure, 2 M.S.P.R. at 200).(7)

As relevant here, 5 C.F.R. § 351.402(b) provides:

In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined.

Applying the foregoing, "[a]gencies . . . must accommodate two elements, administrative structure and geography, in determining competitive areas." Grier, 750 F.2d at 946.

With regard to the first element--administrative structure--the term "activity" is not defined within the context of the RIF regulations. However, there is no support for the Agency's contention that the term "activity" was intended to incorporate the definition of "activity" under section 2421.4 of the Authority's regulations. Therefore, we reject the Agency's argument that the Arbitrator was required to apply the Authority's definition of "activity" in the context of the RIF regulations. In addition, we note that both the Arbitrator and the parties use the term "single administrative authority," rather than the term "activity under a separate administration." Although earlier versions of 5 C.F.R. § 351.402(b) contain the term "single administrative authority," it does not appear in the current version of 5 C.F.R. § 351.402(b). Compare 5 C.F.R. § 351.402(b) (1983), with 5 C.F.R. § 20.201(b)(2) (1963). However, there is no indication that the substitution was intended as a substantive change in the regulation. See 51 Fed. Reg. 318-19 (1986); 48 Fed. Reg. 13,368, 32,304, 49,462 (1983). In fact, since the change in the regulation, the courts and the Merit Systems Protection Board (MSPB) have continued to apply the regulation as if it contained the term "single administrative authority." See Ginnodo, 753 F.2d 1061; Williams v. Tennessee Valley Authority, 24 M.S.P.R. 555 (1984).

Precedent applying 5 C.F.R. § 351.402(b) establishes that a competitive area must include "all or that part of an agency in which employees are assigned under a single administrative authority." Grier, 750 F.2d at 946; see also Webb v. Department of Labor, 18 M.S.P.R. 13, 17 (1983). Although, as noted above, there is no regulatory definition of the term "single administrative authority," the MSPB has held that the term "must be associated with the degree and extent of administrative control . . . the head of an organization exercises over the operations, work functions and personnel administration for employees in that organization." Webb, 18 M.S.P.R. at 17 n.8. In particular, the MSPB has held that the term concerns the "authority to make decisions to establish or abolish positions, to assign duties, and to take personnel actions[.]" Coleman v. Department of Education, 21 M.S.P.R. 574, 577 (1984) (Coleman). Consistent with this precedent, in deciding whether the Kinlichee Boarding School constitutes a single administrative authority under 5 C.F.R. § 351.402(b), we consider the degree and extent to which it operated as an independent entity for administrative purposes. See Grier, 750 F.2d at 946; Coleman, 21 M.S.P.R. at 577; Webb, 18 M.S.P.R. at 17.

The statutes and regulations relied on by the Agency, and not disputed by the Union, establish that a school principal has authority, among other matters, to fill positions, remove employees "for cause," develop the school's financial plan, file compliance reports on academic standards, and determine the length of the school term. See Award at 29; Exceptions at 11 n.7. Thus, the principal has significant control over the day-to-day operations, work functions, and personnel administration of the Kinlichee Boarding School. Although certain personnel documents were issued by offices outside the Kinlichee Boarding School, the MSPB has ruled that the term "single administrative authority" concerns the authority to make decisions, rather than the authority to issue the documents by which the substantive decisions are executed. See Coleman, 21 M.S.P.R. at 577-78. Based on this evidence, we conclude that the Kinlichee Boarding School constitutes a single administrative authority under 5 C.F.R. § 351.402(b). See id. at 577; Webb, 18 M.S.P.R. at 17.

The fact that the Kinlichee Boarding School constitutes a single administrative authority does not end our inquiry because, under 5 C.F.R. § 351.402(b), a proper competitive area also must comply with the second element in the regulation: geography (the local commuting area). See Grier, 750 F.2d at 946. The "local commuting area" is defined as:

[T]he geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring ones) and the surrounding localities in which people live and can reasonably be expected to travel back and forth daily to their usual employment.

