54:0056(7)AR - - NLRB and NLRB Union - - 1998 FLRAdec AR - - v54 p56



[ v54 p56 ]
54:0056(7)AR
The decision of the Authority follows:


54 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL LABOR RELATIONS BOARD

(Agency)

and

NATIONAL LABOR RELATIONS BOARD UNION

(Union)

0-AR-2866

_____

DECISION

April 23, 1998

_____

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

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Paul J. Fasser, Jr. filed by the National Labor Relations Board (Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The National Labor Relations Board Union (Union) filed an opposition to the Agency's exceptions, and the Agency filed a response to the Union's opposition.(2)

The Arbitrator determined that the Agency failed to comply with the parties' collective bargaining agreement when it failed to grant a transfer to the grievant. For the following reasons, we conclude that the Arbitrator's award is contrary to law. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The grievant began working in the Brooklyn Regional Office of the Agency in 1989. In 1993, when the grievant's spouse took a job in Washington, D.C., the grievant requested and received consecutive details to two separate Agency offices in Washington. In the meantime, the grievant had also placed his name on a transfer register in an attempt to receive a permanent transfer to Washington. In early 1994, the grievant's details in Washington ended. The grievant then took a 30-day leave of absence and, when at the end of the 30 days he still had not received a permanent position in Washington, he resigned from the Agency. Award at 1-2, 5.

As pertinent here, the Union argued before the Arbitrator that the Agency violated Article 33 of the collective bargaining agreement(3) when, in December 1993, the Agency's Office of Appeals hired a recent law school graduate instead of granting the grievant a transfer. The Union asserted that the Agency had an obligation to notify the Union of its recent hires and transfers, and that the Agency should have considered the grievant for a transfer before it hired a recent law school graduate "off the street." Id. at 9.

The Arbitrator found that the grievance was timely. He stated that:

It is clear from the record that the Agency did not advise every employee on the transfer register of its hiring and transfer activities. Much of the information was learned by word of mouth. . . . Article 33 provides that the losing employees on the register and the Union would be advised of each transfer. There is no hard evidence that the Agency held up this end of the bargain.

Id. at 11-12. Thus, the Arbitrator stated that the grievance was "a continuing one," and was timely filed. Id. at 12.

The Arbitrator rejected the Agency's assertion that it did not transfer the grievant because the quality of the grievant's work indicated that he had less potential than did the recent law school graduate. The Arbitrator based this rejection on the grievant's performance appraisals, which stated, among other things, that the grievant "possesse[d] confidence, good judgment, and a logical deliberate approach that generally enabled him to identify issues, theories and nuances posed by most of the less complex cases assigned to him;" and that:

[The grievant] produced a relatively large volume of work during this seven month period at, or close to, the Agency and Regional Office time goals. [He] made sincere efforts to complete most of his assignments expeditiously and often worked outside normal agency hours, often without claiming compensation, in an attempt to meet or exceed the Agency guidelines.

Id. at 14-15 (quoting Agency Exh. 17).

The Arbitrator concluded that, in view of the grievant's appraisals, it was "not believable that any recent law school graduate from any law school could better serve the mission of the Agency than could [the] [g]rievant." Id. at 16 (emphasis in the original). Accordingly, the Arbitrator concluded that the Agency acted "arbitrarily and unreasonably," in violation of Article 33 of the parties' agreement, when it decided to hire a recent law school graduate rather than to transfer the grievant. Id. To remedy the Agency's violation of the parties' agreement, the Arbitrator ordered the Agency to offer the grievant "the next available Agency vacancy for which he is qualified in the Washington area." Id.

III. Discussion

A. Positions of the Parties

1. Agency's Exceptions

The Agency contends that the award is deficient for four reasons.

First, the Agency asserts that the Arbitrator's finding that the Agency did not comply with its duty to inform the Union and employees of transfers is a nonfact. The Agency maintains that "[t]he Union introduced no evidence that the Agency failed to comply with this contract provision." Thus, the Agency contends that the Arbitrator erred in finding that the grievance was timely. Exceptions at 17.

Second, the Agency contends that the Arbitrator's interpretation of the grievant's performance appraisals was inaccurate because "the written narratives, in fact, contain numerous negative comments, suggesting significant difficulties in [the grievant's] performance." Id. at 7-8.

Third, the Agency argues that the award fails to draw its essence from the parties' agreement because: (1) Article 33, Section 7 of the collective bargaining agreement does not concern new hires, and only requires that the Agency's selection from the transfer register list not be "arbitrary or unreasonable;" id. at 19; and (2) even if Article 33, Section 7 concerns new hires, the choice of the new graduate over the grievant was not "arbitrary or unreasonable" since the Agency found that the grievant's performance appraisals were inadequate. Id. at 12-13. The Agency also asserts that Article 33, Section 5(b) does not prohibit the Agency from basing its non-transfer selections on arbitrary or unreasonable considerations. Id. at 5-6.

