U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004

[ v55 p1303 ]

55 FLRA No. 210

U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION CENTER
NEW CUMBERLAND, PENNSYLVANIA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2004
(Union)

0-AR-3212

_____

DECISION

January 31, 2000

_____

Before the Authority: Phyllis N. Segal, Chair, Donald S. Wasserman and Dale Cabaniss, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator William E. Caldwell filed by the Agency under section 7122(a) of the Statute and part 2425 of the Authority's Regulations. The Union filed an opposition to the exceptions.

      The Arbitrator sustained a grievance alleging that the Agency violated Article 31, Section 13 of the parties' collective bargaining agreement by refusing to negotiate on proposed competitive areas and ordered the Agency to implement those competitive areas. [n2] 

      For the reasons that follow, we conclude that the Agency has failed to establish that the award is deficient on any of the grounds asserted. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

A.     Background  [n3] 

      In 1997, the Defense Distribution Region East and the Defense Distribution Region West, field activities of the Defense Logistics Agency, were consolidated to form the Defense Distribution Center (DDC). DDC is the headquarters for supply depots located in the United States, Europe, and the Pacific, and is "co-located" with the Defense Depot Susquehanna Pennsylvania (DDSP). Exceptions at 2. As a result of the consolidation, DDC planned to conduct a reduction-in-force (RIF) and, pursuant to Article 31, Section 13 of the MLA, undertook negotiations on competitive areas with the Union (AFGE, Local 2004), which represents employees at DDC and DDSP.

      The Union proposed separate competitive areas for DDC and DDSP. The Agency rejected the proposed areas as inconsistent with law, citing court and Authority precedent. The Union filed a grievance alleging that the Agency's action violated Article 31, Section 13 of the MLA. The grievance was unresolved and was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator stated the issues as follows:

Did the employer violate the agreement when it determined that the union proposal to create two competitive areas (DDC and DDSP) was non-negotiable? And if so, what is the proper remedy?

Award at 2. He noted that Article 31, Section 13 "clearly states that 'competitive areas will be negotiated . . . .'" Award at 4. He also noted that the Agency agreed that, under that contractual provision, it "has an obligation to bargain" the matter with the Union. Id.

      According to the Arbitrator, despite its acknowledgment that it had agreed to bargain, the Agency claimed that the proposed competitive areas were inconsistent with law because they would include supervisors and management officials. Citing American Federation of Government Employees, Local 32 v. FLRA, 110 F.3d 810 (D.C. Cir. 1997) (Local 32), the Agency argued that it could not be required to negotiate concerning the inclusion of supervisors and management officials in the proposed competitive areas. [ v55 p1304 ]

      The Arbitrator indicated that the Union relied on Authority decisions "supporting the negotiability of competitive areas when they are linked to language of the Agreement[.]" Award at 6, citing, for example, 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, 622-23 (1997) (Fort Rucker). The Arbitrator also referred to a Memorandum of the FLRA's General Counsel, dated September 30, 1998, which he summarized as follows:

[I]f [a provision requiring bargaining over competitive areas is] agreed to in a Master Agreement, the provision is not subject to disapproval by management and is enforceable in arbitration. Thus[,] an agency can bargain over and agree to proposals that directly implicate[] supervisors because such are permissive subjects of bargaining.

Award at 6.

      The Arbitrator found that Article 31, Section 13 of the MLA "requires the parties to negotiate" the proposed competitive areas. Id. at 7. The Arbitrator also found that the Authority's "most recent case decisions and guidelines from the General [Counsel] are in support of the [U]nion's position." Id. Consequently, the Arbitrator found that the Agency "has violated the Agreement." Id. The Arbitrator stated his award as follows:

The grievance is sustained. The Agency will implement the competitive areas proposed.

Id.

III.     The Award Is Not Based on a Nonfact.

A.     Positions of the Parties

1.     Agency

      According to the Agency, the Arbitrator found that its allegation that the proposed competitive areas are nonnegotiable "was a failure to negotiate." Exceptions at 4. The Agency claims that, "[a]s a factual matter, the Agency did not fail to negotiate the competitive area." Id. The Agency maintains that, even though it declared the Union's proposed competitive areas nonnegotiable, it continued to negotiate with the Union on the matter, including submitting the matter to mediation. The Agency states that it informed the Union that if the Authority determined that the proposal was negotiable in a negotiability appeal, it would proceed to the Federal Service Impasses Panel (Panel) for resolution. The Agency asserts that the Union "prematurely aborted negotiations by filing a grievance instead of a negotiability appeal[.]" Id. The Agency contends that, in the light of these facts, the Arbitrator's "finding that [it] failed to negotiate is based on a nonfact." Id. In this regard, the Agency notes that the General Counsel dismissed an unfair labor practice charge filed by the Union "alleging a refusal to bargain over this very same competitive area." Id.

