United States, Department of Commerce, National Weather Service, National Oceanic and Atmospheric Administration (Agency) and National Weather Service Employees Organization (Union)

[ v58 p490 ]

58 FLRA No. 121

UNITED STATES
DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
(Agency)

and

NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION
(Union)

0-AR-3613

______

DECISION

April 25, 2003

______

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

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Robert T. Simmelkjaer 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 Agency violated an agreement between the parties to temporarily promote employees to a vacant higher-graded position and ordered retroactive promotions with back pay and interest. For the following reasons, we find that the Agency has failed to demonstrate that the award is deficient and deny its exceptions.

II.     Background and Arbitrator's Award

A.     Background

      The Birmingham, Alabama office of the National Weather Service (the Agency), the facility involved in this case, operates 24 hours a day, 7 days a week, and is staffed by three shifts each day. As relevant herein, each shift is usually staffed with a GS-13 Senior Forecaster, and a GS-12 General Forecaster. The Senior Forecaster is responsible for the work product produced by the shift and has authority to recall additional staff to deal with weather emergencies and to order equipment repairs needed for the work to be done. When no Senior Forecaster is available for a shift, the most senior General Forecaster assigned to the shift has the responsibility and authority of the Senior Forecaster. The Agency and the Union had agreed that each Agency office would be staffed with a minimum of five Senior Forecasters so that each of the 21 shifts scheduled for each week would have a Senior Forecaster assigned to the shift.

      Up until November 2001, the Birmingham office was staffed with 5 Senior Forecasters. Late in that month, one of the Senior Forecasters retired. The Agency immediately advertised the vacant position, processed the applications, considered the candidates, and, in the middle of January 2002, selected one of the General Forecasters on the office staff for the vacant Senior Forecaster position. Between the retirement of the Senior Forecaster and the selection of the replacement, [n1]  the Agency assigned several different General Forecasters to perform the work of the vacant Senior Forecaster position on 36 of the 42 shifts that the retired employee would otherwise have worked. [n2] 

      The Union filed a grievance alleging that the Agency violated Article 16, Sections 1 and 2 of the parties' collective bargaining agreement, and a separate May 2001 "agreement," by failing to temporarily promote each of the General Forecasters who performed the work of the vacant Senior Forecaster position on the 36 shifts in question. [n3]  The grievance was not resolved and the Union submitted the case to arbitration.

III.     Arbitrator's Award

      The issue, as proposed by the Union, and framed by the Arbitrator, was stated as follows:

Did the [Agency] violate Article 16, section 1 and/or the agreement of May, 2001 to apply Article 16 to positions vacant for 20 days or [ v58 p491 ] more, when it failed to make a temporary promotion to fill the Senior Forecaster vacancy at the Birmingham, Alabama Forecast Office between November 6, 2001 and January 13, 2002?

      If so, what should the remedy be?

Award at 3.

1.     Article 16, Section 1

      The Arbitrator found that Article 16, Section 1 of the parties' master collective bargaining agreement (master agreement) "requires that at least one employee, rather than several employees with fragmented service, must meet the 20-day threshold in order to be eligible for the temporary promotion." Award at 16. The Arbitrator also found that the Union produced evidence that "five different GS-12 General Forecasters" were assigned to the vacant Senior Forecaster position on 36 different shifts. Id. at 17. The Arbitrator concluded, however, that none of the five General Forecasters warranted a temporary promotion under Article 16, Section 1 because that provision refers to the assignment of "an employee" for 20 consecutive days or more and none of them were assigned to that position for the requisite 20 consecutive days. Id. at 18.

2.     The May 2001 "Side Agreement"

      As to the alternate ground advanced by the Union for granting the five General Forecasters temporary promotions, the Arbitrator found that the "net effect" of correspondence between a management official and a union official in May 2001 "was to establish a side agreement de facto amending Article 16 wherein the Agency obligated itself to make a temporary promotion wherever a higher[-]graded position was vacant for 20 days or more." Award at 24. Specifically, in this regard, the Arbitrator noted that, when the Agency notified the Union of its intent to allow a selecting official a full 60 days, rather than 30 days, to select a candidate to fill a vacant position, the Union expressed concern about the effect of such a lengthy vacancy on unit employees. According to the Arbitrator, the Union proposed in response that, in order to alleviate the adverse impact of the additional work that would result from a vacant position, when a selection is not made within 30 days, the Agency would temporarily promote a qualified employee to fill the position.

