U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, Distribution Depot Red River, Texarkana, Texas (Agency) and National Association of Government Employees, Local R14-52 (Union)
[ v56 p690 ]
56 FLRA No. 116
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION CENTER
DISTRIBUTION DEPOT RED RIVER
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-52
September 26, 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 case is before the Authority on exceptions to an award of Arbitrator Francis X. Quinn filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated Article XXXII (Temporary Duty Travel) by denying the grievant a temporary duty assignment. [n1] The Arbitrator ordered the Agency to make the grievant whole by paying him any lost pay and benefits that he would have received absent the contract violation. For the reasons set forth below, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is a heavy mobile equipment mechanic with particular expertise in the mechanical systems of the multiple launch rocket. After a temporary duty assignment (TDY) in Israel, the grievant was admonished by his supervisors for his behavior while on that assignment. As a result of a second TDY assignment in Israel, a number of examples of alleged misconduct by the grievant were reported to the Agency, including evidence that he undermined the work group leader by instigating a change in hotel accommodations contrary to the direction of the embassy, which threatened to expel the work group from the country. In this regard, the Arbitrator found, based on the record, that the grievant's "past behavior may have been an embarrassment to some of his colleagues[.]" Award at 4. After the second TDY, an investigation was initiated into allegations that the grievant violated the Agency's Standards of Conduct. [n2] The grievant was not informed of that investigation. While that investigation was being conducted, the grievant became next in line for a new TDY to Denmark under Article XXXII. However, he was informed that he would not be sent on that assignment and received no explanation for being passed over. [n3] The grievant thereupon filed the grievance involved in this case.
The Arbitrator framed the issue as follows:
Did the Agency violate the Negotiated Agreement by denying the Grievant . . . a TDY assignment . . . ? If so, what is the remedy?
Id. at 1.
The Arbitrator found that Article XXXII, Section 3 required that TDY be assigned on an equitable and rotational basis. He also found that there were two exceptions to that requirement. Specifically, employees were not required to be assigned TDY if they were under a letter of instruction for leave usage or they had documented performance below the satisfactory level. The Arbitrator found that when the grievant was not sent on the TDY assignment to Denmark he was not disqualified [ v56 p691 ] under either of those exceptions. The Arbitrator found that the "only suggested reason" for the denial of the assignment to Denmark was the grievant's behavior on a previous TDY, behavior for which the grievant had already been disciplined. Award at 4. According to the Arbitrator, if the grievant and the Union had been "notified why he was passed over, had they been told there was a security issue, or a continuing investigation into his conduct or professional ethics, this matter might well have had a different outcome." Id.
The Arbitrator found that there were "disciplinary overtones" to the Agency's denial of TDY to the grievant. Id. According to the Arbitrator, the grievant was "qualified," but "he was given no specific reason why he was deemed ineligible[.]" Id. In particular, the Agency "did not reference any regulation, rule, or past practice that allowed them to disqualify" the grievant. Id. at 5. The Arbitrator found that the Agency's concerns about the grievant's conduct, which underlay the decision to deny TDY, in particular, that his behavior "reflected badly on the Agency," should have been resolved through the applicable disciplinary procedures under the Agency's regulations. Id. at 3. In this regard, the Arbitrator stated that "there is no provision under any of its disciplinary guidance for the denial of TDY based on a disciplinary infraction." Id. at 5.
The Arbitrator found that "rosters for assignment of TDY" do not affect management's right to assign work under section 7106(a)(2)(B) of the Statute because such rosters only concern which employee among a group of employees already performing the work to be done will be sent to the TDY location. Id. The Arbitrator also found that such rosters must provide that the employees on the roster be qualified to perform the work to be done on TDY. According to the Arbitrator, the Agency did not dispute that the grievant was qualified to perform the work on the scheduled TDY. The Arbitrator concluded that the grievant should have been selected for the TDY assignment under the procedures in the parties' agreement.
The Arbitrator concluded that the Agency violated Article XXXII, Section 3 and ordered that the Agency "make the [g]rievant whole by paying him all pay and benefits that he would have received absent the violation of the contract." Id. at 6.
III. Positions of the Parties
A. Agency's Exception
The Agency excepts to the Arbitrator's award on the ground that it is contrary to law under section 7122(a)(1) of the Statute. In particular, the Agency claims that, under section 7106(a)(2)(B) of the Statute, management has the right to determine the qualifications necessary to perform work, including individual job-related characteristics such as judgment and reliability, and whether employees possess those qualifications. In this regard, the Agency asserts that, on previous TDY assignments, the grievant had "exhibited behavior . . . which did not comport with that of a Federal government employee working in a foreign country" and, in light of that behavior, "his disqualification was reasonable." Exceptions at 8, 10. The Agency contends that the Arbitrator's award affects management's right to assign work because it disregards management's right to determine employee qualifications. [n4]
The Agency also claims that arbitrators are precluded from reviewing management's determinations as to employee qualifications. [n5] According to the Agency, the Arbitrator rejected its claim that the grievant was not qualified. The Agency asserts that the Arbitrator only considered the grievant's technical qualifications, whereas it considered other factors.
