United States Department of Defense, National Guard Bureau, Adjutant General, Kansas National Guard (Agency) and Association of Civilian Technicians, Wichita Air Capitol Chapter, Local 74 (Union)

[ v57 p934 ]

57 FLRA No. 199

UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
ADJUTANT GENERAL
KANSAS NATIONAL GUARD
(Agency)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
LOCAL 74
(Union)

0-AR-3443

_____

DECISION

July 19, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert H. Kubie filed by the Agency under § 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 grievance was procedurally arbitrable and that the Agency violated the parties' agreement when it failed to bargain over the impact and implementation of changes to a holiday work schedule.

      For the reasons that follow, we find that the Agency has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Agency notified the Union of changes to the holiday work schedule. When the Agency refused to bargain over the changes, the Union filed a grievance, which was ultimately submitted to arbitration. The parties did not stipulate the issue before the Arbitrator. The Arbitrator stated that he had been asked to determine whether the Agency "failed to meet its contractual obligation to bargain." Award at 13 (emphasis in original).

      Before the Arbitrator, the Agency argued that the grievance was not arbitrable because it named the wrong individual and because the request for an arbitration panel was not filed by a member of the local unit. The Agency also argued that it was not obligated to bargain because the changes were "covered by" Article 10-5 of the parties' agreement, and that its only obligation under that Article was to provide thirty days' notice of the changes. [n2] 

      The Arbitrator found the grievance arbitrable. With regard to the merits, the Arbitrator stated that the Agency has authority under Federal law to "`prescribe the hours of duties.'" Award at 9. In support, the Arbitrator cited 32 U.S.C. § 709(g), noting that "[s]ubsection (h), cited by the Employer, is no longer a part of the code." Id. at 9 n.11. The Arbitrator stated that the "covered by" doctrine did not apply because it is a "defense to a refusal to bargain charge before the [Authority]." Id. at 11. According to the Arbitrator, he was "not charged with enforcement of" the Statute, but "act[ed] merely to carry out the agreement of the parties to resolve by arbitration questions of the interpretation and application of" their agreement. Id. The Arbitrator stated that although "[t]he facts suggest that what has been presented in this arbitration amounts to a Union claim of illegal refusal to bargain," he was "not empowered to determine statutory unfair labor practice charges." Id. at 13.

      The Arbitrator determined that, under Article 23-1, the Agency's practice was to bargain over the impact and implementation of holiday-related shift changes. [n3]  The Arbitrator rejected the Agency's argument that the [ v57 p935 ] notice required by Article 10-5 was intended to substitute for impact and implementation bargaining under Article 23-1, finding no evidence that the parties "had any such express discussion during their negotiations." Award at 14. In addition, the Arbitrator rejected the Agency's argument that the Union had attempted to bargain over the substance of the changes, finding that the Union did not "advance a naked demand that the new schedule be rescinded," but "merely included such a request" among various impact and implementation proposals. Id. at 12.

      The Arbitrator also found that Article 1-11 of the parties' agreement did not permit the Agency's refusal to bargain. [n4]  In this connection, the Arbitrator determined that the term "tour of duty" in that Article does not mean shifts or hours of work, but "[a] period of duty at one place." Id. at 10.

      The Arbitrator concluded that the Agency failed to meet its contractual obligation to bargain, and he ordered the Agency to bargain, on request, over the impact and implementation of future, holiday-related shift changes.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the Arbitrator erred by finding the grievance procedurally arbitrable.

      On the merits, the Agency asserts that the Arbitrator relied on an outdated version of 32 U.S.C. § 709 in concluding that subsection (h) does not apply. The Agency also contends that the Arbitrator's statement that "tour of duty" does not mean "hours of work" is contrary to 5 C.F.R. § 610.102. [n5] 

      The Agency also claims that the award fails to draw its essence from the parties' agreement. In this regard, the Agency asserts that the Arbitrator erred by finding the "covered by" doctrine inapplicable because, according to the Agency, the Union grieved a duty to bargain issue and such issues may be raised either as unfair labor practices or grievances. The Agency also asserts that, although Article 23-1 lists hours of work as an example of bargainable matters, Article 10-5 "is specific" and establishes that only 30 days' notice is required to change holiday schedules. Exceptions at 12. Finally, the Agency asserts that the Arbitrator erred by finding that the Union did not make a substantive proposal to preclude management from changing the schedules.

