U.S. Department of Health and Human Services, Food and Drug Administration, Pacific Region and National Treasury Employees Union, Chapter 212
[ v55 p331 ]
55 FLRA No. 53
U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
NATIONAL TREASURY EMPLOYEES UNION
March 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S.Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Samuel A. Vitaro filed by the Agency under section 7122(a)(2) 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 sustained two grievances filed by the Union, finding that the Agency violated its collective bargaining agreement with the Union (the Agreement) and breached its statutory duty to bargain when it transferred several unit employees to an office in another city as part of an Agency reorganization effort. The transfer effectively removed those employees from the bargaining unit.
For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Union is the exclusive representative of a bargaining unit consisting of approximately 13 employees at the Agency's Regional Office in Oakland (the Oakland office). In July 1994, the Agency decided that it would conduct a reorganization. As a part of that reorganization, six bargaining unit employees would be reassigned from the Oakland office to the Agency's San [ v55 p332 ] Francisco District Office in Alameda (the Alameda office). [n1] Four of the employees were to be reassigned geographically and organizationally, while the other two physically would remain in the Oakland office, but would be organizationally reassigned to the staff of the Alameda office. The reassignments effectively would remove the six employees from the bargaining unit, and place them in an office with approximately 160 unrepresented employees. The Agency prepared a draft outlining the proposed reorganization, but did not furnish the Union with a copy because the parties were already negotiating, as a separate matter, over the Agency's planned relocation of the Oakland office.
After completing bargaining concerning the relocation of the Oakland office, on July 19, 1995, the Agency notified the Union that the affected employees would be reassigned on August 6. [n2] The Union responded to the July 19 notice by filing a grievance on the same day, alleging that the Agency violated law, including the Statute, [n3] and the parties' Agreement by attempting to break the Union and intimidate its membership. The Union subsequently requested that the Agency provide information that it needed for representational activities and made a formal request to engage in impact and implementation bargaining. The Union also asked that the reorganization not be implemented until the Agency provided the requested information and completed bargaining.
The parties held a meeting on August 3, during which the Agency stated that it would not bargain with the Union over the "numbers, types and grades of employees" involved in the reorganization plan, and that it "intended to implement the reassignments as scheduled." Award at 10. Following the meeting, on the same day, the Union submitted several proposals to the Agency for negotiation. [n4] The Union also reminded the Agency that, pursuant to the Agreement, the Agency "could not implement any changes until bargaining was completed." Id. at 11.
The Agency rejected the Union's request to delay the reassignments and ordered the employees in question to report to their new duty stations on August 7. On that day, the Union filed a second grievance alleging that the Agency violated law, including the Statute, [n5] and the parties' Agreement by implementing the proposed changes without completing bargaining and without an "emergency or overriding exigency to justify such implementation." Id. at 12. Subsequently, the Union complained to the Agency that it had not received a complete response to its information requests. The Agency maintained that it had provided all information responsive to the Union's requests. The Union invoked arbitration on the first and second grievances on August 21 and September 7, respectively.
The Arbitrator considered the grievances jointly and framed the issues as follows:
1. Whether the Union submitted a timely grievance? [n6]
2. Whether or not the grievance was timely, did the Union submit timely negotiable proposals?
3. Whether the Agency violated the contract and 5 U.S.C. Section 7116(a)(5) (and (a)(1) derivatively) when it unilaterally implemented the restructuring without bargaining? If so, what is the remedy?
4. Whether the Agency's restructuring of the Regional Office interfered [sic], coerced and discriminated against bargaining unit employees in violation of 5 U.S.C. Sections 7116(a)(1) and (2) by transferring their positions out of the bargaining unit? If so, what is the remedy?
Id. at 13. The Arbitrator addressed the second and third issues together. The Arbitrator recognized that the regional supplement to the Agreement required the Union to submit its proposals within ten working days after learning of the reorganization. [n7] However, the [ v55 p333 ] Arbitrator concluded that the Union's 1-day delay in submitting the proposals was "properly excusable" due to the Agency's failure to provide the Union with "[c]opies of all available pertinent information upon which" the proposals are based, as required by the Agreement. Id. at 22.
The Arbitrator also rejected the Agency's argument that the proposals did not at all relate to impact and implementation bargaining. Specifically, the Arbitrator found that the proposals relating to the establishment of a joint team to assess the workload of employees remaining in the Oakland office, and the proposal relating to the layout of office space for those employees, were proper subjects of impact and implementation bargaining. The Arbitrator concluded that the Agency had violated section 7116(a)(5) of the Statute by failing to bargain over these and other impact and implementation proposals before the reassignments were implemented.
