Federal Aviation Administration, Washington, D.C. and Professional Airways Systems Specialists

[ v55 p1233 ]

55 FLRA No. 198

FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

and

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
(Union)

0-AR-3142

_____

DECISION

January 14, 2000

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

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Roger P. Kaplan 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 found that the Agency violated the parties' collective bargaining agreement by unilaterally implementing a change in an established past practice without providing the Union with notice and an opportunity to negotiate over the change. The Arbitrator ordered the parties to return to the status quo ante and conduct any future change in the past practice in accordance with the parties' agreement.

      For the reasons that follow, we find that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Facts Giving Rise to this Grievance

      This case concerns a dispute between the Federal Aviation Administration ("Agency") and the Professional Airways Systems Specialists ("Union") over the Agency's decision to exclude Union representatives from participating on panels involved in rating, ranking and interviewing employees for positions with the Agency ("selection panels").

      From 1995 through 1997, the parties entered into a number of local and regional Memorandum of Understanding (MOUs) that, among other things, provided for Union participation on selection panels for bargaining unit positions. On the national level, the Agency issued a policy which provided for Union participation on panels involved in the selection of employees for managerial positions.

      Subsequently, the Agency's Director for Human Resource Management issued an August 26, 1997 note to Agency officials that stated in part that "union representatives are not to participate in the selection process by serving as members of either rating and ranking panels or interview panels for any Agency positions." Id. at 7. By letter dated October 1, 1997, the Agency forwarded to the Union a copy of the August 26, 1997 note. In pertinent part, this letter stated: "[e]nclosed is the notification to [the Union] referenc[ing] the change in policy regarding union participation in the selection of personnel for Agency positions." Id. at 8.

      By letter dated October 22, 1997, the Union filed a national grievance protesting the Agency's decision to exclude the Union from participating on selection panels. [n1]  See Union's Grievance, attached to Agency's Exceptions at Appendix F. In terms of a remedy, the Union requested a return to the status quo ante. Id.

B.     Arbitrator's Award

      The Arbitrator noted that the parties did not stipulate the issues. Therefore, the Arbitrator formulated the issues as follows:

1.     Is the instant matter grievable?
2.     Did the Agency violate Article 70 of the collective bargaining agreement and past practice when it unilaterally terminated the policy of permitting Union representatives to participate on panels involved in the selection of employees and managers?
3.     If so, what shall be the remedy? [ v55 p1234 ]

Award at 2. As relevant to the dispute currently before the Authority, the Arbitrator then set forth the pertinent portions of Articles 4, 69, and 70, respectively, of the parties' Agreement. [n2] 

      Next, the Arbitrator responded to several of the Agency's arguments that the Union violated procedural requirements in bringing the grievance. In this regard, the Arbitrator rejected each of the Agency's claims that the grievance was non-arbitrable. Among other things, the Arbitrator held that the Union was not time-barred from claiming that the Agency's actions violated Article 70 of the Agreement, and stated that the Union "is not barred" from "amending its grievance to state a claim under a specific article of the Agreement[.]" Id. at 15-16.

      With regard to the merits of the case, the Arbitrator ruled that the Agency's decision to change its past practice of permitting union participation on selection panels was a proper subject of the grievance procedure. In this connection, the Arbitrator found that the local and regional MOUs submitted by the Union were evidence that Union representatives "regularly served on selection panels[,]" and that the Agency's October 1, 1997 letter, referencing a "change in policy," was evidence that the selection panels were "a fixed, established practice accepted by the parties." Id. at 18. The Arbitrator concluded that "the practice of [Union] members serving on selection panels was a past practice binding between the parties. As such, the practice could not be changed unless the parties mutually agreed upon a change." Id. at 19. Accordingly, the Arbitrator held that "the [Agency's] unilateral action violated the past practice." Id. at 20.

