U.S. Department of Health and Human Services, Indian Health Service, Alaska Area Native Health Services, Anchorage, Alaska (Agency) and American Federation of Government Employees, Local 1668 (Union)

[ v56 p535 ]

56 FLRA No. 83

U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, INDIAN HEALTH SERVICE
ALASKA AREA NATIVE HEALTH SERVICES
ANCHORAGE, ALASKA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1668
(Union)

0-AR-3216

_____

DECISION

July 31, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

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 Eric B. Lindauer 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 did not file an opposition to the exceptions.

      The Arbitrator denied a grievance alleging that the Agency had failed to properly comply with a remedy requested in an earlier grievance involving a grievant employed as a medical records technician (MR technician grievance). As part of his award, the Arbitrator also found that the Agency was obligated under the parties' 1998 collective bargaining agreement (1998 Agreement) to reimburse Union representatives in the MR technician grievance for the reasonable time they expended advancing the grievance through the grievance and arbitration process.

      For the reasons that follow, we conclude 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

      In November 1998, the grievant, a medical records technician employed in the Medical Records Department (MRD) of the Health Information Service of the Agency, was issued a written reprimand for failing to follow her supervisor's order. On November 16, 1998, the Union filed a grievance, the MR technician grievance, contending that the discipline violated the just cause and employee rights provisions of the 1998 Agreement. At the third step, the reviewing official denied the grievance but shortened the length of time that the reprimand would remain in the grievant's personnel file, based not on the merits of the grievance but on anticipation of the grievant's transfer to the Alaska Native Tribe Health Consortium after the new year. In December 1998, the reprimand was removed from the grievant's file.

      As part of the grievance, the Union requested that all employees disciplined under the policy in which the grievant had been disciplined be made whole and that the Agency provide it with records of other employees who were issued disciplinary action for the two year period prior to the grievance. The Agency advised the Union that no other employee in the MRD, other than the grievant, had been disciplined for similar circumstances. The Agency asserted, therefore, that it had complied with the Union's request. The Union disagreed. The matter was submitted to arbitration.

      At the arbitration hearing held on June 16, 1999, the Union raised the issue of whether the Union representatives would be compensated for time spent processing the MR technician's grievance. The Union asserted that its representatives were entitled to be reimbursed because the grievance arose under the 1998 Agreement, which provided official time for the performance of such activities. [n1]  The Agency objected to the inclusion of this issue arguing that it was not properly before the Arbitrator.

      The Arbitrator "granted the Union's request to have this issue submitted to arbitration as a part of the [MR technician] grievance." Award at 3. The parties were unable to agree on the issues to be decided by the Arbitrator. Therefore, the Arbitrator framed the issues as follows:

1.     Did the Agency grant the relief specified in the [MR technician] grievance No. 8-11-16-98? If not, what is the appropriate remedy? [ v56 p536 ]
2.     Are the Union's representatives entitled to reimbursement for representation of the Union in connection with the [MR technician] arbitration?

Id. at 4.

      The Arbitrator concluded that the Agency complied with the remedies requested by the Union in the MR technician grievance. Accordingly, the Arbitrator denied the grievance as it concerned the first issue. [n2] 

      As to the second issue, the Agency argued that the Union was prohibited from raising this issue in the arbitration hearing because: (1) it was not filed in a timely manner; (2) it was barred by an unfair labor practice (ULP) charge filed by the Union on the same issue before the Arbitrator; and (3) the parties entered into a new collective bargaining agreement on December 31, 1998 (Agreement II), and there is no provision in Agreement II for release of an employee on official time. The Agency asserted, therefore, that under Agreement II there is no basis on which the Union is entitled to reimbursement and, thus, the Arbitrator was "precluded from modifying the current [a]greement to include a provision . . . on official time . . . ." Id. at 11-12. The Union argued that because this grievance arose out of the 1998 Agreement, "the provisions of that Agreement are controlling, including Section 4." Id. at 12.

      The Arbitrator considered the parties' contentions and concluded that the "1998 Labor Agreement is controlling." Id. In this regard, the Arbitrator found that the MR technician grievance was filed in November 1998. Given this, the Arbitrator found that the grievance is "governed by the terms of the 1998 Labor Agreement, both procedurally in the processing of the grievance and substantively as it relates to the merits of the case." Id. at 13.

      The Arbitrator stated that "although there is no contractual language [in the current Agreement] which speaks to this issue, had the parties considered the issue, they would have reached the same conclusion as [he did]." Id. at 15. In this regard, the Arbitrator stated that there is not only a "logical contractual basis for the decision, but a matter of fairness to the represented employees as well." Id.