Regarding the issue of whether the Agency was required to engage in substantive bargaining with the Union over "permissive" subjects pursuant to section 7106(b)(1) of the Statute, the Arbitrator noted that the Agency essentially conceded that Executive Order 12,871 (the Executive Order) compelled agency heads to bargain over matters set forth in section 7106(b)(1) of the Statute. [n8] However, the Arbitrator found that the Union's argument that the Executive Order gave arbitrators the authority to order agencies to bargain over matters covered by section 7106(b)(1) contradicted the Executive Order itself. Accordingly, the Arbitrator concluded that he was "without authority to enforce the Executive Order." Id. at 26.
The Arbitrator addressed the Agency's claim that, even though the proposals concerned section 7106(b)(1) matters, because they also interfered with management rights under section 7106(a) of the Statute, they were outside the duty to bargain. In this regard, the Arbitrator gave retroactive effect to National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), wherein the Authority found that section 7106(b)(1) constitutes an exception to section 7106(a) for matters that fall within both sections. Applying VAMC, Lexington, the Arbitrator found that the Agency had a statutory duty to engage in substantive bargaining over the reorganization plan, and that any purported impact of the Union's proposals on management's rights under section 7106(a) of the Statute did not exempt the Agency from this obligation. The Arbitrator concluded that the Agency's failure to engage in substantive bargaining over the Union's section 7106(b)(1) proposals relating to the Regional Office's restructuring violated section 7116(a)(5) of the Statute. The Arbitrator also found that the Agency's failure to give the Union notice of the reorganization "'as early as practicable'" and to provide the Union with pertinent information relating to the reorganization, as the Union requested, was a violation of the supplemental agreement between the parties. [n9]
With respect to the fourth issue, the Arbitrator did not agree with the Union's claim that the Agency's actions constituted a per se denial of the right of employees under section 7102 of the Statute to engage in protected activity. However, drawing upon NLRB v. Brown, 380 U.S. 278, 282 (1965), the Arbitrator agreed with the Union that the Agency's reorganization plan had a "demonstrably destructive" effect on employee rights, and did not serve "significant or important business ends" that would justify the Agency's reassignment of the employees in question. Award at 38.
In discrediting the Agency's proffered reason for the reorganization (to streamline and redistribute scarce resources), the Arbitrator found that the Agency's decision to delay those changes by eight months until the completion of bargaining over the relocation of the Oakland office weakened its rationale. The Arbitrator further noted the absence of evidence that the Agency considered alternatives, such as temporary reassignments, that would have had less of an impact on unit employees. Moreover, the Arbitrator found that the Agency's "movement back and forth" of the Union steward between the District and Regional Offices left him "unable to perform representational activities," and was "further evidence undercutting the importance of any need to locate programmatic-related positions in the District Offices." Id. at 39-41 (footnotes omitted).
While not suggesting that the Agency's reasons for the reorganization plan were "frivolous," the Arbitrator found them to be "extremely thin" when compared with the "'inherently destructive' impact" of the plan on the bargaining unit. Id. at 41-42. The Arbitrator concluded [ v55 p334 ] that the Agency "committed a separate violation" of section 7116(a)(1) "by interfering with Union activity through a restructuring which eliminated nearly half of the bargaining unit employees." Id. at 44.
As to remedies for the Agency's statutory violations, the Arbitrator noted that he had found that the Agency: (1) violated section 7116(a)(5) by failing to bargain over impact and implementation proposals; (2) violated section 7116(a)(5) by failing to bargain over the substance of the Union's section 7106(b)(1) proposals; and (3) committed a separate violation of section 7116(a)(1) by interfering with Union activity. [n10] He also noted that his findings were alternative holdings and that, if the Agency had a duty to bargain over the substance of the Union's section 7116(b)(1) proposals, the impact and implementation violation was "not germane." Award at 44.
The Arbitrator ordered the Agency to cease and desist from "interfering with, restraining or coercing its employees in the exercise of rights assured them by the Statute." [n11] The Arbitrator stated that if he had found only an impact and implementation violation he would not have ordered a status quo ante remedy, but a cease and desist order, a posting, and a "prospective bargaining order." Award at 44. The Arbitrator did order status quo ante relief for the Agency's failure to bargain over the substance of the proposals, but added that this relief was conditional upon the Agency's continued acknowledgment that it was obligated, pursuant to the Executive Order, to bargain over matters set forth in section 7106(b)(1) of the Statute. According to the Arbitrator, the Agency could retract its position and inform the Union that it viewed such bargaining as permissive and that "it chose to disregard the provisions of the Executive Order[.]" The Arbitrator stated that, because he is without authority to enforce the Executive Order, if the Agency were to retract its position, that would be "the end of the matter and there would be no obligation under [the Award] to bargain or continue bargaining." Award at 45. The Arbitrator did not separately discuss or distinguish the portions of his award that were intended to remedy the contractual violations that he found, particularly, the Agency's failure to give timely notice of the implementation of the reorganization.