B.     Union's Opposition

      The Union argues that the Arbitrator properly rejected the Agency's procedural arbitrability arguments. With regard to the merits, the Union argues that, under Article 23-1, the impact and implementation of schedule changes are bargainable, and Article 10-5 does not waive its right to bargain over such changes. Further, the Union contends that it is "irrelevant" whether the Arbitrator misconstrued "tour of duty" in interpreting Article 1-11, because that Article lists only the subjects over which the Agency does not have to bargain substantively, and the Arbitrator did not order substantive bargaining. Opposition at 2. The Union asserts that it is also irrelevant whether the Arbitrator believed he could not enforce the Statute, because the question at issue is answered by Article 23-1. Id. at 3.

IV.     Analysis and Conclusions

A.     The Arbitrator's procedural arbitrability determinations are not deficient.

      An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. Id. at 186.

      The Agency's arguments directly challenge the Arbitrator's procedural arbitrability determination. As such, they do not demonstrate that the award is deficient. In this regard, the Agency's reliance on Dep't of the Army, United States Army Fin. & Accounting Ctr., Indianapolis, Ind., 39 FLRA 1586, 1587-88 (1991), is misplaced because that decision did not address procedural arbitrability. Accordingly, we deny the exception. [ v57 p936 ]

B.     The award is not contrary to law.

      The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. 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 NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     32 U.S.C. § 709(h) and 5 C.F.R. § 610.102

      32 U.S.C. § 709(h) provides, in pertinent part, that notwithstanding any provision of law, "the Secretary concerned may prescribe the hours of duty for technicians." There was no dispute before the Arbitrator, and there is no dispute in the exceptions, that under 32 U.S.C. § 709, the Agency was permitted to change the holiday work schedules. Similarly, the Agency did not contend before the Arbitrator, and does not contend in its exceptions, that 32 U.S.C. § 709 permitted it to refuse to bargain over the impact and implementation of the changes. Thus, there is no basis for concluding that the award is inconsistent with 32 U.S.C. § 709, and the Arbitrator's reliance on an outdated version of that provision does not render the award deficient.

      As for 5 C.F.R. § 610.102, the Arbitrator found that the Agency was obligated to engage in impact and implementation bargaining under Article 23-1, without regard to Article 1-11. Thus, even if the Arbitrator misconstrued the term "tour of duty" in Article 1-11, that would not affect the conclusion that the Agency was obligated to bargain. Accordingly, the Agency has not demonstrated that the award is deficient in this respect.

2.     The "Covered By" Doctrine [n6] 

      The "covered by" doctrine applies as a defense to an alleged failure to satisfy a statutory bargaining obligation. [n7]  See Soc. Sec. Admin. Headquarters, Balt., Md., 57 FLRA 459, 460 (2001). In resolving a grievance alleging such a failure, an arbitrator must apply the same standards and burdens applied by an administrative law judge in a proceeding under § 7118 of the Statute. See NTEU, Chapter 168, 55 FLRA 237, 241 (1999).

      By contrast, where a grievance involves only a dispute whether a contractual -- as opposed to statutory -- bargaining obligation has been violated, "the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator." Soc. Sec. Admin., Balt., Md., 55 FLRA 1063, 1068 (1999) (parties created contractual obligation to bargain over matters contained in § 7106(b)(1) of the Statute). In those circumstances, the Authority applies the deferential "essence" standard to the arbitrator's contract interpretation. [n8]  See id. at 1069-70. See also AFGE, Local 3937, 49 FLRA 785, 790-91 (1994) (where issue before arbitrator was contractual, not statutory, duty to bargain, arbitrator correctly analyzed only contractual issue, and that analysis was reviewed under "essence" standard).