      The Arbitrator further noted that the Agency responded to the Union's proposal, declaring it nonnegotiable and stating that the matter was covered by the contract. The Arbitrator indicated that the Agency also stated Article 16 "would be more appealing to the employee than [the] proposal, since the Agency would be required to act on a 20 day period rather than a 30 day time period." Id. at 21 (quoting Agency e-mail dated May 10, 2001 (May 10 correspondence)). The Union responded that it "agreed" to the Agency's statement and withdrew its proposal. Id.

      The Arbitrator found that the Agency's May 10 correspondence constituted a counterproposal to the Union's proposal. In particular, he found that when the Union, in response to that correspondence, agreed with the Agency, the Union was agreeing to withdraw its proposal based on the Agency's "representation that Article 16 already required the Agency to make a temporary promotion within 20 days," because "a proposal which sought to obligate such a temporary promotion within 30 days would be unnecessary." Id. at 26. Specifically, the Arbitrator found that, through its counterproposal, the Agency obligated itself "to make a temporary promotion whenever a vacancy existed for twenty days." Id. at 27. According to the Arbitrator, the grievance, under this "side agreement," concerns "requiring management to make a temporary promotion of an employee(s) who has already been assigned to Senior Forecaster duties." Id. at 28. That is, the Arbitrator found that the grievance did not concern "the Agency's decision not to back-fill" the vacant Senior Forecaster position, but rather the failure to do so through temporary promotion of those who were assigned to do the work of that position. Id. at 29.

      The Arbitrator granted the grievance and awarded "each of the five General Forecasters who performed Senior Forecaster work" between November 6, 2001 and January 13, 2002, "a retroactive temporary promotion (with back pay) for the duration of their individual assignments." Id. at 30. The Arbitrator's back pay award included interest. The Arbitrator also noted that the temporary promotions were "contingent upon" the General Forecasters meeting "`all Federal and position requirements' . . . for promotion . . . ." Id.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the Arbitrator's award is based on a nonfact because it is based on words that do not appear in the May 10 correspondence which the Arbitrator found to establish the May 2001 side agreement. Specifically, according to the Agency, the Arbitrator was able to reach the conclusion that such an agreement existed "only by adding words" to that correspondence that were not in the correspondence. Exceptions [ v58 p492 ] at 15. The Agency also argues that it did not dispute "the actual words" of the correspondence and contends, therefore, that it is not arguing that the award is deficient on the basis of factual matters that were disputed before the Arbitrator. Id. The Agency maintains that "the Arbitrator ruled in favor of the Union only through his own misapprehension" of the management official's correspondence and that "but for that misapprehension, no such conclusion could have been drawn and no award made to the Union." Id. at 16.

      The Agency advances two arguments in support of its claim that the Arbitrator's award exceeds his authority. First, the Agency maintains that, based on his misapprehension of the parties' correspondence, the Arbitrator modified the parties' collective bargaining agreement "where no such intent was expressed by the parties to the agreement." Exceptions at 17. Thus, the Agency argues, the Arbitrator exceeded his authority by reaching beyond the four corners of the collective bargaining agreement. Stated differently, the Agency claims that the Arbitrator disregarded contractual limitations on his authority. [n4] 

      The Agency also claims, for the same reasons, that the award does not draw its essence from the parties' collective bargaining agreement or from the parties' correspondence. Specifically, the Agency argues that the Arbitrator's finding that a side agreement exists "cannot in any rational way be derived from the agreement or from the plain words" of the parties' correspondence. Id. at 19. Rather, according to the Agency, the Arbitrator reached that finding because he supplied "additional words" to that correspondence. Id. at 18.

      The second basis on which the Agency claims that the Arbitrator exceeded his authority is "by awarding five unnamed grievants relief." Id. at 20. In this regard, the Agency argues that grievances that are not institutional in nature must, under the collective bargaining agreement, identify the aggrieved employees by name. The Agency maintains that, given the individual nature of the grievance, the Arbitrator's award to unnamed grievants exceeded his authority under the collective bargaining agreement.

      The Agency also contends that the award provides relief to employees who did not file a grievance and argues that the "five unnamed grievants cannot rightfully recover under the Arbitrator's award." Id. at 21. The Agency argues that the Arbitrator's finding that management should have notified the Union of its intent to assign General Forecasters to perform the work of the vacant Senior Forecaster position does not absolve "the Union from following the contract and identifying [a]ffected employees." Id.

