54:0156(20)AR - - AFGE Council 220 & SSA, Baltimore, MD - - 1998 FLRAdec AR - - v54 p156



[ v54 p156 ]
54:0156(20)AR
The decision of the Authority follows:


54 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 220

(Union)

and

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

0-AR-2877

_____

DECISION

May 1, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance that contested the Agency's implementation of a plan to redeploy personnel. We find that it is not possible to determine the Arbitrator's interpretation of a necessary provision of the collective bargaining agreement. Accordingly, we remand the award for further proceedings.

II. Background and Arbitrator's Award

In order to improve efficiency and customer service, the Agency developed a plan to redeploy headquarters and regional office staff to direct service positions located throughout the country. The Agency furnished a copy of the plan to the Union, made certain revisions in the plan based on the Union's comments, and notified the Union of its intent to implement the revised plan.

The Union requested negotiations and, after an impasse in negotiations was reached, requested the assistance of the Federal Service Impasses Panel (FSIP). After the Union withdrew its request for FSIP assistance, the Agency implemented the redeployment plan contained in its last offer, and the Union filed a grievance.

The Union claimed that the plan violated the reassignment provisions of Article 26 of the parties' national agreement and a 1992 memorandum of understanding (MOU) between the parties. The Agency argued that the redeployment plan was consistent with Article 26. The Agency also argued that negotiations on the redeployment plan were conducted pursuant to Article 4 of the national agreement(1) and that the applicability of the MOU was properly resolved through its implementation of its last offer.

The Arbitrator found that the Agency violated Article 26 and, for purposes of resolving the grievance, also "assume[d] that the Agency's action was violative of the requirements of the 1992 MOU, as written." Award at 20. Nevertheless, the Arbitrator ruled that the grievance could not be sustained.

The Arbitrator interpreted Article 4 of the national agreement as a mid-term bargaining provision that allowed the Agency to unilaterally propose changes during the term of the national agreement. In interpreting the agreement in this manner, he found no language in the mid-term bargaining provisions of the national agreement that precluded management from proposing changes that modified the terms of the existing agreement or binding past practice. He found that, although the redeployment plan conflicted with the national agreement and the MOU, the plan merely required a modification of those documents or "a conclusion that the Plan superseded those documents[.]" Id. at 22.

In these circumstances, he concluded that the Agency properly implemented its last best offer consistent with the Statute. Accordingly, the Arbitrator denied the grievance insofar as it protested the redeployment of eligible employees from organizational components covered by the plan.(2)

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is deficient on two grounds: (1) the award does not draw its essence from the collective bargaining agreement; and (2) the award violates public policy.

The Union argues that the award fails to draw its essence from the national agreement because the Arbitrator incorrectly determined that the scope of mid-term bargaining described in Article 4 includes changes that modify the national agreement. The Union asserts that modifications of the agreement are controlled by Article 7, Section 3 of the agreement. According to the Union, that section limits mid-term modifications or additions to the national agreement to instances of mutual agreement, with an exception that does not apply in this case.(3) The Union asserts that the Arbitrator's interpretation does not square with this clear and plain language and is implausible and irrational.

The Union also argues that the award is contrary to public policy because the award is contrary to the Authority's policy restricting the right to negotiate over matters that are covered by a collective bargaining agreement.

B. Agency's Opposition

The Agency contends that the exceptions should be denied because "the process issue of how the redeployment would be carried out was in fact joined at the bargaining table." Opposition at 16. The Agency claims that "[b]oth final proposals of each side dealt with Article 26, Section 4, noncompetitive ways of accomplishing this process." Id. The Agency maintains that

[t]he arbitrator essentially understood this point, and that is the essence of his decision, that the Agency meet [sic] its responsibility in regard to this matter, a point which should be sustained by the Authority by [denying] the union exceptions.

Id.

IV. Analysis and Conclusions

In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Statute provides that the Authority apply the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

Here, the Union does not claim that the arbitrator misinterpreted a controlling provision of the agreement. Rather, the Union claims that the issue resolved by the Arbitrator under Article 4 of the agreement is actually controlled by Article 7 of the agreement, which was not interpreted by the Arbitrator.