Finally, the Arbitrator remedied the Agency's violation of section 7116(a)(1):
I am ordering a status quo ante remedy as well as a cease and desist order based on my finding that the Union has proven that the restructuring constituted inappropriate interference in violation of Section 7116(a)(1). Such relief is consistent with FLRA authority and is necessary to restore the parties to the conditions existing before the unlawful action. U.S. Customs Service, Region IV, Miami Florida and National Treasury Employees Union, 36 FLRA 489 (1990).
Award at 46 (footnotes omitted). [n12]
III. First Exception
A. Positions of the Parties
1. Agency's Exceptions
According to the Agency, the Arbitrator exceeded his authority by adding to the Agreement. The Agency cites Article 59, Section 2. H. of the Master Agreement, which provides that "[t]he Arbitrator has no power to add to, subtract from, disregard, alter or modify any terms of this Agreement or Employer policy and regulations." Exceptions at 6. The Agency also references the Regional Supplement to Article 4 of the Agreement, [ v55 p335 ] which provides, in relevant part, that the Union has 10 working days from the date it receives notice that the Agency "intends to change a personnel policy, practice or working condition" to request an opportunity to negotiate and to submit its proposals. Exceptions at 6-7.
The Agency contends that nothing in the contract permits the Arbitrator to interpret the Union's delay as excusable. According to the Agency, the Arbitrator effectively added to the time limits in the Agreement by waiving the Union's 10-day deadline in light of the Agency's failure to furnish the Union with certain information. The Agency claims that the award improperly conditions the 10-day deadline on management providing all of the information requested by the Union, without regard to the extent of the information requested or the relevance of the information to the Agency action at issue.
2. Union's Opposition
The Union denies that the Arbitrator added to the language of the Agreement. The Union counters that the Agency's exception overlooks language in the contract requiring the Agency to provide information relating to the proposals when the Union requests such information. Opposition at 17. The Union argues that, to the extent that the Arbitrator excused the Union's delay in submitting its proposals due to the Agency's failure to furnish requested information, "he did not disregard a specific limitation on his authority." Opposition at 28.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on his or her authority, or awarding relief to persons who were not encompassed within the grievance. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 51 FLRA 714, 718 (1995).
As relevant here, the Arbitrator resolved an issue that had been submitted for arbitration. Specifically, the Arbitrator resolved the issue of timeliness as he framed it, based upon his construction of the parties' Agreement. The question of interpretation and application of a collective bargaining agreement is a question solely for the arbitrator, as it is the arbitrator's construction of the agreement for which the parties have bargained. National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, Goldsboro, North Carolina, 54 FLRA 76, 82 (1998) (citing General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1044 (1992)). Consequently, in this regard, the Agency's exception does not provide a basis for finding the award deficient under section 7122(a)(2) of the Statute.
It is also possible to construe the Agency's assertion that the Arbitrator "add[ed] to, subtract[ed] from and disregard[ed] the Agreement" as an allegation that the Arbitrator's award fails to draw its essence from the parties' Agreement. In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Statute provides that the Authority will 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).
Here, the Arbitrator's determination that, in view of Article 4, Section 1-B of the Regional Supplement, the Union's 1-day delay in submitting its proposals was "excusable" is a plausible interpretation of the Agreement. Consequently, in this regard as well, the Agency's exception does not provide a basis for finding the award deficient under section 7122(a)(2) of the Statute. Accordingly, we deny this exception.
IV. Second Exception
A. Positions of the Parties
1. Agency's Exception
The Agency contends that the Arbitrator's award is deficient under section 7122(a)(1) because it is contrary to law. Specifically, the Agency claims that, despite his statement that he is without authority to enforce the Executive Order, the Arbitrator found that the Agency violated section 7116(a)(5) of the Statute by failing to bargain over the Union's section 7106(b)(1) proposals. The Agency argues that, by finding a violation, the Arbitrator enforced the mandate of the Executive Order that agencies bargain over section 7106(b)(1) matters contrary to the right of the Agency under the Statute to elect not to bargain about such matters. The Agency also argues that the Arbitrator erred by ordering it to bargain over section 7106(b)(1) matters regarding which it had a right to elect not to bargain.