Fourth, the Agency maintains that the award is contrary to law because it interferes with management's right under section 7106(a)(2)(C)(ii) of the Statute to fill positions from any appropriate source. Id. at 21-22. The Agency notes that section 7106(a) is subject to subsection (b). However, the Agency contends that Article 33, on which the Arbitrator based the award, is neither a procedure nor an appropriate arrangement under subsection (b). Among other things, the Agency states that Article 33 "cannot reasonably be construed as an arrangement designed to overcome the adverse effects flowing from management's exercise of a reserved right." Id. at 30. Instead, according to the Agency, Article 33 only "provides a benefit to employees -- the opportunity to be considered for a 'voluntary' paid transfer." Id.

2. Union's Opposition

The Union asserts that the Agency's exceptions "do[] not provide a basis for finding an award deficient." Opposition at 1. With regard to the Agency's first exception, the Union asserts that the Agency is raising an issue of procedural arbitrability, which is not a basis for finding that the award is deficient. Id. at 4.

As for the Agency's assertion that the Arbitrator's interpretation of the performance appraisals constitutes a nonfact, the Union states that the Authority should not second guess the Arbitrator's factual findings. Id. at 9.

With regard to the Agency's third exception, the Union maintains that the Agency violated Article 33, Section 7, when it failed to consider the grievant for a transfer. According to the Union, the fact that the Agency decided to hire a new graduate rather than to transfer an experienced Agency attorney is sufficient evidence of arbitrariness and unreasonableness. Id. at 7.

With regard to the Agency's fourth exception, that the award is contrary to law, the Union maintains that Article 33 concerns a "method and means of assisting Agency employees in seeking broader opportunities in other Regional and/or Headquarters offices[.]" Id. at 10. The Union asserts that Article 33 results from the Agency's agreement to a proposal concerning methods and means under section 7106(b)(1), and thus, that the Agency is bound to comply with the provision. Id. at 10-12.

B. Analysis and Conclusions

1. The Union's Grievance was Timely.

The Arbitrator found that the Union's grievance was timely. Thus, the Arbitrator concluded that the grievance was procedurally arbitrable.

Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge an arbitrator's determination of procedural arbitrability itself. U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996). Such grounds include bias on the part of the Arbitrator or a showing that the Arbitrator exceeded his authority. Id. The Agency's exception directly challenges the timeliness of the grievance. As such, the exception directly challenges the Arbitrator's determination of procedural arbitrability, a matter that the Authority does not consider. See id.

2. The Arbitrator's Interpretation of the Performance Appraisals does not Constitute a Nonfact.

The Agency maintains that the Arbitrator based his award on a misinterpretation of the grievant's performance appraisals. We construe this as an assertion that the award is based on a nonfact. To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. 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). A party may not raise nonfact allegations concerning a matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

The interpretation of the performance appraisals is a matter that the parties clearly disputed below. See Exceptions, Attachment 28 at 11-13 (Agency's Brief to Arbitrator). Accordingly, it does not constitute a nonfact.

3. The Arbitrator's Award does not Fail to Draw its Essence from the Collective Bargaining Agreement.

Article 33, Section 7 of the collective bargaining agreement states that "the selection of any employee from transfer registers shall not be based on arbitrary or unreasonable considerations." The Arbitrator found that the Agency violated this section of the agreement, because:

It is not believable that any recent law school graduate from any law school could better serve the mission of the Agency than could [the grievant]. It must therefore be found that, because the basis for the Agency's action is not convincing, it acted arbitrarily and unreasonably. . . .

Award at 16 (emphasis in original).

The Arbitrator found, in effect, that, in the circumstances of this case, it was arbitrary and unreasonable for the Agency not to select the grievant who had good performance appraisals, and instead to hire an untested recent graduate. Thus, the Arbitrator interpreted Section 7 as providing that the selection or nonselection of an employee from the transfer list shall not be arbitrary or unreasonable. The Agency has provided no basis for finding this interpretation of Article 33 implausible, irrational, or unconnected to the wording of the agreement. Thus, the Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

4. The Arbitrator's Award is Contrary to Law.

The Agency argues that the award conflicts with its right under section 7106(a)(2)(C)(ii) to make selections from any appropriate source. The Union maintains that the provision is enforceable, because Article 33, Section 7 of the parties' agreement results from the Agency's election to bargain under section 7106(b)(1) about the "method and means of assisting Agency employees in seeking broader opportunities in other Regional and/or Headquarters offices[.]" Opposition at 10.

Consistent with Authority precedent, the Arbitrator's award directing the Agency to offer the grievant the "next available Agency vacancy for which he is qualified in the Washington area" affects the right of the Agency to select from any appropriate source. See Pennsylvania National Guard and Association of Civilian Technicians and Pennsylvania National Guard and Association of Civilian Technicians, Pennsylvania State Council, 35 FLRA 478, 486 (1990) (arbitrator's award requiring agency to select one of four original applicants for a job conflicted with section 7106(a)(2)(C)(ii)). In cases where an award affects management's rights under section 7106(a)(2), the Authority examines whether the award remedies a violation of "either applicable law, within the meaning of section 7106(a)(2), or a contract provision that was negotiated pursuant to the exceptions to section 7106(a) that are set forth in section 7106(b)."(4) U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 153 (1997).