2.     Union

      According to the Union, the Agency's nonfact exception is based on the testimony of one of the Agency's own witnesses, which, "in [and] of itself, does not constitute a 'fact' underlying the Arbitrator's Award." Opposition at 3. The Union argues that it is the role of the Arbitrator to weigh all the testimony and evidence. The Union asserts that the Agency provides no legal support for its nonfact exception, but only expresses its disagreement with the Arbitrator's award. The Union also requests that the Authority not consider the General Counsel's letter dismissing the Union's unfair labor practice charge.

B.     Analysis and Conclusions

      To establish that an award is based on a nonfact, the appealing 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). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. [ v55 p1305 ] at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985). Moreover, an arbitrator's interpretation of the parties' collective bargaining agreement or of applicable law cannot be challenged as a nonfact. See, e.g., National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, 54 FLRA 1354, 1362 (1998) (FAA). See also American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995) (an interpretation of the parties' agreement cannot be challenged as nonfact); U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 605 (1991) (Philadelphia Naval Shipyard) (an interpretation of law cannot be challenged as nonfact).

      The issue resolved by the Arbitrator concerned whether the Agency was obligated to bargain over the proposed competitive areas under Article 31, Section 13 of the parties' collective bargaining agreement. Based upon his reading of Article 31, Section 13 and applicable Authority precedent, the Arbitrator concluded that the Agency had violated the agreement by refusing to bargain over those areas. See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 55 FLRA No. 173 (1999), slip op. at 13 (SSA, Baltimore) ("Once the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator.") Because the Arbitrator's interpretation of the parties' agreement and his application of Authority precedent cannot be challenged on the ground of nonfact, the Agency's exception does not provide a basis for finding the award deficient on that ground. See FAA and Philadelphia Naval Shipyard.

      Accordingly, we deny the Agency's exception. [n4] 

IV.     The Arbitrator's Finding that the Proposed Competitive Areas Are Negotiable under the Parties' Collective Bargaining Agreement Is Not Contrary to Law.

A.     Positions of the Parties

1.     Agency

      The Agency claims that the award is contrary to law because it is inconsistent with Local 32. According to the Agency, the court held in Local 32 that a union has the right to bargain on the conditions of employment only of employees who are members of the bargaining unit. The Agency argues that "a proposal that determines the competitive area for supervisors as well as bargaining unit members exceeds the authority of the union under [section 7114(a)(1) of] the Statute." Exceptions at 6. The Agency distinguishes Fort Rucker on the ground that the provision in that case constituted an "absolute commitment" to bargain on competitive areas and was not subject to a limitation pertaining to applicable laws, rules, and regulations as set forth in the proviso to Article 31, Section 13 in this case. Exceptions at 6.

2.     Union

      The Union notes that "[i]t is inevitable by the nature of the issue that any proposal relating to the definition of the competitive area would impact, somehow, on supervisors and non-bargaining unit employees." Opposition at 5. The Union also states that it "has never tried to be the exclusive representative of any supervisor or non-bargaining unit employees[.]" Id. According to the Union, relying on section 7114(a)(1) as "a legal reason to declare the Union proposal non-negotiable is to misapply the statutory provision." Id.

B.     Analysis and Conclusions

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Ser- [ v55 p1306 ] vice, Carolina District, Charlotte, North Carolina, 54 FLRA 250, 253 (1998).

      Proposals governing the conditions of employment of supervisors and managers exceed are outside the duty to bargain. Local 32 at 816. Such proposals are, however, permissive, rather than prohibited, matters of bargaining under the Statute. American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 681-82 (1996) (SSA) (Member Armendariz concurring). See also Professional Airway Systems Specialists, District No. 6, PASS/MEBA and U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina, 54 FLRA 1130, 1136 (1998); American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 501 n.16 (1995). Consequently, once an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute. SSA at 682. Specifically, where the parties agree to negotiate over competitive areas, "even if some of the competitive areas covered by [that agreement to negotiate] also include supervisors, the provision is enforceable under [SSA] unless it is otherwise inconsistent with the Statute." Fort Rucker, 53 FLRA at 623.