B.      Union's Opposition

      The Union contends that "[w]hether parties have reached agreement on a memorandum of understanding is a question of fact." Opposition at 9 (citing IRS, N. Florida Dist., Tampa Field Br., Tampa, Fla., 55 FLRA 222 (1999), which cited Bobbie Brooks, Inc. v. International Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987)). The Union asserts that the issue of whether the parties' correspondence established a side agreement was disputed at arbitration and, thus, cannot be the basis for finding the Arbitrator's award deficient. Moreover, the Union maintains that "[t]o the extent that the [A]gency claims that the Arbitrator has misinterpreted this side agreement, the Arbitrator's interpretation of the agreement cannot be set aside as a nonfact." Id. at 10.

      As to the Agency's first exceeded authority exception, the Union argues that collective bargaining agreements may include written side agreements and oral understandings entered into by the parties. In addition, the Union notes that the parties' collective bargaining agreement in this case provides that "agreements reached by the parties as a result of `impact and implementation' negotiations at the national level constitute binding agreements that amend the basic agreement, even if their terms conflict with the basic agreement." Opposition at 13. The Union states that the side agreement in this case resulted from impact and implementation bargaining between the Union President and a management official at the national level.

      With respect to the second exceeded authority exception, the Union notes that the Agency had originally challenged the arbitrability of the grievance because the grievants were not named, but withdrew that objection at the arbitration hearing. The Union contends that the Agency is now barred from resurrecting its earlier arbitrability claim as a basis for an exceeded authority exception.

      The Union maintains that "an arbitrator exceeds his authority when he awards relief to employees who are not named in the grievance . . . only when the parties stipulate to an issue which limits the arbitrator's authority to resolving the propriety of the agency's actions toward a particular employee." Id. at 15 (emphasis in original). The Union contends that, in this case, the parties [ v58 p493 ] stipulated to a broad statement of the issue of the relief and thereby gave the Arbitrator broad authority "to fashion a remedy if he found that an underlying contractual violation took place." Id. at 16. Further, the Union contends that "an arbitrator is not required to identify specific employees in order to support a back pay remedy." Id. at 17 (citing NAGE, Local R4-45, 55 FLRA 695, 698 (1999)). According to the Union, "the identity of the[] [General Forecasters] and the duration they performed the duties of the higher[-]graded position were not disputed at the hearing and are clearly identified in the record . . . ." Id.

IV.     Analysis and Conclusions

A.     The Award is not Deficient on the Ground that it is Based on a Nonfact

      To establish that an award is based on a nonfact, 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 AFB, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged as a nonfact." United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 57 FLRA 489, 493 (2001).

      While the Arbitrator clearly had to interpret the parties' May 10 correspondence in order to ascertain their intent, his ultimate finding was, as a matter of fact, that an agreement existed between the parties as a result of that correspondence. [n5]  Moreover, in summarizing the Agency's position before him, the Arbitrator stated that the Agency argued that "the `alleged side agreement did not exist[.]'" Award at 23. Consequently, as the Union contends, the parties disputed before the Arbitrator, as a factual matter, the existence of the May 2001 side agreement. For this reason, consistent with the Authority precedent cited above, the Agency's exception does not provide a basis for finding the award deficient under § 7122(a)(2) of the Statute.

      Accordingly, we deny the Agency's exception.

B.     The Award is not Deficient on the Ground that the Arbitrator Exceeded His Authority or on the Ground that the Award Fails to Draw its Essence from the Parties' Agreement.

      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 AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). When an exception concerns whether the remedy awarded by the arbitrator exceeded the arbitrator's authority, the Authority grants the arbitrator broad discretion to fashion a remedy that the arbitrator considers appropriate. See United States Dep't of Defense Dependents Schools, 49 FLRA 658, 663 (1994).

1.     The Arbitrator did not Err in Finding that the Parties Agreed to the May 2001 Side Agreement

      The Agency's first argument in support of its exceeded authority exception appears to be premised on the conclusion that the Arbitrator erred in finding that the parties agreed to the May 2001 side agreement. The Agency's contention is that the Arbitrator exceeded his authority by changing or varying the terms of the parties' master agreement. [n6]  However, the Agency has provided no support for that contention. Specifically, in this regard, the issue, as framed by the Arbitrator, included the question of whether the Agency violated the May 2001 side agreement. The Arbitrator considered the Agency's arguments disputing the existence of that side agreement and found against the Agency. Moreover, as the Union points out, the master agreement in fact allows the parties, at the national level, to reach such agreements, and the May 2001 correspondence involved a management representative at the national level and the Union President.