      The Arbitrator also found that in March 1999, the Union advised the Agency of its official time concern and, therefore, "the issue of reimbursement should come as no surprise to the Agency." Id. at 14. The Arbitrator concluded that the grievance had been an ongoing contention of the Union and relates to the processing of the MR technician grievance. Also, the Arbitrator stated that it would be contrary to "the duty of fair representation" for the Union to file a grievance on behalf of the grievant under the 1998 Agreement and then deny the grievant representation at arbitration because the current Agreement fails to provide for official time. Id.

      The Arbitrator next addressed the Agency's claim that the issue of whether the Union was entitled to be reimbursed official time was barred by section 7116(d) of the Statute because the Union had filed a ULP on the same issue. The Arbitrator found that the Union filed a ULP on April 5, 1999, and later withdrew it on the basis that the "granting of official time was covered by the [1998 Agreement]." Id. at 15. The Arbitrator found that the issue was properly before him. The Arbitrator stated that the "ULP was filed only on the basis that the Agency was not being responsive to the Union's request for reimbursement. Since the ULP was withdrawn by the Union, there is no conflict with the [Statute]." Id.

      Accordingly, the Arbitrator concluded that Section 4A of the 1998 Agreement is controlling with respect to official time use in this case. He further concluded that the Union representatives in the MR technician grievance are entitled to be reimbursed for the reasonable time expended in advancing the grievance through the grievance and arbitration process. [ v56 p537 ]

III.     Agency's Exceptions

      First, the Agency asserts that the Arbitrator did not have jurisdiction to decide the official time issue because it was barred by section 7116(d) of the Statute. [n3]  Citing Authority precedent, the Agency contends that the grievance is precluded by section 7116(d) because the official time issue "raised" at arbitration arises out of the same circumstances and is identical to the issue raised in the ULP charge filed in Case No. SF-CA-90352. Exceptions at 4. The Agency contends that Case No. SF-CA-90352 was filed on April 5, 1999, prior to the matter being raised before the Arbitrator on June 16, 1999.

      In support of its contention that the issue is identical to that raised in the ULP, the Agency notes the Union's reference to the instant grievance case number in the ULP charge. According to the Agency, this reference to the grievance shows that the issues in both cases "arose out of the same set of circumstances and are identical in nature." Id. at 5. The Agency further asserts that the Union's indication on the ULP charge form that the issue in the ULP had not been previously raised in any other procedure further demonstrates that the official time issue involved here was previously raised in the ULP. The Agency also contends that the ULP was filed in the discretion of the aggrieved party.

      Secondly, the Agency asserts that the official time issue "was not properly raised as prescribed" in a timely manner as required by Article 9, Section 7, Step 1(C)(2) of the parties' agreement and, therefore, the Arbitrator should not have considered it. [n4]  Exceptions at 6. According to the Agency, Article 9, Section 7, Step 1(C)(2) provides that the grievance must be in writing and contain the matter being grieved, specifically and in detail. The Agency states that the Union did not raise the official time issue during the course of the grievance. The Agency contends, therefore, that the grievance is not properly before the Arbitrator.

      Thirdly, the Agency contends that the Arbitrator does not have the authority to add to or modify the provisions of the current collective bargaining agreement. According to the Agency, in finding that Union representatives were entitled to official time, the Arbitrator "substitute[d] his judgment for the judgment of the parties" who negotiated the current agreement. Id. at 7. The Agency asserts that there is no provision in Agreement II that grants official time for the processing of grievances or arbitrations, and the Union, who has had the opportunity to reopen Agreement II, has to date not elected to do so.

      The Agency further asserts that the Arbitrator failed to take into account that on January 1, 1999, it entered into a "638 Contract" under the Indian Self-Determination and Education Assistance Act which permits Indian Tribes to take over functions that were provided by the Agency. [n5]  The Agency contends that the tribal entities who entered into this agreement with the Agency were the Alaska Native Tribal Health Consortium and Southcentral Foundation (the Corporation), at which time "all bargaining unit employees were placed on Special Purpose [Intergovernmental] Personnel Agreements." Id. at 8.

      Citing Hu Hu Kam, the Agency contends that it is "responsible for and retains control over some residual functions of the employees such as discipline, the accrual of leave, retirement, health insurance, life insurance, promotion, quality step increases, cash awards, and within-grade increases and as such has an obligation to negotiate over these residual functions." Id. at 8-9. However, the Agency asserts that it has no control of day to day operations of the employees, including work assignments, and approval of leave and/or absences because these matters are now controlled by the Corporation. [ v56 p538 ] The Agency contends, therefore, that it does not possess the ability or authority to grant official time nor does it have any knowledge of the extent of the Union officials' work assignments. The Agency asserts that as it has no control over the employees' work assignments it "is unable to reach an agreement on what is reasonable official time." Id. at 10.