5 C.F.R. § 351.203. As relevant here, precedent applying 5 C.F.R. § 351.402(b) establishes that "no competitive area need be larger than the local commuting area." Grier, 750 F.2d at 946. In addition, decisions by the Court of Claims and the MSPB confirm that a competitive area may be smaller than the "local commuting area." See, e.g., Bashein v. United States, 279 F.2d 255 (Ct. Cl. 1960) (court upheld the validity of the Navy's designation of two shipyards, both within the Port of New York, as separate competitive areas) (Bashein); Lee v. Department of the Interior, 6 M.S.P.R. 669, 670 (1981) ("it is proper for an agency to have more than one competitive area within one geographical area") (Lee).

Before the Arbitrator, the Union contended that "three larger competitive areas were possible." See Award at 34. However, an agency is not required to enlarge a competitive area to provide a grievant with actual competition during a RIF. See Grier, 750 F.2d at 946 (an "agency may, but need not, expand the competitive area to provide actual competition.") (emphasis added). Moreover, it is clear that it is the commuting area of the agency office in which a RIF is taking place that is relevant, not the commuting areas of individual employees. Therefore, consideration of whether the grievant's home is within commuting distance of other locations is not relevant for determining the local commuting area. In addition, even where there are two or more offices within the same commuting area, an agency is not required to include both offices in the competitive area; an office that constitutes an appropriate administrative structure has its own commuting area for RIF purposes. See Bashein, 279 F.2d 255; see also Lee, 6 M.S.P.R. at 670.

Consistent with this analysis, we find that the Kinlichee Boarding School constitutes a single administrative structure within the local commuting area for RIF purposes. Further, there is no dispute that the competitive area includes all the employees within the competitive area so defined. Therefore, we conclude that the Agency's designation of the Kinlichee Boarding School as a competitive area is consistent with 5 C.F.R. § 351.402(b). See Grier, 750 F.2d at 946; Ginnodo, 753 F.2d at 1064.

The Agency has demonstrated that the Kinlichee Boarding School constitutes a proper competitive area under 5 C.F.R. § 351.402(b). As such, we find that the Arbitrator's award is inconsistent with 5 C.F.R. § 351.402(b). Accordingly, we conclude that the Arbitrator's award is deficient under section 7122(a)(1) of the Statute, and set it aside.

V. Decision

The award is set aside.




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

1. Member Cabaniss did not participate in this decision.

2. 5 C.F.R. § 351.402(b) (1997) provides:

A competitive area may consist of all or part of an agency. The minimum competitive area in the departmental service is a bureau, major command, directorate or other equivalent major subdivision of an agency within the local commuting area. In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined.

3. We note that, although both the Arbitrator and the parties use the term "single administrative authority," the current version of 5 C.F.R. § 351.402(b) contains the term "activity under [a] separate administration." Compare 5 C.F.R. § 351.402(b) (1983), with 5 C.F.R. § 20.201(b)(2) (1963). As discussed in more detail infra at section IV(C), there are no substantive differences between the terms.

4. Article 16, Section E of the parties' collective bargaining agreement, as set forth in the Arbitrator's award, provides:

RIF Competitive Areas. The Bureau Agrees to comply with the competitive areas as approved by the Department of the Interior.

Award at 11.

5. Section 2421.4 of the Authority's Regulations provides:

Activity means any facility, organizational entity, or geographical subdivision or combination thereof, of any agency.

6. The Agency refers to the following statutes and regulations in connection with its assertion that the principal had independent administrative authority: (1) 25 U.S.C. § 2012 (d)(1)(A)(i); and 25 C.F.R. § 38.7(a) (educators shall be hired by the local supervisor); (2) 25 U.S.C. § 2012 (e)(2) (supervisors may discharge employees "for cause"); (3) 25 C.F.R. § 39.61 (supervisor develops local financial plan); (4) 25 C.F.R. § 39.1 (individual schools directly funded); (5) 25 C.F.R. 36.60(b) (supervisor to submit compliance report for academic standards); (6) 25 C.F.R. § 38.11 (individual school may determine minimum length of school term). See Exceptions at 11 n.7.

7. In this connection, we reject the Agency's assertion that the Arbitrator's reliance on Losure was misplaced because, in the Agency's view, "[t]he proper standard for reviewing the Agency's decision . . . is whether the Agency clearly abused its discretion." Exceptions at 13 n.9 (citing Ginnodo, 753 F.2d at 1064 and Grier, 750 F.2d at 946). As the decision in Gandola makes plain, Losure (placing the burden of proof on an agency) is consistent with Gin