      With respect to the Agency's recasting of this argument as an essence exception, the Agency has failed [ v58 p494 ] to demonstrate that the award is deficient on essence grounds. Specifically, the Agency has provided no support for its argument that the Arbitrator's finding that a side agreement existed between the parties, or his interpretation of that agreement, is irrational, implausible, or unconnected to the wording of Article 16 or the parties' correspondence. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 56 FLRA 498, 501 (2000).

2.     The Arbitrator did not Err in Formulating the Remedy

      The Agency's second contention is that the remedy is too broad. However, while the Authority has found awards deficient on exceeded authority grounds where the arbitrator has extended relief to employees not covered by the grievance, see, e.g., United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker AFB, Okla., 42 FLRA 680, 685 (1991), those cases involved grievances pertaining to specified employees. The grievance in this case, as framed by the Arbitrator, covered all employees who had been denied temporary promotions for performing the work of the vacant Senior Forecaster position. The remedy awarded by the Arbitrator applied only to those employees. [n7]  The Agency has failed to demonstrate that the award applies to any other employees and, thus, has failed to demonstrate that the award is deficient as in excess of the Arbitrator's authority. See, e.g., United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1062 n.7 (2001).

      Accordingly, we deny the Agency's exception.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

1. Article 16, Sections 1 and 2 provide as follows:

ARTICLE 16
DETAILS/TEMPORARY PROMOTIONS

SECTION 1. Temporary promotions will be made when the following requirements are met:

      A. The actual time to perform the higher graded position to which an employee is assigned or detailed to is twenty (20) consecutive work days or more.

      B. Performance of the higher grade duties is clearly not a factor that was taken into account in the classification of the employee's present position.

      C. The employee meets all Federal and position requirements.

      SECTION 2. An employee who is assigned to a position of higher grade duties for twenty (20) consecutive work days or more will be temporarily promoted and receive the rate of pay for the position to which he/she has been assigned for the entire period of that assignment.

2. Article 11 of the parties' collective bargaining agreement provides, in relevant part, as follows:

SECTION 7.

      A. The arbitrator shall limit his/her decision strictly to the application and interpretation of the provisions of this Agreement and shall be without power or authority to make any decisions which:

1. Are contrary to or inconsistent with, or modifying, adding, deleting, varying, in any way, the terms of this Agreement or of applicable law, rules, or regulations governing the Federal sector.

3. Article 10, Section 9.B. of the parties' collective bargaining agreement provides, in relevant part, as follows:

SECTION 9.      UNION/MANAGEMENT
GRIEVANCE PROCEDURE

      B. Union grievances shall be initiated in writing by the NWSEO President, or designee and presented to the Assistant Administrator or designee within 30 calendar days of the receipt of the action or the condition giving rise to the grievance. Grievances filed by the Union which are not institutional in nature, i.e., there is a specific harm that can be identified to the union as an institution, must identify the aggrieved employees by name, location, harm incurred, violation alleged, date(s), time(s), place(s) of the action which gave rise to the grievance, and other pertinent information which can be evaluated in making a decision. . . .



Footnote # 1 for 58 FLRA No. 121 - Authority's Decision

   The record indicates that the employee selected for the vacant Senior Forecaster position did not immediately fill that position because he was detailed to another Agency office for approximately 4 additional weeks. It does not appear that the dispute in this case covers those 4 weeks.


Footnote # 2 for 58 FLRA No. 121 - Authority's Decision

   The Union states that 5 different General Forecasters were assigned, but provided a list reflecting a sixth General Forecaster who worked 1 shift. Opposition at 7. The Union does not explain the inconsistency between its claim of 5 General Forecasters who worked the shifts of the vacant position and its list including a sixth General Forecaster who worked a shift. The Union also states that no one General Forecaster worked the shifts of the vacant position for 20 consecutive days. Id.


Footnote # 3 for 58 FLRA No. 121 - Authority's Decision

   The text of Article 16, Sections 1 and 2 is set forth in the Appendix to this decision.


Footnote # 4 for 58 FLRA No. 121 - Authority's Decision

   The Agency cites Article 11 of the parties' collective bargaining agreement, the text of which is set forth in the Appendix to this decision. Exceptions at 19.


Footnote # 5 for 58 FLRA No. 121 - Authority's Decision

   The Agency states that the parties did not intend their correspondence to create an agreement because there is no evidence that the alleged side agreement was ever reduced to writing or submitted for Agency-head review pursuant to § 7114(c) of the Statute. According to the Agency, the absence of such evidence shows that there never was the requisite "meeting of the minds." Exceptions at 18 n.18. However, there is no evidence that this argument was raised before the Arbitrator. Consistent with § 2429.5 of the Authority's Regulations, we decline to address this argument.