      There is no basis for concluding that this case involves a claim that the Agency failed to meet its bargaining obligation under the Statute. The Arbitrator stated, in this regard, that "[t]he facts suggest that what has been presented in this arbitration amounts to a Union claim of illegal refusal to bargain." Award at 13. However, he did not find that the grievance alleged a violation of the Statute or that the bargaining obligation was statutory. To the contrary, the Arbitrator expressly found that he had been "asked to make a finding, for the guidance of the parties, as to whether, in these facts, the [e]mployer failed to meet its contractual obligation to bargain." Id. (Emphasis in original). This finding is supported by the record evidence, which indicates that the issue before the Arbitrator was whether the Agency [ v57 p937 ] met its contractual obligation to bargain. See Tab 11 to Exceptions (Union grievance); Tab 8 to Exceptions (Agency post-hearing brief); Tab 10 to Exceptions (Agency minutes of arbitration hearing). Moreover, neither party has excepted to this finding.

      The Agency asserts correctly that alleged violations of the duty to bargain under the Statute may be raised in grievances. In this connection, arbitrators are empowered to decide statutory unfair labor practice issues unless the matters are excluded from the scope of the grievance procedure. See AFGE, Local 3529, 57 FLRA 464, 466 (2001). As there is no claim that statutory unfair labor practices are excluded from the scope of the parties' grievance procedure in this case, the Arbitrator's statement that he was not empowered to resolve such issues is erroneous. See Award at 13.

      The Arbitrator appears to have based his conclusion that the statutory "covered by" doctrine has no application in this case on his erroneous determination that he was "not empowered to determine statutory unfair labor practices." Id. However, since, as we found above, the only issue before the Arbitrator in this case was a contractual one, not a statutory one, the statutory "covered by" doctrine does not apply. Accordingly, the Arbitrator correctly concluded, albeit for the wrong reason, that the statutory "covered by" doctrine has no application in this case. In addition, to the extent that the Agency is claiming that the Arbitrator should have interpreted the contract as providing a contractual "covered by" defense to the Agency's action, the Agency has not supported such a claim. The Arbitrator addressed the relevant contract provisions and interpreted them in such a manner as to effectively reject the Agency's contractual defense. As discussed below, the Arbitrator's interpretation of the contract draws its essence from the agreement and, therefore, provides no basis for finding the award deficient.

      For the foregoing reasons, we deny the exception. [n9] 

C.     The award draws its essence from the parties' agreement.

      For an award to be deficient as failing to draw its essence from the 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 purposes of the 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. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it was the arbitrator's interpretation for which the parties bargained. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 56 FLRA 249, 251 (2000) (citing Dep't of Health and Human Servs., Soc. Sec. Admin., 32 FLRA 79, 88 (1988)).

      The Agency argues that, under Article 10-5, only notice of -- not bargaining over -- holiday shift changes is required. This argument was also made to, and rejected by, the Arbitrator. In particular, the Arbitrator noted that provisions requiring notice of changes in holiday schedules had been included in the parties' agreement for "many years, during which the parties have regularly engaged in impact and implementation bargaining as to changes" in those schedules. Award at 12. The Arbitrator found "no evidence" that in adopting Article 10-5, which increased the 7 days' notice required in the previous agreement to 30 days' notice, the parties intended to alter the practice of bargaining over impact and implementation of the changes. Id.

      The Agency's argument that the notice of schedule changes required by Article 10-5 is "specific" and constitutes a substitute for impact and implementation bargaining may reflect a reasonable interpretation of the parties' agreement. Exceptions at 12. However, it does not establish that the Arbitrator's contrary interpretation is irrational, implausible, or otherwise deficient. Further, although Articles 10-5 and 23-1 both address hours of work, the Arbitrator found that Article 23-1 addresses the scope of the Agency's bargaining obligation, while Article 10-5 does not. Thus, Article 23-1 -- not Article 10-5 -- is more "specific" with respect to the issue before the Arbitrator. [n10]  [ v57 p938 ]

      Applying the deferential "essence" standard set forth above, we conclude that the Agency has not demonstrated that the award is deficient. Accordingly, we deny the exception.

D.     The award is not based on a nonfact.

      The Arbitrator found that:

[The Union] did not advance a naked demand that the new schedule be rescinded. It merely included such a request among various proposed modifications it wished to discuss. I do not find such a passing request that the [Agency] "rescind" the schedule to be persuasive proof that the Union was trying to negotiate beyond the scope of "impact and implementation bargaining" . . . .