The Agency also contends that the award abrogates management's right to assign work. The Agency further asserts that the award abrogates management's right to determine its internal security practices under section 7106(a)(1) because, by requiring management to give the grievant notice of its investigation into his conduct, the award would have compromised that investigation. The Agency maintains that the award does not constitute a reconstruction of what the Agency would have done if it had complied with Article XXXII because "management would not pay benefits to an employee who they did not send [on] TDY because he wasn't qualified." Exceptions at 14. [ v56 p692 ]
B. Union's Opposition
The Union contends that the award is not contrary to law. According to the Union, provisions requiring rotation of work assignments among qualified employees do not affect management's rights. In particular, the Union argues that, because TDY assignments only involve employees doing regularly assigned work at a different location, TDY does not involve an assignment of work at all. [n6] The Union asserts that the work the grievant would have performed on TDY is the same work he performed at his regular work station during the time of the TDY. The Union further asserts that the Agency does not dispute that the grievant is qualified to perform such work.
As to the Agency's arguments regarding the grievant's qualifications, the Union states that the Agency did not cite to any policy, regulation, or contract provision as a basis for its position that the grievant was not qualified for TDY. [n7] Rather, the Union maintains, the basis for the Agency's denial of TDY, as found by the Arbitrator, was allegations concerning misconduct by the grievant on previous TDY. The Union notes, in this regard, that the Agency does not dispute the Arbitrator's finding that denial of TDY is not a disciplinary action. The Union also notes that, at the time the Agency denied the grievant TDY, there were no disciplinary charges pending against the grievant and the grievant had not been notified of the allegations of misconduct. According to the Union, the Arbitrator properly found that the reasons given by the Agency for the denial of TDY concerned a disciplinary matter that should have been resolved under the applicable disciplinary procedures contained in the Agency's regulations. The Union claims that the Agency's arguments regarding the grievant's qualifications are a pretext for what otherwise should have been a disciplinary action. The Union contends that the Agency's position amounts to a justification for arbitrary and capricious behavior.
Finally, the Union contends that the award contains an appropriate remedy. According to the Union, the Arbitrator properly made the grievant whole for losses in overtime and benefits he would have received if he had been assigned the TDY in question.
IV. Analysis and Conclusions
A. The Applicable Analytical Framework
The Agency's exception concerns whether the Arbitrator's award is contrary to law, in particular, management's rights under section 7106(a) of the Statute. The Authority reviews questions of law raised by an agency's exceptions and an 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, the Authority determines 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 determination, the Authority defers 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 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 provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies Prong II.
B. The Award Does Not Affect Management's Rights
The threshold question under the BEP analysis is whether the award affects a management right. In this regard, the Authority has held that where management determines that it is necessary for employees to perform [ v56 p693 ] the duties of their positions at different locations and that the employees to be selected for such assignments are equally qualified, a provision establishing the criteria for deciding which of those employees will perform their duties at one or another of those different locations does not affect management's right to assign work under section 7106(a)(2)(B). [n8] Article XXXII, Section 3, at issue in this case is such a provision. The Agency contends, however, that the Arbitrator's enforcement of Article XXXII, Section 3, affects management's right to assign work because it deprives the Agency of its discretion as to the grievant's qualifications for the work to be performed on TDY.
The Agency has not demonstrated that its decision to deny the grievant the TDY assignment to Denmark, which he was entitled to under Article XXXII, Section 3, was based on a concern over the grievant's qualifications to perform the work of that assignment. See, e.g., National Treasury Employees Union, Chapter 137 and United States Customs Service, Region IV, 34 FLRA 650, 655-56 (1990) (exception denied because agency failed to support claims as to qualifications). It is undisputed that the Agency had previously determined that the grievant was qualified to do the work involved. The Agency does not claim that the grievant lacked any of those qualifications at the time he was not sent on the next TDY assignment to Denmark. Moreover, and as found by the Arbitrator, the Agency did not identify the qualification that the grievant was alleged to lack, explain its relation to the work to be performed on TDY, or demonstrate that he was on notice as to that requirement. Specifically, the Agency did not argue, for example, that the grievant lacked the judgment or reliability required by the TDY assignment. Cf. Buffalo VAMC, 32 FLRA at 605.
As found by the Arbitrator, the Agency's decision to deny the grievant TDY was based on allegations of improper conduct during a previous TDY assignment, which were more appropriately handled under the Agency's disciplinary procedures. Before the Arbitrator, the Agency made no attempt to demonstrate the manner in which the alleged misconduct concerned the grievant's qualifications for the TDY assignment. Moreover, the Agency provides no basis for concluding that the Arbitrator mischaracterized as a disciplinary matter the Agency's grounds for denying the grievant TDY. In particular, the Agency does not dispute that, subsequent to its denial of the TDY assignment to Denmark, it disciplined the grievant on grounds related to the rationale by which it denied that assignment.
