53:1445(132)AR - - Puget Sound Naval Shipyard, Bremerton WA and AFGE Local 48, Bremerton Metal Trades Council - - 1998 FLRAdec AR - - v53 p1445



[ v53 p1445 ]
53:1445(132)AR
The decision of the Authority follows:


53 FLRA No. 132

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

PUGET SOUND NAVAL SHIPYARD

BREMERTON, WASHINGTON

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 48

BREMERTON METAL TRADES COUNCIL

(Union)

0-AR-2807

_____

DECISION

February 27, 1998

_____

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

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James E. Reed 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 Arbitrator ruled that the Agency violated the parties' collective bargaining agreement by failing to promote temporarily the grievant from a WG-05 Fabric Worker to a WG-07 Fabric Worker, and awarded the grievant a temporary promotion to WG-07 Fabric Worker and backpay with interest. For the following reasons, we find that the Arbitrator exceeded his authority and we set the award aside.

II. Background and Arbitrator's Award

The Agency assigned the grievant, a WG-05 Fabric Worker, to work with two WG-09 Fabric Workers from November 1, 1991, through November 30, 1993. At the end of November 1993, the Agency reassigned the grievant to his previous position.

The Union filed a grievance "claiming that the grievant ha[s] not been paid the proper pay grade from November 1, 1991, [through] November 30, 1993." Award at 5. The parties did not resolve the grievance and went to arbitration, stipulating the issue as:

Did the [g]rievant perform the Wage Grade 9 [d]uties of a Fabric Worker from November 1, 1991, through November 16, 1993? If so, what should the remedy be?

Exceptions at 1.

In the award, the Arbitrator reframed the issue as:

Was the [g]rievant, a WG-05[] Fabric Worker, doing WG-09[] Fabric Worker work for WG-05 [w]orker pay? If so[,] what is the appropriate remedy?

Award at 1.

During arbitration, the Union argued that, "[a]s to the issue involved in this grievance, that of the [g]rievant performing WG-9 work while only receiving WG-5 pay," it had proven that for the 2-year period in question the grievant had performed the duties of a WG-09 Fabric Worker. Id. at 7. The Agency argued that the issue before the Arbitrator "requires a yes or no answer to the question of whether the [g]rievant performed WG-9 work for a period of two years." Id. at 12.

The Arbitrator effectively held that the grievant had not performed the work of a WG-09 Fabric Worker for the 2-year period. The Arbitrator determined that the grievant had performed some WG-09 work during the 2-year period, but stated that "to say that the [g]rievant should have been given a temporary [promotion to the WG-09 level] is probably too much a stretch of the facts." Id. at 17.

The Arbitrator then went on to state that "[h]owever, it is also clear that the [g]rievant did perform, on a regular basis, WG-7 level work" during the 2-year period. Id. Further, the Arbitrator found that the Agency had failed to pay the grievant at the WG-07 level, and that such a failure violated the parties' collective bargaining agreement. The Arbitrator ordered the Agency to give the grievant a temporary promotion to WG-07 Fabric Worker and backpay with interest for the 2-year period.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the stipulated issue required the Arbitrator to decide whether the grievant performed the duties of a WG-09 Fabric Worker for 2 years. The Agency argues that the Arbitrator erred when he reframed the stipulated issue by eliminating the reference to the 2-year period during which the grievant allegedly performed WG-09 Fabric Worker work. The Agency alleges that because the Arbitrator found that the grievant performed WG-07 work on a regular basis during the 2-year period, "the inference is that he did not perform [WG-09] level work continuously for two years." Id. at 2. Further, the Agency contends that the issue as reframed resulted in an award that was not available under the stipulated issue.

The Agency also argues that the award does not establish that the grievant met minimum qualifications for a promotion to either WG-07 or WG-09 Fabric Worker. In addition, the Agency contends that the Arbitrator failed to conduct a fair hearing and ignored the collective bargaining agreement's requirement that employees compete for temporary promotions.

B. Union's Opposition

The Union argues that the stipulated issue and the issue as framed by the Arbitrator are essentially the same, and that the grievant performed the duties of a WG-09 Fabric Worker without being compensated at the WG-09 level.

The Union also contends that the Agency's other exceptions have no merit.

IV. Analysis and Conclusions

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

An example of an arbitrator exceeding his authority is found in Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986) (Veterans Administration). The issue before the arbitrator in Veterans Administration was whether the agency's termination of the grievant complied with the parties' collective bargaining agreement and applicable laws and regulations. The arbitrator concluded that the agency's action did not violate the collective bargaining agreement or applicable laws and regulations, but nonetheless went on to order the agency to inform the grievant of agency vacancies and to allow him to apply for those vacancies. The Authority held that the arbitrator exceeded his authority by failing to confine his decision and any possible remedy to the issues submitted as he unambiguously framed them. See Veterans Administration, 24 FLRA at 451.