      The Arbitrator also found that Article 70 required the Agency to provide the Union with written notice and an opportunity to bargain over changes in a national personnel policy, practice, or other matter affecting working conditions, and that the Agency's practice of permitting union participation on selection panels "was an Agency `policy' or `practice'" as defined by that Article. Id. at 22. Therefore, the Arbitrator held that "the Agency violated the provisions of [Article 70] by its unilateral change to the practice of having [Union] representation on selection panels for bargaining unit employees." Id.

      The Arbitrator emphasized that "[n]othing in this Opinion and Award should be construed as providing the Union the right to make selection decisions." Id. at 16. In this regard, the Arbitrator found that Union participation on selection panels did not interfere with management's right to assign work and make selections. Rather, the Arbitrator found that the Union's presence on selection panels only gives the Union the right "not to be excluded from the selection process . . . . " Id. The Arbitrator also noted the Union's stipulation that all of the authority to make selection decisions lies with the Agency.

      As a remedy, the Arbitrator ordered the parties to return to the status quo ante with regard to Union participation on selection panels for bargaining unit positions. [n3]  The Arbitrator further ordered that "[a]ny change in the policy or practice of [Union] participation on selection panels for bargaining unit employees shall be made in accordance with Article 70 of the Agreement." Id. at 23.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency argues that the Award is contrary to law because "[a] union presence at any stage of the selection process, and particularly seated on panels, interferes with management's right to assign work and make selections." Exceptions at 5. In support, the Agency cites American Federation of Government Employees, AFL-CIO, Local 2298 and Department of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA 385 (1986) (Department of the Navy). In this connection, the Agency contends that arbitration awards that "infringe on" its statutory rights should be set aside. Exceptions at 4, citing as authority Professional Air [ v55 p1235 ] Traffic Controllers Organization and Federal Aviation Administration, 5 FLRA 763 (1981) (FAA). The Agency also contends that it did not violate the Union's rights by making the change because agencies may terminate a past practice when it is inconsistent with law. As authority, the Agency cites Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984). Finally, the Agency states that "the award should be reviewed under traditional tests to determine whether it interferes with management's rights" because the Arbitrator made no finding that Union representatives on selection panels constituted "an arrangement for employees adversely affected by the exercise of management's rights . . . . " Exceptions at 5. In support, the Agency cites U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen and Schedulers Union, Local 2, 49 FLRA 1363 (1994).

      Second, the Agency argues that the Arbitrator exceeded his authority by disregarding the specific limitations imposed by the parties' Agreement. As authority, the Agency cites U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217 (1995). Specifically, the Agency claims that because Sections 9 and 11 of Article 5 of the Agreement require the Arbitrator to confine himself to the precise issue submitted by the grievance, and the specific language of the grievance did not allege a violation of Article 70, the award is deficient because "the arbitrator awarded relief on an issue not encompassed within the grievance and not submitted to arbitration." [n4]  Exceptions at 7.

B.     Union's Opposition

      First, the Union argues that the award is not contrary to law because no evidence shows that the Union's participation on selection panels conflicts with management's reserved rights under the Statute. In this regard, the Union contends that its involvement on selection panels is limited to "making recommendations to management[,]" and that the parties' past practice of having Union representatives on selection panels "constitutes a negotiated procedure" which management officials agreed with the Union to observe in exercising its hiring authority under the Statute." Opposition at 2-3.

      Second, the Union contends that the Agency's argument that the Arbitrator exceeded his authority is "nothing more than a disagreement with a procedural ruling" by the Arbitrator. Id. at 4. In this regard, the Union points out that this issue was argued at the hearing and addressed by the Arbitrator in his Decision, and that the Agency's exceptions "fail[] to articulate any specific facts" that would merit disturbing the Arbitrator's ruling. Id. at 5.

IV.     Analysis and Conclusions

A.     Whether the Award is contrary to law

      As the exceptions involve the award's consistency with law, the Authority must review questions of law raised by the Agency's exceptions and the Arbitrator's award de novo. See 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, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See 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, we defer to the arbitrator's underlying factual findings. See id.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that an award affects a management right under section 7106(a), the Authority applies a two-prong test. Under Prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies Prong I of the framework and will then address Prong II. Under Prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual pro- [ v55 p1236 ] vision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies Prong II.