There is no contention that the award remedies a violation of applicable law. Instead, it is clear that the award remedies the Agency's violation of Article 33, Section 7. As for whether Article 33, Section 7 was negotiated pursuant to section 7106(b), the Union does not dispute the Agency's assertion that Article 33, Section 7 does not constitute either a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3). In particular, the Union does not respond in any way to the Agency's contention that the provision does not constitute a procedure, and the Union expressly asserts that the Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service) analysis of the applicability of section 7106(b)(3) is not relevant to this case. Opposition at 9-11. As a result, the only issue remaining is whether, as the Union contends, Article 33, Section 7 results from the Agency's election to bargain over the methods and means of performing work under section 7106(b)(1) of the Statute.(5)

There are two prongs to the Authority's current test for determining whether a provision concerns the methods and means of performing work. First, the provision must concern a "method" or "means" as defined by the Authority. In this regard, the Authority construes "method" to refer to "the way in which an agency performs its work." International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996) (emphasis added). The term "means" refers to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. Second, it must be shown that (1) there is a direct and integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency's mission; and (2) the provision would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 420 (1993).

Applying Prong I, no basis is apparent for concluding that Article 33, Section 7, relates in any way to a "method" or "means" as defined by the Authority. That is, there is no basis for finding that Article 33, Section 7 relates to a method or means of performing work. In this regard, the Union asserts only that the provision assists Agency employees "in seeking broader opportunities." Moreover, as plainly worded, Article 33, Section 7, provides only that Agency decisions to select employees from transfer registers shall not be based on arbitrary or unreasonable considerations. No connection has been established or is apparent between the provision, encompassing requirements governing decisions on transfer, and the way the Agency performs its work. Accordingly, the Union's assertion that the provision was negotiated under section 7106(b)(1) is not supported.(6)

In sum, the Union has not established that the provision was negotiated pursuant to section 7106(b)(1). Accordingly, as the award affects the Agency's rights to make selections under section 7106(a)(2)(C) of the Statute, it is deficient as contrary to law.

IV. Decision

The award is set aside.

Concurring opinion of Don Wasserman

I concur in the decision to set aside the award, consistent with the analysis of my colleagues. I note, however, that I join in this decision, because the Union expressly stated that the analysis of 7106(b)(3) in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service) is not applicable and that the contract provision in this case involves a "method or means" of performing work, as referenced in section 7106(b)(1).

It is clear that selection for vacancies is a reserved management right under 5 U.S.C. § 7106(a)(2)(C), and that the applicable language of Article 33 implicates that right. An arbitrator may impose limits on the exercise of a management right if he or she finds either a violation of applicable law, or a violation of a contract provision that comes within the scope of section 7106(b), which constitutes an exception to section 7106(a). U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 153 (1997) (BEP).

Upon review of the grievant's laudable performance and promotion history, the Arbitrator determined that the grievant's non-selection from the transfer list violated Article 33. Award at 13-16. Article 33, Section 7 of the parties' collective bargaining agreement states, "The selection of employees from transfer registers shall not be based on arbitrary or unreasonable considerations." Award at 4. Such general standards that guide the agency's exercise of its reserved management rights are viewed as "appropriate arrangements." See, e.g., U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 273 (1995) ("the Authority has long held that contract provisions establishing general standards, including 'fair,' or 'for just or specific cause,' to guide the exercise of management's right to discipline constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute").(*)

Moreover, in this case, the Arbitrator identified the provisions of Article 33 as "the contractual transfer arrangement" (emphasis added). Award at 16. He also referred to persons on the transfer list as "losing employees on the register," Award at 12, thereby revealing his understanding of the transfer list as an appropriate arrangement for employees adversely affected by the agency's exercise of its right to select employees for transfers. In any event, the grievant was adversely affected by the exercise of management's rights.

When an arbitrator has enforced a provision of the parties' collective bargaining agreement that constitutes an arrangement within the meaning of section 7106(b(3) of the Statute, we apply the analysis of Customs Service, 37 FLRA 309 to determine whether the arbitrator's enforcement of the agreement is contrary to section 7106(a)(2)(A) and (B). BEP, 53 FLRA at 153 n.8. Under the Customs Service analysis, an arbitrator's enforcement of an arrangement within the meaning of section 7106(b)(3) is not contrary to management rights unless the enforcement would abrogate the exercise of a management right. Customs Service, 37 FLRA at 314. The requirement that selections or non-selections be non-arbitrary and reasonable does not abrogate the agency's right to select; it merely provides guidance regarding the exercise of that right. Management's right to make reasonable and non-arbitrary selections remains unconstrained.

As a last legal hurdle, an arbitration award that affects management rights through enfor