In applying the principles set forth above and concluding that the arbitrator exceeded his authority, the Authority stated the following:

The [a]rbitrator clearly specified the issue on the merits to be whether the grievant's termination was in violation of the collective bargaining agreement or applicable law and regulation and, if so, what remedy [was] appropriate. When the [a]rbitrator answered precisely that issue by concluding that the grievant's termination did not violate the agreement or any applicable law and regulation, the [a]rbitrator had decided the merits of the issue submitted to him. By further ruling that the grievant be informed of and be allowed to apply for agency vacancies and directing the remedial relief . . . the [a]rbitrator exceeded his authority by deciding, and awarding a remedy concerning[,] an issue not submitted to arbitration. . . . Arbitrators may legitimately bring their judgment to bear in reaching a fair resolution of a dispute as submitted to or formulated by them, but they may not decide matters which are not before them.

Id. (emphasis added).

The Authority's rationale in Veterans Administration applies here. The Union and the Agency stipulated the issue: Did the grievant perform WG-09 Fabric Worker duties from November 1, 1991, through November 16, 1993, and, "[i]f so, what should the remedy be?" Exceptions at 1. The Arbitrator reframed the issue as whether the grievant was doing WG-09 Fabric Worker work for WG-05 Fabric Worker pay, and, "[i]f so[,] what is the appropriate remedy?" Award at 1. The Arbitrator answered the stipulated issue, stating that to find that "the [g]rievant should have been given a temporary [WG-09] position is probably too much a stretch of the facts." Id. at 17. When the Arbitrator answered that issue by concluding that the grievant was not entitled to a promotion to the WG-09 level, he, like the arbitrator in Veterans Administration, had decided the stipulated issue. See Veterans Administration, 24 FLRA at 451.

Although he found that the grievant was not entitled to a temporary promotion to the WG-09 level, the Arbitrator did not deny the grievance. Instead, he awarded the grievant a temporary promotion to a WG-07 Fabric Worker and backpay with interest for the 2-year period. By finding that the grievant had regularly performed WG-07 work and should be compensated at that level for that work, the Arbitrator, like the arbitrator in Veterans Administration, "exceeded his authority by deciding, and awarding a remedy concerning an issue not submitted to arbitration." Id. (2) In so doing, the Arbitrator exceeded his authority.(3)

Accordingly, we set aside the award because the Arbitrator exceeded his authority.

V. Decision

The Arbitrator's award is set aside.(4)


Dissenting Opinion of Member Wasserman:

I respectfully dissent because I would find that the Arbitrator did not exceed his authority in stating, and responding to, the stipulated issue.

The majority cites Veterans Administration, 24 FLRA 447 (1986) to support its view that the Arbitrator exceeded his authority in this case. My colleagues quoted from that case, including the following: "Arbitrators may legitimately bring their judgment to bear in reaching a fair resolution of a dispute as submitted to or formulated by them, but they may not decide matters which are not before them." Id. at 451. I agree with this precedent, but would find in this case that the Arbitrator confined his opinion and remedy to matters that were before him.

The stipulated issue was:

Did the [g]rievant perform the Wage Grade 9 [d]uties of a Fabric Worker from November 1, 1991, through November 16, 1993? If so, what should the remedy be?

Exceptions at 1.

The Arbitrator determined that the employee was performing work at a higher grade level than his WG-05 position of record, but that it was not at the WG-09 level. Instead, the Arbitrator determined that the out-of-grade work performed by the employee was at the WG-07 level. Accordingly, the Arbitrator awarded a retroactive temporary promotion to the WG-07 level instead of the WG-09 level. The Arbitrator's review of the issue and record before him comports with well established precedent that gives the arbitrator some latitude in determining his award.

As the majority noted, there were two exceptions to the Arbitrator's award. First, the Agency argued that the Arbitrator erred when he reframed the issue to eliminate the reference to the two year period. Although the Arbitrator changed the wording somewhat, it was essentially the same as the one stipulated to by the parties. Regardless of the wording of the issue, it is clear that the Arbitrator resolved the matter in terms of the time frame set forth in the grievance and the stipulated issue. For example, his findings are limited specifically to the period from November 1991 through November 1993. In addition, the Arbitrator did answer the express stipulated question with regard to WG-09 work. I note that there is nothing in the stipulated issue that requires a finding of continuous, or even predominant, performance of the higher-graded work. On this basis, it is clear that the Agency's main exception -- that the Arbitrator exceeded his authority because the redefined issue removed the two-year time frame and therefore was not essentially the same as the stipulated issue -- has no merit.

With regard to the second exception in which it is argued that the Arbitrator exceeded his authority by addressing a matter outside the stipulated issue, i.e., by addressing the performance of WG-07 duties instead of WG-09 duties, I also disagree that the Arbitrator exceeded his authority in this respect. An appropriate analogy arises in cases where, in resolving a stipulated issue of whether an agency had just cause to remove the grievant, the arbitrator finds instead that there was just cause for a suspension. It is clear that we would not find that the arbitrator exceeded his authority in such a case.

Similarly, in this case, the Arbitrator concluded that the Agency had not assigned sufficient WG-09 work to constitute a temporary promotion and then proceeded to address a "lesser included" infraction, temporary promotion to a WG-07 position. This is quite different from a case in which an arbitrator exceeds his authority by deciding an entirely different issue than the one presented to him. See, e.g., Bremerton Metal Trades Council and U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 47 FLRA 406 (1993) (arbitrator went beyond issue of length of back pay entitlement and designated a different group of employees to receive the back pay than those referred to in the stipulation); Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122 (1990) (in a grievance concerning a specific vacancy announcement, arbitrator exceeded his authority by ordering the agency to select the grievant for the next available opening).