1.     The award affects management rights

      The Arbitrator ordered the Agency to reinstate its policy of allowing Union participation on selection panels. Under prior Authority decisions, union participation on a selection panel affects management's rights when the union is involved in the deliberative process of selection. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1442 (1992) (Proposal 10) (where union participation on selection panels and other joint labor-management committees allows the union to participate in the discussions and deliberations leading to decisions involving the exercise of management's rights, the union's participation interferes with those rights); National Federation of Federal Employees, Local 1437 and United States Army Armament, Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1067 (1990) (Proposal 3) ("[u]nion participation on a committee interferes with management's rights if the committee is involved in the deliberative process by which management exercises its rights"). The selection panels at issue in this case involve the Union in the selection process through rating or interviewing applicants. Accordingly, even though the final decision regarding selection is reserved for the selecting official, existing precedent establishes that the award affects management's rights under section 7106(a) of the Statute.

2.     The past practice was enforceable under 7106(b)(3) of the Statute

      When an arbitrator enforces a past practice as part of the collective bargaining agreement, we will apply the BEP framework in resolving exceptions alleging that the award violates management's rights under section 7106 of the Statute. Here, Article 70 of the parties' agreement provides that "[i]n the event [the Agency] proposes to change a . . . practice . . . [the Agency] shall provide the Union written notice of the proposed change"; and "[i]n the event the Union submits timely written proposals[,]" the Agency shall "discuss any proposal the Union may have to amend or change the [A]gency proposal" prior to implementing the proposed change. See full text of Article 70, attached to the Appendix of this Decision. The Arbitrator held that the Agency violated the parties' agreement by making a unilateral change in its past practice of permitting Union participation on selection panels, without providing the Union notice of the change, and accordingly enforced the past practice by ordering the parties to return to the status quo ante and make any future change in accordance with Article 70. In its exceptions, the Agency does not contend that Article 70 is not an enforceable provision under section 7106(b) of the Statute. Neither does the Agency contend that Article 70 is unenforceable as to practices. Rather, the Agency bases its exception upon the claim that its past practice of allowing Union representation on selection panels is not "an arrangement for employees adversely affected by the exercise of management rights . . . ." Exceptions at 5. Accordingly, under Prong I of BEP, we address only that issue.

      The Authority has held that, under certain circumstances, selection panels permitting union participation may be negotiable under section 7106(b)(3) of the Statute. See, e.g., American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 615 (1997) (Provision 6); cf. National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Hyattsville, Maryland, 48 FLRA 599, 606 (1993) (Proposal 2) (Authority stated that it would not address whether labor-management committee that directly interfered with management's rights was nevertheless an appropriate arrangement under section 7106(b)(3), when there was no contention to that effect).

      The Authority applies the analysis set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), to determine whether an arbitrator enforced an arrangement within the meaning of section 7106(b)(3) of the Statute. Under that framework, the Authority determines whether an award violates management's rights under section 7106 by examining whether the provision of the collective bargaining agreement enforced by the arbitrator: (1) constitutes an arrangement under section 7106(b)(3) of the Statute, and (2) does not abrogate the exercise of a management right. See U.S. Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, 53 FLRA 1344, 1348 n.4 (1998) (Warner Robins).

      A collective bargaining provision constitutes an arrangement under section 7106(b)(3) of the Statute if it is intended to provide relief to ameliorate the adverse effects flowing from the exercise of a management [ v55 p1237 ] right. See BEP, 53 FLRA at 155. The Authority has held that union proposals for selection panels are designed to ameliorate the adverse effects on employees that can result from unfair or inaccurate ratings in the selection process. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 569-73 (1997) (PTO) (Article 12, Section 4(G)) (provision specifying the qualifications of selection panel members was intended to protect employees by ensuring that they were rated fairly and objectively on their qualifications for performing the work of vacant positions and constituted an arrangement under section 7106(b)(3) of the Statute). Similarly, the Arbitrator in this case enforced a prophylactic measure designed to prevent employees from being harmed by unfair or inaccurate ratings. Such measures come within the purview of section 7106(b)(3). See PTO, 53 FLRA at 570. Accordingly, we find that the Arbitrator enforced an arrangement designed to ameliorate the adverse effects flowing from management's right to select and assign work. See id. at 569-73.