IV.     Analysis and Conclusions

A.     The Grievance Is Not Barred by Section 7116(d) of the Statute

      An exception alleging that an award is contrary to law is reviewed by the Authority 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 the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 770 (1998) (NTEU, Chapter 156) (citing 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 findings of fact. Id.

      Because the Agency's exceptions challenge the award's consistency with section 7116(d) of the Statute, the exceptions are reviewed de novo.

      In order for a grievance to be barred from consideration under section 7116(d) by an earlier-filed ULP charge: (1) the issue that is the subject matter of the grievance must be the same as the issue that is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedures must have been at the discretion of the aggrieved party. See, e.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 392 (1996). In determining whether a grievance and a ULP charge involve the same issue, the Authority examines whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the ULP charge and the grievance are substantially similar. See id. at 392-93.

      It is uncontroverted that the Union is the same "aggrieved party" in both the grievance and the ULP charge that was filed at the Union's discretion. With regard to whether the grievance and the ULP involve the same issue, the issue involved in the grievance concerns whether Union representatives were entitled to reimbursement (official time) for representation activities in the MR technician grievance. Specifically, whether the "granting of official time [for such representatives] was covered by the Labor Agreement in effect at the time the grievance was filed." Award at 15. See also Award at 3. The issue raised in the ULP concerned whether the Union's request for official time to handle "Grievance . . . Arbitration Case #990218-06705-7," MR technician grievance, and the Agency's failure to grant such time, constituted a violation of section 7116(a)(1)(5) and (8) of the Statute. Exceptions, Exhibit 7.

      The Arbitrator concluded that the grievance was not barred by the ULP because the ULP was withdrawn by the Union. The Arbitrator erred in reaching this conclusion because the Authority has consistently held that an issue is "raised" within the meaning of section 7116(d) at the time of the filing of a grievance or a ULP, even if the grievance or ULP charge is withdrawn and not adjudicated on the merits. E.g., International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 44 FLRA 1291, 1298 (1992). Therefore, if the issues in the ULP and the grievance were the same, withdrawal of the ULP could not be a basis on which the matter could be found to be properly filed under section 7116(d). However, notwithstanding the Arbitrator's finding, the issue is not precluded by section 7116(d) because the "legal theories" involved in the grievance and the ULP charge are not the same.

      As stated above, the grievance concerned whether the "granting of official time [for Union representatives] was covered by the Labor Agreement in effect at the time the grievance was filed[,]" while the ULP alleges violations of section 7116(a)(1), (5), and (8) of the Statute. Award at 15. Thus, the grievance alleges a violation of the collective bargaining agreement, and the basis of the ULP allegation was a violation of the Statute. Accordingly, the grievance and the ULP were based on different legal theories. The grievance, therefore, is not barred by section 7116(d). See, e.g., Department of Defense, U.S. Army Reserve Personnel Command, St. Louis, Missouri, 55 FLRA 1309, 1313 (2000); U.S. Department of Housing and Urban Development, Denver, Colorado and American Federation of Government Employees, Local 3972, 53 FLRA 1301, 1316-18 (1998). Consequently, the Agency has failed to establish that the grievance is barred by section 7116(d) of the Statute. [ v56 p539 ]

B.     The Arbitrator Did Not Err in Finding the Grievance Timely

      An arbitrator's determination on the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that 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). An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995) (Exchange Service). Such grounds include arbitrator bias or the fact that the arbitrator exceeded her or his authority. See id.

      In this case, the Agency essentially asserts that the award is deficient because it violates various procedural requirements of Article 9, Section 7.C.(2) of the parties' agreement. In this regard, the Agency contends that the official time issue addressed by the Arbitrator was not properly before him under the procedural requirements of Article 9 and was not timely raised in accordance with this provision. The Agency's contentions directly challenge the Arbitrator's determination of procedural arbitrability and, therefore, do not provide a basis for finding the award deficient. See, e.g., U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 923 (1997). Accordingly, this exception does not provide a basis for finding the award deficient.

C.     The Award Draws Its Essence from the Parties' Agreement

      The Agency contends that the Arbitrator's finding that the Union representatives are entitled to official time is deficient because there is no provision in Agreement II that grants official time for the processing of grievances or arbitrations. According to the Agency, the Arbitrator does not have the authority to add to or modify provisions of the parties' agreement. We construe the Agency's contention as a claim that the award fails to draw its essence from the parties' collective bargaining agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies 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); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of the Treasury, U.S. Customs Service, El Paso, Texas and National Treasury Employees Union, Chapter 143, 55 FLRA 553, 561 (1999); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      In this case, the Arbitrator's determination that the 1998 Agreement, including Section 4A, entitled "Official [T]ime for Union Business," Award at 4, controlled official time use by the subject Union representatives and that the representatives were entitled to be reimbursed for the reasonable time expended advancing the MR technician's grievance through the grievance and arbitration process under the 1998 Agreement was based on his interpretation of the 1998 Agreement and Agreement II. [n6] 