Moreover, it is undisputed that, at the time of the arbitration hearing in this case, the grievant had been approved for, and was scheduled to undertake a new, additional TDY assignment. Even if the Agency's argument were to be construed as a claim that the grievant lacked the qualifications for such assignments in foreign countries, it presented no evidence as to the training or other experience that remedied that lack of qualification during the period of the TDY denied to him and his next scheduled TDY. The only intervening event was the disciplinary action against the grievant. Consequently, the Agency has not established that the award affects management's right to assign work, including the right to determine the qualifications necessary to perform the work and to assess whether employees possess those qualifications.
This case is distinguishable from Selfridge. In that case, the agency had previously established, as a qualification for assignment on TDY, a weight requirement for all employees which was related to considerations of employee effectiveness in performing assigned work. Id. at 386. The award in that case found that the agency had violated the parties' agreement by denying an employee who did not meet that weight requirement a TDY assignment, and the Authority held that the award violated management's right to assign work under section 7106(a)(2)(B). The Agency in this case, however, did not identify such a previously established qualification that applied to all employees.
This case is also distinguishable from Buffalo VAMC, which involved the reassignment, on the grounds of patient care needs, of a nurse who had been disciplined for improper conduct in the emergency room. Unlike Buffalo VAMC, where a connection was established between the conduct involved in the disciplinary action and the qualifications of the nurse who was reassigned, the Agency herein has not demonstrated such a relationship between the grounds asserted for denying the grievant TDY and the qualifications necessary for the TDY assignment.
Finally, this case is distinguishable from IAM. The Agency herein failed to establish before the Arbitrator that the qualifications required for the TDY assignment encompassed the matters asserted as the reasons why [ v56 p694 ] the grievant was held back from the TDY assignment to Denmark.
Consequently, the Agency has not demonstrated that the award affects management's right to assign work under section 7106(a)(2)(B) of the Statute.
We also find that the Agency has not demonstrated that the award affects its right to determine its internal security practices. In this regard, the Arbitrator found that the matter being investigated by the Agency was a disciplinary matter concerning the grievant's conduct. The Agency has not established that the matter had any connection to its internal security policies or practices. See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 55 FLRA 498, 502-03 (1999) (based on arbitrator's factual findings Authority concluded agency had not established connection between award and agency's internal security practices). Consequently, we find that the award does not affect management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Because the award does not affect management's rights under section 7106(a) of the Statute, it is not necessary to reach Prongs I and II of the BEP framework. In particular, because the Agency's arguments that the award abrogates management's right to assign work and to determine its internal security practices pertain to the requirements of Prong I, it is not necessary to address those arguments.
Accordingly, we deny the Agency's exception.
V. The Award Does Not Fail to Draw its Essence from the Parties' Agreement.
A. Positions of the Parties
1. Agency's Exception
The Agency excepts to the award on the ground that the award does not draw its essence from the parties' agreement. Specifically, the Agency contends that Article XXXII, Section 3 does not require management to explain why an employee is not qualified for TDY. According to the Agency, the award is based on the Arbitrator's finding that the issues underlying the denial of TDY should have been resolved as disciplinary matters. The Agency claims that, in the circumstances of this case, if it had explained to the grievant the reasons for the denial of TDY, it would have compromised the investigation into his conduct.
2. Union's Opposition
The Union contends that the award is not deficient on essence grounds. According to the Union, the Agency's essence exception is based on dicta in the Arbitrator's award and the Agency has not demonstrated that the dicta at issue are contrary to the parties' agreement.
B. Analysis and Conclusions
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 United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).
The Arbitrator found that the Agency violated Article XXXII, Section 3 by failing to send the grievant on a TDY assignment as required by that provision. The Arbitrator found that the basis on which the Agency denied the assignment concerned a disciplinary matter, rather than the grounds specified in Article XXXII, Section 3. In making that finding, the Arbitrator considered, among other things, the fact that the Agency did not advise the grievant that he was under investigation. Even assuming, for the sake of argument, that the Arbitrator's finding amounted to an interpretation of Article XXXII, Section 3, as requiring it to notify the grievant of the basis for the denial of TDY, the Agency has not demonstrated that the Arbitrator's interpretation in this respect is irrational or implausible or manifests a disregard for the agreement. The Agency's argument that notifying the grievant would have compromised its investigation raises questions about the possible consequences of such an interpretation, but does not establish that the interpretation itself fails to draw its essence from the agreement.
Accordingly, we deny the Agency's essence exception. [ v56 p695 ]
VI. The Arbitrator Did Not Exceed His Authority.
A. Positions of the Parties
1. Agency's Exception
The Agency excepts to the award on the grounds that the Arbitrator