      With respect to the second part of the Customs Service test, an award "abrogates" a management right when the award "precludes an agency from exercising" that right. Warner Robins, 53 FLRA at 1349 (citation omitted). In this case, the Agency argues that the past practice enforced by the Arbitrator is contrary to law because "[a] union presence at any stage of the selection process, and particularly seated on panels, interferes with management's right to assign work and make selections." Exceptions at 5. The Arbitrator found, however, that "[t]he Agency's argument that [the Union's] participation on selection panels interferes with the Agency's reserved rights to assign work and make selections is unpersuasive[,]" and emphasized that "[n]othing in this [o]pinion and [a]ward should be construed as providing the Union the right to make selection decisions." Award at 16. Under the Arbitrator's interpretation, the Agency's past practice does not preclude the Agency from exercising its right, or from choosing not to exercise its right, to assign work and select employees. Rather, the Union's presence on selection panels only gives the Union the right "not to be excluded from the selection process . . . . " Id. Based on these factual findings as to the nature of the past practice, the award does not abrogate management's right to assign work and select employees under sections 7106(a)(2)(B) and (C) of the Statute. As such, we find that this portion of the award satisfies Prong I.

      We reject the Agency's reliance on Department of the Navy, 22 FLRA 385. In Department of the Navy, the Authority found that a proposal requiring participation of a union representative on a selection panel was nonnegotiable because it would "interfere" with the agency's right to freely engage in discussion and deliberations prior to making decisions involving management rights. Id. at 386. The Authority has held, however, that negotiability cases employing an "interference" analysis do not control the abrogation analysis required under Customs Service. See BEP, 53 FLRA at 155 n.9. Similarly, we find that the Agency's cite to FAA, 5 FLRA 763, is inapplicable to the circumstances presented here. In FAA, the Authority found that the arbitrator enforced a provision of the parties' collective bargaining agreement that constituted an "absolute prohibition" on management's right to take disciplinary action. Id. at 768. Consequently, the Authority held that the award violated section 7106 of the Statue. Id. at 769. In contrast, the past practice in this case does not preclude the Agency from exercising its rights, and is therefore an enforceable arrangement. [n5] 

3.     The Award satisfies Prong II of the BEP test

      Next, we turn to Prong II of the BEP analysis. Under Prong II, the remedy awarded must reflect a reconstruction of what management would have done if management had not violated the agreement. See BEP, 53 FLRA at 154. In this case, the Arbitrator ordered the Agency to return to its past practice of permitting Union participation on selection panels, and required that any future decision to change that practice be made in accordance with Article 70 of the agreement. The Arbitrator based his remedy on a finding that Article 70 required the Agency to notify the Union of its intention to change the past practice, and give the Union an opportunity to bargain over the change. We find that, had the Agency acted consistent with its obligations under Article 70, it would have notified the Union of its intention to change the past practice, and bargained with the Union prior to implementing the proposed change. The award reflects a reconstruction of the situation that would have existed had the Agency not acted contrary to its contractual obligations. Thus, we find that the award satisfies Prong II of BEP.

B.     Whether the Arbitrator exceeded his authority

      The Agency argues that the Arbitrator exceeded his authority by awarding relief on an issue that was not encompassed by the grievance. [ v55 p1238 ]

      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. American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996). In this case, the Arbitrator stated that the parties did not stipulate the issues to be resolved. Accordingly, the Arbitrator formulated the issues. In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command, Robins Air Force Base, Warner Robins, Georgia, 50 FLRA 160, 162 (1995) (Warner Robins).