The stipulated issue did not contain any specifically limiting language that would preclude the Arbitrator from looking at related questions if he deemed it necessary. In the absence of such language, I am persuaded that the issue was properly before the Arbitrator by the fact that the grievance alleges a violation of Article 23, which concerns assignment of "non-supervisory duties above the level of [employees'] current positions." In addition, three job descriptions, including that of WG-07, were submitted to the Arbitrator. It is clear from the submission of the WG-07 position description that the parties had the opportunity "to argue the merits of the issue before the [a]rbitrator[.]" American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 47 FLRA 692, 699 (1993).

My position is supported by longstanding precedent. We have previously stated:

the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. For example, Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3rd Cir. 1982) [Mobil Oil Corp.] In particular, the Federal courts permit an arbitrator to extend the award to issues that necessarily arise from the issues specifically included in a submission agreement or the arbitrator's formulation of the issues submitted in absence of a stipulation by the parties. See Kansas City Luggage and Novelty Workers Union Local No. 66 v. Neevel Luggage Mfg. Co., 325 F.2d 992, 994 (8th Cir. 1964) (emphasis added).

Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518-19 (1986) (Air Force Space Division).

In Air Force Space Division, the specified issue concerned the application of the collective bargaining agreement to one particular vacancy, but the award provided a remedy applicable to all future openings. Id. at 517-18. We held that remedial expansion to be appropriate in light of the broad remedy requested by the union and the general question of applicability of the contract having been addressed by the parties during the grievance process. Id. at 519. Similarly, in the instant case, the remedy is responsive to the issue as it was litigated, since the parties presented evidence regarding WG-07 duties.

I also note the conclusion of the 3rd Circuit in Mobil Oil Corp. that a reviewing body must look both to the submitted issue and to the parties' contract to determine the arbitrator's authority. See 679 F.2nd at 302. In this case, reading the Arbitrator's award in light of Article 23, I do not believe that the Arbitrator exceeded his authority by addressing the issue of whether the grievant had been temporarily promoted to the higher level position of WG-07 rather than WG-09. The Arbitrator found a violation of the collective bargaining agreement, which required a temporary promotion whenever employees were "assigned non-supervisory duties above the level of their currrent positions for a pay period or more," Award at 5, and his Award orders that which would have happened absent the violation that he found.

In the instant case, there is no doubt that the Arbitrator's award extended to "issues that necessarily arise from the issues specifically included in [the] submission agreement" or the stipulated issue. Air Force Space Division, 24 FLRA at 519. In my view, the majority's decision limits the Arbitrator's ability to review and remedy issues that are inextricably related to the stipulated issue. Moreover, the majority decision imposes a limitation on the Arbitrator's authority to an extent that does not further good labor-management relations. As the Supreme Court has said, parties to an agreement select an arbitrator to bring an "informed judgment to bear in order to reach a fair solution . . . ." Steelworkers v. Enterprise Wheel, 363 U.S. 593, 597 (1960). Stipulations may be appropriately crafted to limit that discretion, but unless they are exceedingly narrow, unlike here, they do not eliminate it. The majority decision would, unfortunately, do so.




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

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. The fact that the Arbitrator found a violation of the agreement regarding the WG-07 matter and awarded a remedy, whereas the arbitrator in Veterans Administration did not find any agreement violation but nonetheless awarded a remedy, is not a pertinent distinction with respect to whether the arbitrators exceeded their authority. The relevant point is that in both cases, the arbitrators addressed and resolved an issue that the parties did not submit to arbitration.

3. We respectfully disagree with our dissenting colleague's description of the award as extending to "'issues that necessarily arise from the issues specifically included in [the] submission agreement' or the stipulated issue." Slip op. at 10, quoting Air Force Space Station, 24 FLRA at 519. As reflected in the award, the Arbitrator's resolution of the stipulated issue did not require him to consider the additional issue of whether the grievant performed WG-07 work. Rather, he addressed that additional issue only after resolving the stipulated issue. In this regard, we note that the deference accorded to the Arbitrator's interpretation of the submission agreement applies to his framing of the issue, in the absence of a stipulation by the parties. See Air Force Space Station, 24 FLRA at 519 (the arbitrator framed the issue based on competing versions presented by the parties and he decided the issue that he framed). In the instant case, as relevant here, the issue that the parties stipulated is the same as the issue the Arbitrator framed, and neither one required him to address the issue that he went on to decide.

In our view, finding this award deficient is not inconsistent with the Authority's treatment of discipline awards -- the analogy suggested by the dissent. Here, the Arbitrator found that the Agency did not commit the act complained of by the grievant. Award at 17. In discipline cases, after finding that the discipline of a grievant violates the just cause provision of a collective bargaining agreement, an arbitral remedy reducing the discipline -- from, for example, a 1-day suspension to a written repri