Award at 12. The Agency disputes the Arbitrator's finding, claiming that the Arbitrator ignored record evidence that the Union intended to prevent the Agency from making the disputed changes. According to the Agency, "[t]he Union's proposal had nothing to do with impact and implementation bargaining . . . ." Exceptions at 13.

      We construe the Agency's exception, particularly its emphasis on the Arbitrator's asserted failure to properly interpret evidence, as a claim that the award is based on a nonfact. To establish that an award is deficient on this ground, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 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 had disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      Because the parties disputed before the Arbitrator whether the Union attempted to negotiate over the substance of the change, the Agency's argument does not establish that the award is deficient. [n11]  Accordingly, we deny the exception.

V.     Decision

      The Agency's exceptions are denied.


File 1: Authority's Decision in 57 FLRA No. 199
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 199 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 199 - Authority's Decision

   Article 10-5, "Shift Change Notification," provides, in pertinent part: "Technicians will be notified no less tha[n] two weeks in advance of a shift change. Holidays or special event related work schedules will be confirmed thirty (30) calendar days in advance." Award at 2.


Footnote # 3 for 57 FLRA No. 199 - Authority's Decision

   Article 23-1, "Appropriate Matters for Impact and Implementation Bargaining," provides, in pertinent part: "Management and the labor organization . . . shall meet when appropriate and confer in good faith as to the source, substance and implementation of changes to . . . hours of work. . . ." Award at 4.


Footnote # 4 for 57 FLRA No. 199 - Authority's Decision

   Article 1-11, "Contract Negotiations," provides, in pertinent part: "Nothing in this agreement shall impose upon the employer the obligation to negotiate . . . the numbers, types and grades of positions of employees assigned to an organizational unit, work project or tour of duty[.]" Award at 2.


Footnote # 5 for 57 FLRA No. 199 - Authority's Decision

   "Tour of duty" is defined in 5 C.F.R. § 610.102 as "the hours of a day . . . and the days of an administrative workweek . . . that constitute an employee's regularly scheduled administrative workweek."


Footnote # 6 for 57 FLRA No. 199 - Authority's Decision

   We construe the Agency's objection to the Arbitrator's refusal to address the Agency's "covered by" argument as claims that the award is contrary to law and, in the alternative, that the Arbitrator exceeded his authority.


Footnote # 7 for 57 FLRA No. 199 - Authority's Decision

   Under the first prong of the "covered by" doctrine, the Authority examines whether the subject matter of the change is expressly contained in the agreement; under the second prong, the Authority determines whether the subject is inseparably bound up with, and plainly an aspect of, a subject covered by the contract. United States Dep't of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 47 FLRA 1004, 1018 (1993).


Footnote # 8 for 57 FLRA No. 199 - Authority's Decision

   The Authority has held that, where a contract provision restates a provision of the Statute, the Authority "must exercise care" to ensure that an arbitral interpretation of the contract provision is consistent with Authority interpretation of the statutory provision. See Gen. Servs. Admin., Region 9, Los Angeles, Cal., 56 FLRA 683, 685 (2000). Here, the Agency does not allege, and there is no basis for concluding, that either Article 23-1 (relied on by the Union to establish the bargaining obligation) or Article 10-5 (relied on by the Agency for its "covered by" argument) restates a provision of the Statute.


Footnote # 9 for 57 FLRA No. 199 - Authority's Decision

   Insofar as the Agency claims that the Arbitrator exceeded his authority by failing to resolve the "covered by" issue, we reject the claim for the same reasons.


Footnote # 10 for 57 FLRA No. 199 - Authority's Decision

   The Agency neither asserts nor establishes that, if Article 10-5 were more "specific," then the Arbitrator was required to adopt its interpretation of the agreement.


Footnote # 11 for 57 FLRA No. 199 - Authority's Decision

   We note that the Arbitrator found the Agency violated the parties' agreement only to the extent that it failed to engage in impact and implementation bargaining, and the Arbitrator's prospective remedy directs bargaining over the impact and impleme