      Here, the Arbitrator formulated one of the issues as whether the Agency violated "Article 70 of the collective bargaining agreement and past practice when it unilaterally terminated the policy of permitting Union representatives to participate" on selection panels. In finding that the Agency violated Article 70 of the Agreement, the award is directly responsive to the issue as formulated by the Arbitrator. Accordingly, we find that the Agency has failed to demonstrate that the Arbitrator exceeded his authority. See, e.g., Warner Robins, 50 FLRA at 162.

      Moreover, to the extent that the Agency's exceptions may be interpreted as a contention that the award failed to draw its essence from the Agreement, we find that the Agency has not demonstrated that the award is deficient under any of the tests set forth in United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990) (OSHA). Here, the Agency argues that the language of Article 5, Sections 9 and 11, precludes the Arbitrator from formulating the issues to include an alleged violation of Article 70 of the Agreement. On this issue, the Arbitrator stated that the Union "is not barred" from "amending its grievance to state a claim under a specific article of the Agreement[,]" and interpreted the issues before him to include an alleged violation of Article 70. Award at 16, 15-16. Upon review, we find that the Agency has not demonstrated that the Agreement language precluded the Arbitrator from formulating the issues as he did. Therefore, we find that the award does not reflect an irrational, implausible, or unfounded interpretation of the agreement. See OSHA, 34 FLRA at 575-77. Accordingly, we deny the Agency's exception.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

ARTICLE 70
National Relationship

Section 1. In the event the Employer proposes to change a national personnel policy, practice, or other matter affecting working conditions, the Employer shall provide the Union written notice of the proposed change. The Union shall, within thirty (30) calendar days of receipt of the notice, submit written proposals to the Employer. However, if the Union desires a meeting to discuss the Employer's proposal prior to submission of its proposals, it may request such a meeting. The Union's proposals will then be submitted within fifteen (15) calendar days of the date of that meeting. If the Union does not file a timely request for a meeting or submit timely written proposals, the Employer may implement the change as proposed.
Section 2. In the event the Union submits timely written proposals as provided in Section 1 of this Article, the Parties shall arrange to meet within fifteen (15) calendar days of the date of the Union's request to discuss any proposal the Union may have to amend or change the agency proposal. If after a good faith effort agreement cannot be reached, the Parties are free to pursue whatever course of action is available to them under the Federal Service Labor-Management Relations Statute.

See Article 70 of parties' collective bargaining agreement, attached as Appendix E to Agency's Exceptions.



Footnote # 1 for 55 FLRA No. 198

   The Union also filed an unfair labor practice against the Agency. In Department of Transportation, Federal Aviation Administration, Fort Worth, Texas and Professional Airways System Specialists, 55 FLRA 951 (1999), the Authority adopted the Administrative Law Judge's finding that the respondent violated section 7116(a)(1) and (5) of the Statute by repudiating a local MOU that required the respondent to permit union participation on selection panels. In contrast, we address in this case whether the Agency violated the parties' agreement when it unilaterally terminated its national policy of permitting Union participation on selection panels.


Footnote # 2 for 55 FLRA No. 198

   The Arbitrator cited these provisions, in pertinent part, as follows:

Article 4
The Employer retains all mandatory and discretionary rights reserved to the Employer as set forth in 5 USC 7106.
Article 69
The Parties have negotiated a comprehensive national agreement that constitutes the entire agreement between them. No separate local or regional supplemental agreements are authorized.
Article 70
In the event the Employer proposes to change a national personnel policy, practice or other matter affecting working conditions, the Employer shall provide the Union written notice of the proposed change.

Award at 2.


Footnote # 3 for 55 FLRA No. 198

   The Arbitrator did not require reinstatement of the practice with respect to management positions and the Union does not except to that decision.


Footnote # 4 for 55 FLRA No. 198

   In pertinent part, Article 5, Section 9 states that the grievance "shall provide" (a) "[t]he facts upon which the grievance is based"; (b) "[t]he Article and Section, if any, of the agreement alleged to have been violated"; (c) "[t]he corrective action sought." Also in pertinent part, Article 5, S