Article 7 of the agreement provides that negotiations to "add to, amend, or modify" the agreement may be "conducted only by mutual consent" of the parties. This requirement that negotiation over mid-term changes to the agreement be "only by mutual consent" would appear to limit "management-initiated changes" proposed under Article 4. However, without discussing Article 7, the Arbitrator found that management-initiated changes were "not limited." Award at 21.

It appears that there may be a conflict between the Arbitrator's interpretation of Article 4 and the terms of Article 7. At the very least, any interpretation of Article 4 must take into account the "mutual consent" provision of Article 7. The Arbitrator's decision fails to take this language into account. Absent findings by the Arbitrator on this matter, we are unable to determine whether the award is deficient.

In the private sector, where "the arbitrator fails to discuss critical contract terminology, which terminology might reasonably require an opposite result, the award cannot be considered to draw its essence from the contract." Cannelton Industries v. District 17, UMWA, 951 F.2d 591, 594 (4th Cir. 1991) (quoting Clinchfield Coal Co. v. District 28, UMWA, 720 F.2d 1365, 1369 (4th Cir. 1983)) (Cannelton Industries); Young Radiator Co. v. International Union, UAW, 734 F.2d 321, 326 n.5 (7th Cir. 1984) (Young Radiator). The practice of the courts in such circumstances of "critical ambiguity," Cannelton Industries, 951 F.2d at 594, is to remand the dispute to the arbitrator, despite the "general rule . . . that a reviewing court should either enforce or vacate an arbitration award," Young Radiator, 734 F.2d at 326.

The Authority has not previously decided a case where it appeared that there was an inconsistency between the agreement and the award at issue, but the relevant contract language was not interpreted by the arbitrator. However, no basis to depart from the private sector approach is argued or apparent. Accordingly, in this case and similar future cases, we will follow the practice in the private sector and remand such awards for the arbitrator to address the contract provision in dispute. A remand in such cases permits the arbitrator, who was the parties' choice to interpret and apply their agreement, to interpret in the first instance the provision that may be dispositive of the grievance.

In remanding the Arbitrator's award in this particular situation, we do not alter our practice of deferring to an arbitrator's interpretation of contract language and finding awards deficient when they fail to draw their essence from the parties' collective bargaining agreement. A remand is only appropriate in the unusual situation where it appears that the agreement and award are inconsistent, and the Authority is unable to assess the arbitrator's interpretation of relevant contract provisions.

For these reasons, the award is remanded to the parties for resubmission, absent settlement, to the Arbitrator. On resubmission, the Arbitrator should interpret and apply Article 7 and Article 4, as well as any other provisions the parties deem relevant, and take whatever action is appropriate on the basis of that interpretation and application. Either party may file timely exceptions to any supplemental award.

V. Decision

The award is remanded for further proceedings in accordance with this decision.(4)

APPENDIX

Article 4 (Negotiations During the Term of the Agreement on Management-Initiated Changes) pertinently provides:

Section 1--General

The Administration will provide the Union reasonable advance notice prior to implementation of changes affecting conditions of employment subject to bargaining under 5 U.S.C. 71. Upon notice from the Administration of a proposed change, the designated Union representative will notify the designated management representative of its desire to consult and/or negotiate on the change within the timeframe set for the level of negotiations involved.

Article 7 (Duration of Agreement) pertinently provides:

Section 2--Duration of Agreement

This agreement will remain in full force and effect for 3 years from its effective date and automatically renew itself from year to year thereafter. However, either party may give written notice and a list of proposals to the other party not more than 120 or less than 90 calendar days prior to the expiration date of its intention to reopen, to amend, modify or terminate the agreement.

Section 3--Reopener

Negotiations during the term of this Agreement to add to, amend or modify this Agreement may be conducted only by mutual consent of the parties.




FOOTNOTES:
(If