Association of Civilian Technicians and U.S. Department of Defense, Missouri National Guard, St. Louis, Missouri

[ v55 p474 ]

55 FLRA No. 78

ASSOCIATION OF CIVILIAN TECHNICIANS
(Union)

and

U.S. DEPARTMENT OF DEFENSE
MISSOURI NATIONAL GUARD
ST. LOUIS, MISSOURI
(Agency)

0-AR-3077

_____

DECISION

May 27, 1999

_____

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

Decision by Chair Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to a portion of an award of Arbitrator Mark W. Suardi 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 did not file an opposition to the Union's exceptions.

      As relevant here, the Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by assigning duties to civilian technicians that were not within their position descriptions. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Agency decided to assign civilian technicians certain additional duties. Pursuant to the parties' collective bargaining agreement, the Union requested bargaining over the impact and implementation of the change. The parties corresponded for several months about the Agency's decision, but were unable to reach an agreement. The Agency implemented the disputed change.

      The Union filed an unfair labor practice charge, claiming the Agency failed to bargain over the change. [n1]  Subsequently, the Union filed a grievance, asserting, in relevant part, that the Agency violated the parties' agreement by assigning civilian technicians duties not included in their position descriptions. When the grievance was not resolved, the issue was submitted to arbitration, where the Arbitrator framed the issue as follows:

Did the Agency violate the Labor Management Relations Agreement in its assignment of certain . . . duties to [civilian technicians], or in its training of said individuals? If so, what is the appropriate remedy?

Award at 4.

      The Arbitrator found that the civilian technicians' position descriptions expressly included the possibility of performing the disputed duties, and he concluded that such duties were part of their position descriptions. Thus, the Arbitrator concluded that the Agency did not violate the parties' agreement, and he denied the grievance. In doing so, the Arbitrator noted that "the fact that the [union] ultimately grieved the Agency's implementation decision simply does not equate with a failure to bargain." Id. at 9 (emphasis omitted).

III.     Union's Exceptions  [n2] 

      The Union claims that under section 7116(d) of the Statute, the Arbitrator lacked jurisdiction to determine whether the Agency satisfied its statutory duty to bargain over the alleged change in conditions of employment. The Union argues that because it filed the unfair labor practice charge before filing the grievance, the Arbitrator was precluded from deciding whether the Agency refused to bargain over the change. In this regard, the Union requests that the portion of the award finding that there was no statutory failure to bargain be vacated.

IV.     Analysis and Conclusions

      The Union's assertions set forth above can be read as raising one or both of two different exceptions: that the Arbitrator exceeded his authority [n3]  and that the [ v55 p475 ] award is contrary to section 7116(d) of the Statute. [n4]  For the reasons that follow, we find that, under both constructions, the exceptions are without merit.

      The premise of the Union's assertions is that the Arbitrator resolved the issue of "whether the [A]gency had met its [statutory] obligations to bargain over [the alleged] change" in employees' conditions of employment. Exceptions at 2. However, a reading of the award as a whole demonstrates that the Arbitrator did not resolve a statutory bargaining issue.

      First, the Arbitrator's formulation of the issue identified only the Agency's alleged violation of the parties' collective bargaining agreement by its assignment of the disputed duties to affected employees. See Award at 4. The Arbitrator's discussion of the issues likewise expressly focused -- with the exception of the sentence objected to by the Union -- only on the alleged contract violation. See, e.g., id. at 7 (Arbitrator stated that the union "bears the burden of proving a contract violation"); id. (recognizing that the Union's case "must stand or fall" on the claim set forth in the grievance without regard to any collateral arguments or unspecified claims for relief); id. (stating that the only issue in the grievance is whether employees were assigned duties outside of their position description). The Arbitrator's conclusion that he could "find no contract violation" was directly responsive to the issue as he framed it and contains no indication that a resolution of a statutory duty to bargain issue was intended as well. Id. at 9.

      Second, the sentence in the award to which the Union objects does not expressly resolve a statutory duty to bargain issue. To begin with, the Arbitrator's statement -- "the fact [that] the Association ultimately grieved the Agency's implementation decision simply does not equate with a failure to bargain" -- is not expressly a finding about anything. Id. (emphasis omitted). Moreover, insofar as it is a finding, read in the context of the award as a whole, the finding appears to relate to the Agency's contractual obligation to bargain -- not its statutory obligation.

      In this regard, the Arbitrator noted that the Union had requested impact and implementation bargaining pursuant to section 1.13 of the parties' agreement. See id. at 3. The Arbitrator stated that "the course of negotiations was in keeping with the goal of a cooperative relationship, this as cited in Section 1.1 of the Bargaining Agreement." Id. at 9. In addition, although the Union asserted before the Arbitrator that the Agency "failed to engage in meaningful [impact and implementation] bargaining[,]" and "breached its duties to meet and confer with the [Union] over changes in working conditions[,]" there is no indication in the award or the parties' arguments that the statutory duty to bargain was ever raised. Id. at 5. Accordingly, we find that the Arbitrator's statement with respect to bargaining was merely in response to the Union's argument that the Agency violated the parties' agreement by failing to bargain over the impact and implementation of the change.

      Based on the foregoing, we conclude that the Arbitrator did not resolve a statutory duty to bargain issue and, as a result, the award is not deficient either on the ground that the Arbitrator exceeded his authority or on the ground that the award is contrary to section 7116(d) of the Statute.

V.     Decision

      The Union's exceptions are denied.






Footnote # 1 for 55 FLRA No. 78

   The Regional Director issued a complaint and Notice of Hearing in response to that charge. On July 14, 1998, the parties settled the unfair labor practice case resulting from that complaint.


Footnote # 2 for 55 FLRA No. 78

   As noted above, the Agency did not file an opposition to the Union's exceptions.


Footnote # 3 for 55 FLRA No. 78

   Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See, e.g., American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996).


Footnote # 4 for 55 FLRA N