      In sum, Authority decisions issued subsequent to Local 32 have established that: (1) competitive areas are permissive subjects of bargaining, notwithstanding the fact that they would include supervisors and managers, provided that they are otherwise consistent with law; (2) where the parties' agreement provides for bargaining over competitive areas, that agreement is enforceable; and (3) competitive areas proposed for bargaining under such an agreement provision are within the duty to bargain even if they include supervisors and managers, provided the proposed areas are otherwise consistent with law. The Arbitrator's finding that Article 31, Section 13 is enforceable, and that the proposed competitive areas offered by the Union pursuant to Article 31, Section 13 are negotiable under the parties' agreement, is consistent with this precedent.

      The Agency's attempt to distinguish Fort Rucker, on the ground that the provision at issue therein did not contain an applicable law proviso like that set forth in Article 31, Section 13, is unavailing. The Agency's argument ignores the fact that Article 31, Section 13 and the provision in Fort Rucker both constitute the parties' agreement to bargain over competitive areas and that such agreements are not contrary to law. See SSA, Baltimore, 55 FLRA No. 173, slip op. at 15 (arbitrator's award enforcing agreement to bargain on permissive subject is not contrary to law). See also U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360, 375 (1998); National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56, 62 (1986) (Blue Ridge Parkway) (provisions cannot be found to be inconsistent with law based only on the fact that they concern a permissive matter). Consequently, as the Authority pointed out in Fort Rucker, competitive area proposals negotiated pursuant to those agreements, such as the proposals in this case under Article 31, Section 13, are not contrary to law solely because they include supervisors and managers. In this regard, the Agency's only objection to the Union's competitive area proposals is that those areas would include supervisors and managers. [n5] 

      The Agency has not demonstrated that this precedent is inconsistent with the court's holding in Local 32. Specifically, the Agency does not argue that Local 32, or the Statute, require the conclusion that matters pertaining to the conditions of employment of supervisors and managers are a prohibited, as opposed to a permissive, subject of bargaining. Consequently, the Agency has not demonstrated that the award is contrary to law.

      Accordingly, we deny the Agency's exception.

V.     The Award Is Not Deficient As Failing to Draw Its Essence from the Parties' Agreement.

A.     Positions of the Parties

1.     Agency

      The Agency claims that "nothing in the MLA suggests that the Agency waived the right to declare a competitive area non-negotiable during the course of negotiations." Exceptions at 4. According to the Agency, Article 31, Section 13 of the MLA limits the Agency's obligation to bargain over competitive areas to those that are "in accordance with 'applicable laws, rules, and regulations.'" Id. The Agency contends that a competitive area that includes supervisors and managers is not in accordance with applicable law. The Agency maintains that the Arbitrator's award ignores the "applicable law" proviso of Article 31, Section 13 and that, as [ v55 p1307 ] a result, the award does not draw its essence from the agreement.

2.     Union

      The Union contends that, under Article 31, Section 13, "competitive areas that may impact on non-bargaining unit personnel or supervisors are not illegal." Opposition at 4 (emphasis in original). According to the Union, the Arbitrator's award in this regard is a plausible interpretation of Article 31, Section 13.

B.     Analysis and Conclusions

      The Agency argues that the Arbitrator's award cannot be reconciled with Article 31, Section 13 of the MLA. For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established 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 purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of an arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 55 FLRA 596, 599 (1999); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

      Article 31, Section 13 of the MLA requires the Agency to negotiate competitive areas in accordance with applicable laws, rules and regulations. The Arbitrator found that the Agency violated this provision of the agreement, and that the proper remedy was for the Agency to implement the competitive areas proposed by the Union. The Agency's exception fails to demonstrate that the Arbitrator's interpretation and application of Article 31, Section 13 is unfounded, implausible or irrational. As such, it does not provide a basis for finding that the award fails to draw its essence from Article 31, Section 13.

      Accordingly, we deny the Agency's exception.

VI.     The Arbitrator's Order Requiring the Agency to Implement the Union's Proposed Competitive Areas Is Not Contrary to Law, nor did the Arbitrator Exceed His Authority.

A.     Positions of the Parties

1.     Agency's Exception

      The Agency claims that the Arbitrator exceeded his authority and violated section 7103(a)(12) of the Statute "by ordering the Agency to implement the [U]nion's competitive area." Exceptions at 6. Specifically, the Agency argues that, under section 7103(a)(12), the bargaining obligation imposed by the Statute does not require a party to agree to a proposal. The Agency asserts that, in a negotiability case, consistent with section 7103(a)(12), when the Authority finds that a proposal is negotiable, "bargaining would still be required by the parties." Id. at 7.