      The Agency claims that the award is deficient because the current agreement, Agreement II, does not have an official time provision. The Arbitrator considered the parties' arguments, which raised questions as to which agreement applied. The Arbitrator interpreted Agreement II and found that Agreement II "[did] not provide the Union representative [] with official time to represent the grievant at the arbitration hearing." Award at 15. However, the Arbitrator determined that under the circumstances of this case "Section 4A of the 1998 Labor Agreement is controlling with respect to official [ v56 p540 ] time" for the Union representatives in the processing of the MR technician's grievance which arose before employees were detailed to the Corporation. Id. The Agency has provided no basis for finding that the Arbitrator's interpretation of the applicability of the 1998 Agreement is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, we find that the Agency has not established that the award fails to draw its essence from the parties' Agreements.

D.     The Agency's Contention that the Award of Official Time Is Deficient Because the Agency Has No Control of Union Representatives' Use of Official Time Is Not Properly Before the Authority

      The Agency asserts that it cannot grant the official time involved in this dispute because it has no control over the employees who are now under a "638" contract. The Agency acknowledges that it is "responsible for and retains control over some residual functions of the employees such as discipline, the accrual of leave, retirement, health insurance, life insurance, promotion, quality step increases, cash awards, and within-grade increases and as such has an obligation to negotiate over these residual functions." Exceptions at 8-9.

      This exception is not properly before the Authority. Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. E.g., American Federation of Government Employees, Local 2612 and U.S. Department of the Air Force, Rome Laboratory (AFMC), Rome, New York, 55 FLRA 483, 486 (1999). The record shows that the Agency argued before the Arbitrator that the official time issue was not properly before the Arbitrator because it was not "raised" prior to arbitration or "filed in a timely manner;" was barred by an "[u]nfair [l]abor [p]ractice" filed by the Union; and there is "no provision" in Agreement II which grants official time and, therefore, the Arbitrator had no authority to grant the Union's request. Award at 2 and 11. There is no indication in the record that the Agency asserted that it would be impossible to reimburse the subject Union representatives official time. Rather, the Agency's defense on the merits against reimbursing the Union representatives official time was based on the application of the "new Collective Bargaining Agreement" (Agreement II), and that resolution of the grievance centered around whether the 1998 Agreement or Agreement II was applicable. Id. at 12.

      As the issue in this exception was not raised before the Arbitrator, the exception is barred from consideration by the Authority under section 2429.5 of the Authority's Regulations. Accordingly, this exception provides no basis for finding the award deficient.

V.     Order

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 83

   The 1998 Agreement provides, in pertinent part, as follows:

1998 LABOR AGREEMENT

      Section 4. Official [T]ime for Union Business

     A.     Reasonable time during work hours will be granted to Union Representatives and aggrieved employees for attendance at meetings with Management Officials. Reasonable time will also be allowed for representatives to meet with employees to discuss grievances and other appropriate matters, including preparing for grievance, appeals, and hearings. The use of official time, in accordance with this agreement, should not influence an employee's performance evaluation in any way.
     Intent: Reasonable time is the time it takes to complete the task at hand. If Stewards are involved with employees early in the disciplinary process, overall Steward time will be reduced compared to the time involvement they have when they are called in late in the process.

Award at 4-5.


Footnote # 2 for 56 FLRA No. 83

   The Agency does not except to the Arbitrator's conclusion on this issue. As no exceptions were filed concerning this issue, it will not be discussed further in this decision.


Footnote # 3 for 56 FLRA No. 83

   Section 7116(d) provides:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. . . . [I]ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

Footnote # 4 for 56 FLRA No. 83

   Article 9, Section 7.C. provides, in relevant part as follows:

Section 7. Grievance Steps
C.     The grievance must be in writing and will contain the following:
     .     .     .     .
(2)      The matter being grieved, specifically and in detail, i.e., who, what, where, when, how, why, etc.
.     .     .     .

Footnote # 5 for 56 FLRA No. 83

   The Agency references Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona, 53 FLRA 1200 (1998) (Hu Hu Kam). It is noted that in that case it was explained that under a 638 contract an Indian tribe exercises control over a facility, such as a hospital, clinic, or school, for a period of 3 years. That period may be renewed for 2- year periods and eventually may be extended indefinitely. However, a tribe has the option not to renew a 638 contract, at which time the facility reverts to, as relevant here, the Indian Health Service (IHS). IHS also continues to be responsible for ensuring that adequate health service and care are provided to the Indians and annually reviews the service provided by the tribe. If the IHS determines that adequate service is not provided, it will resume control of the facility. Id. at 1203.


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