The Agency also argues that the Arbitrator erred by premising his finding of a violation on the Agency's failure to bargain over section 7106(b)(1) matters. According to the Agency, the Union's proposals concerned the exercise of management's rights, under section 7106(a), to determine its organization, to assign employees, and to assign work. The Agency claims that [ v55 p336 ] because it had no duty to bargain over the exercise of those rights, there is no basis for a violation in the circumstances of this case. The Agency asserts that, at most, it had a duty to bargain over the impact and implementation of the exercise of those rights, but that the Union did not timely offer any impact and implementation proposals.
The Agency maintains that the Arbitrator's status quo ante remedy is contrary to law. According to the Agency, under section 7106(a), it had no duty to bargain over the substance of its decision to restructure its offices. Because it had no duty to bargain on the substance of the decision, the Agency claims that a status quo ante remedy is not appropriate. The Agency maintains that such a remedy is only appropriate where an agency has a duty to bargain over the substance of a decision.
2. Union's Opposition
According to the Union, the Agency did not except to that part of the award that found a violation of section 7116(a)(1) of the Statute for the Agency's interference with the exercise of employee rights and granted a status quo ante remedy. The Union claims that this finding, and the status quo ante relief granted to the Union as a result, must be left undisturbed.
The Union contends that the Agency acknowledged its obligation under the Executive Order to bargain on section 7106(b)(1) and, based on that acknowledgment, the Arbitrator found that the Agency had elected to bargain. The Union claims that the Arbitrator concluded he could find a violation of section 7116(a)(5) and order relief only because the Agency voluntarily acknowledged its obligation to bargain. The Union contends that the Arbitrator provided conditional bargaining relief, but did not order the Agency to bargain over section 7106(b)(1) matters. The Union also contends that the status quo ante remedy is appropriate because of the Agency's failure to bargain over the substance of those matters.
As to the Agency's claim that its decision to restructure the offices involved the exercise of section 7106(a) rights rather than section 7106(b)(1), the Union argues that the Agency's claim ignores the Authority's holding in VAMC, Lexington that section 7106(b)(1) is an exception to section 7106(a).
Finally, with respect to the Agency's claim that the Arbitrator improperly required it to bargain over permissive section 7106(b)(1) matters, the Union contends that, under the award, the order to bargain is conditional and is effective only as long as the Agency continues to acknowledge its obligation to bargain over those matters.
B. Analysis and Conclusions
The Agency's exception claims that the award is deficient under section 7122(a)(1) of the Statute because it is contrary to law. The Authority reviews questions of law raised in a party'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). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Even assuming that the Agency correctly claims that the Arbitrator erred in finding a violation of section 7116(a)(1) and (5) of the Statute, see U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998) (Department of Commerce) (Member Wasserman, dissenting in part) ("The fact that the nature of the Executive Order's direction is indeed mandatory does not, however, render it a statutory election enforceable in an unfair labor practice proceeding."), that fact does not render the Arbitrator's remedial order in this case deficient. The Authority has consistently recognized that when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient in order to have the award found deficient. See, e.g., Office and Professional Employees International Union, Local 268 and U.S. Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 54 FLRA 1154, 1158-59 (1998); American Federation of Government Employees Local 1857, and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 53 FLRA 1353, 1357 (1998).
The Agency does not except to the Arbitrator's finding of an independent section 7116(a)(1) violation. Because the Arbitrator ordered a status quo ante remedy for the unexcepted to independent section 7116(a)(1) violation, the Agency's exceptions challenging that remedy based on the Arbitrator's finding of a section 7116(a)(1) and (5) violation, are unavailing. Id. Consequently, because the Agency's contrary to law excep- [ v55 p337 ] tions provide no basis for finding the status quo ante remedy deficient, we find it unnecessary to address the exceptions to the extent that they pertain to that remedy. [n13]
Further, in issuing a cease and desist remedy for both the violations of section 7116(a)(1) and (5) and, independently, of section 7116(a)(1), the Arbitrator ordered only that the Agency "[c]ease and desist from interfering with, restraining or coercing its employees in the exercise of rights assured them by the Statute." See, supra, n.12. As stated, the order is phrased in terms of a remedy for a violation of section 7116(a)(1) of the Statute. See, e.g., Bureau of Engraving and Printing, Western Currency Facility, Fort Worth, Texas, 51 FLRA 1014, 1015-16 (1996); Equal Employment Opportunity Commission, San Diego Area, San Diego, California, 48 FLRA 1098, 1099-1100 (1993). It is not phrased as a cease and desist order for a violation of section 7116(a)(5). Such orders usually require an agency to cease undertaking some action without providing the union notice and an opportunity to bargain. See, e.g., 92 Bomb Wing, Fairchild Air Force Base, Spokane, Washington, 50 FLRA 701, 706 (1995); Defense Distribution Region Central, F/K/A Defense Depot Memphis, Memphis, Tennessee, 49 FLRA 711, 712 (1994). In the absence of any wording in the Arbitrator's order indicative of an intent to require the Agency to cease and desist from failing to bargain over section 7106(b)(1) matters, therefore, even assuming the Arbitrator erred in finding a violation for such a failure to bargain, there is no need to modify the order to eliminate such a requirement. In this respect, the order is duplicative of the order for the independent violation of section 7116(a)(1) and, as noted above, no exceptions were raised as to the Arbitrator's finding of that violation. For this reason, insofar as the Agency's exceptions challenge the Arbitrator's cease and desist order, we find it unnecessary to address those exceptions.