2.     Union's Opposition

      The Union claims that the Arbitrator did not exceed his authority. In particular, according to the Union, the Arbitrator properly framed the issue as whether the Agency violated the contract in declaring the Union's proposed competitive areas nonnegotiable. The Union contends that the Arbitrator's "remedy certainly was within the scope" of that issue. Opposition at 6.

      The Union argues that section 7103(a)(12) "has nothing to do with the Arbitrator's authority." Id. at 8. According to the Union, the contract empowers the Arbitrator to formulate the issues and the Agency only argues that the Arbitrator had no authority to resolve the issues in the grievance because the Arbitrator did not agree with the Agency's interpretation of Article 31, Section 13.

B.     Analysis and Conclusions

1.     Contrary to Law

      As noted above, Section IV.B. of this memo, in reviewing arbitration awards for consistency with law, the Authority must review the questions of law raised by the arbitrator's award and the exceptions de novo. The question raised by this exception is whether the Arbitrator's remedy, requiring the Agency to implement the proposed competitive areas, is consistent with section 7103(a)(12) of the Statute.

      Section 7103(a)(12) defines "collective bargaining" under the Statute and provides that the obligation to bargain under the Statute "does not compel either party [ v55 p1308 ] to agree to a proposal or make a concession." This case, however, does not involve the duty to bargain under the Statute. Rather, as framed and resolved by the Arbitrator, the issues in this case concerned the Agency's obligation to bargain under Article 31, Section 13 of the parties' collective bargaining agreement. Consequently, section 7103(a)(12) does not apply in this case and the Arbitrator was not subject to the limitations on remedial authority contained therein. Nothing in section 7103(a)(12) precluded the Arbitrator from requiring the Agency to adopt the proposed competitive areas as a remedy for its violation of Article 31, Section 13. It is well established that arbitrators have "broad authority to fashion a remedy for a violation of a collective bargaining agreement." U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1686-87 (1996), quoting American Federation of Government Employees, AFL-CIO, Local 2608 and U.S. Department of Health and Human Services, Social Security Administration, New York, Region 2, San Juan Teleservice Center, 49 FLRA 1589, 1594 (1994).

      Accordingly, we deny the Agency's exception.

2.     Exceeded Authority

      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., U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 55 FLRA 596, 598 (1999). The Agency excepts to the Arbitrator's award only on the ground that he disregarded limits on his remedial authority under section 7103(a)(12) of the Statute. We concluded above that section 7103(a)(12) does not apply to the Arbitrator's remedy in this case. Consequently, the Agency has failed to demonstrate that the Arbitrator exceeded his authority by requiring the Agency to implement the proposed competitive areas.

      Accordingly, we deny the Agency's exception.

VII.     Decision

      The Agency's exceptions are denied.


Member Cabaniss, concurring.

      I write separately to note my views as to the holding in this case. The Arbitrator herein found that the Agency had violated its contractual duty to bargain over competitive areas by refusing to negotiate on the particular competitive areas offered by the Union and ordered the Agency, as a remedy for its violation, to implement those competitive areas. I emphasize that this case solely concerns the enforcement of the Agency's duty to bargain under the contract over a nonmandatory subject of bargaining. It does not in any way implicate the Agency's duty to bargain over mandatory subjects of bargaining under the Statute. Consequently, applicable limits on an arbitrator's power to enforce an agency's duty to bargain under the Statute do not come into play.



Footnote # 1 for 55 FLRA No. 210

   Member Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 210

   Article 31, Section 13 of the Master Labor Agreement (MLA) between the Defense Logistics Agency and the American Federation of Government Employees, Council of AFGE Locals, provides as follows:

The competitive areas will be negotiated at the PLFA [Primary Level Field Activity] level in accordance with applicable laws, rules, and regulations.

Footnote # 3 for 55 FLRA No. 210

   This information is derived from the Agency's Exceptions because the Arbitrator's award does not completely lay out the factual context in which the grievance arose. The Union does not dispute the Agency's description of the facts in this regard.


Footnote # 4 for 55 FLRA No. 210

   Given this result, it is not necessary to address the Union's request that the Authority not consider the General Counsel's letter dismissing the Union's unfair labor practice charge. See section 2429.5 of the Authority's Regulations.


Footnote # 5 for 55 FLRA No. 210

   The Agency does not allege that the award is inconsistent with 5 C.F.R. § 351.402(b), which generally requires that such areas be defined in terms of organizational units or geographical locations and that they include all employees in the areas so defined. Exceptions at 6. See, e.g., U.S. Department of the Interior, Bureau of India