Finally, even assuming that the Arbitrator erred in finding that the Agency violated section 7116(a)(1) and (5) by failing to bargain over the Union's section 7106(b)(1) proposals, his remedial order did not direct the Agency to bargain. In particular, the order did not contain any reference to the Agency's bargaining obligation. See, supra, n.12. Rather, recognizing that he was not empowered to enforce the Executive Order's mandate that agencies bargain over section 7106(b)(1) matters, in his reasoning underlying the award, the Arbitrator simply noted the Agency's options. In particular, the Arbitrator noted that the Agency, as it had previously acknowledged, could comply with the Executive Order. However, as the Arbitrator also noted, if the Agency chose not to comply, he could not enforce compliance or require bargaining over the section 7106(b)(1) matters about which the Agency elected not to bargain. In short, the Arbitrator's discussion relative to the Agency's bargaining obligation does not direct bargaining. Thus, the Agency's exception, that the award requires it to bargain over permissively negotiable section 7106(b)(1) matters, misconstrues the award. [n14] Accordingly, insofar as the Agency's exceptions challenge the Arbitrator's discussion of its bargaining obligation, we find it unnecessary to address those exceptions.
Consequently, we deny the Agency's exceptions. [n15]
The Agency's exceptions are denied. [ v55 p338 ]
Section 1 of the Regional Supplement provides as follows:
Section 1 - Notice Procedure
Where the Employer intends to change a personnel policy, practice, or working condition, the following procedures will apply:
A. Notice will be provided to the Chapter President as early as practicable, but normally not less than fourteen (14) calendar days before the Employer plans to implement the proposed change. The Union will have ten (10) workdays in which to request an opportunity to negotiate and to submit its proposals.
B. The notice will include a description of the proposed change, an explanation of how the change will be implemented, the reason for the change, and the proposed implementation date. Copies of all available pertinent information upon which the proposal is based will be attached to the notice, or, if such information is too voluminous, the Union will be advise[d] as to where the information may be reviewed.
C. Upon request, the Union will be provide[d] with a briefing regarding the proposed change. Such briefings will not alter the timeframe in Section 2(A) above [sic]. However, the parties may mutually agree to waive the above time constraints.
Footnote # 1 for 55 FLRA No. 53
1/ The bargaining unit status of one of those employees was contested by the Agency. However, as the Agency has not raised that issue in its exceptions, there is no dispute before the Authority regarding that employee's unit status.
Footnote # 2 for 55 FLRA No. 53
Footnote # 3 for 55 FLRA No. 53
Footnote # 4 for 55 FLRA No. 53
These impact and implementation proposals included the reassignment of one employee with no change in career ladder or job description, the creation of self-directed work teams, the establishment of a joint team at the Oakland office to assess the workloads of remaining employees, and certain changes to the amenities for employees remaining in the Regional Office (e.g., reconfigured space and seating, private telephone lines, and voice mail).
Footnote # 5 for 55 FLRA No. 53
The grievance alleged violations of section 7116(a)(1), (2), (4), and (8) of the Statute, and 5 U.S.C. §§ 2301 and 2302, 29 U.S.C. § 791, 42 U.S.C. § 2000e-16, 5 C.F.R. § 2635.101(b)(13), and 45 C.F.R. Part 73. Attachment 2 to the Union's Opposition.
Footnote # 6 for 55 FLRA No. 53
Footnote # 7 for 55 FLRA No. 53
Footnote # 8 for 55 FLRA No. 53
Executive Order 12,871, Fed. Reg. 52,201 (October 6, 1993), entitled "Labor-Management Partnerships," instructs agency heads and subordinate officials to bargain with their respective unions in good faith over subjects set forth in section 7106(b)(1) of the Statute, but creates no right of judicial or administrative review for an agency's alleged failure to carry out this Presidential directive.
Footnote # 9 for 55 FLRA No. 53