United States, Department of the Army, Corps of Engineers, Northwestern Division, Portland District, Portland, Oregon (Agency) and United Power Trades Organization (Union)

[ v59 p86 ]

59 FLRA No. 16

UNITED STATES
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
NORTHWESTERN DIVISION
PORTLAND DISTRICT
PORTLAND, OREGON
(Agency)

and

UNITED POWER
TRADES ORGANIZATION
(Union)

0-AR-3601

_____

DECISION

August 29, 2003

_____

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 Elinor S. Nelson 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 the parties' agreement by failing to fill two positions. As a remedy, the Arbitrator ordered the Agency to fill the positions. For the reasons that follow, we conclude that the Agency has not established that the award is deficient, and we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency had violated and repudiated the parties' agreement by not hiring a Regional Director and a Training Officer. The grievance was submitted to arbitration, where the Arbitrator framed the issues as follows:

1. Did the Agency violate [the agreement] when it failed to fill the position entitled "North Pacific Regional Educational Director/Trainer"? If so, what is the appropriate remedy?
2. Did the Agency violate [the agreement] when it failed to fill a position entitled "Individual Training Officer"? If so, what is the appropriate remedy?
3. Did the Agency repudiate and[,] therefore, violate the [a]greement? If so, what is the appropriate remedy?

Award at 3.

      The Arbitrator found that Clauses IV and V of the parties' agreement "contractually obligate[]" the Agency to fill the Regional Director and Training Officer positions and to assign "specific job responsibilities" to them. [n2]  Id. at 10. The Arbitrator concluded that the Agency had not fulfilled these obligations. In reaching this conclusion, the Arbitrator rejected the Agency's claims that a Regional Director was not needed and that the Training Officer duties were being performed by the Assistant Chief of Operations. According to the Arbitrator, the Agency "agreed to the clear, unambiguous, binding contract language" of Clauses IV and V, which he found does not "abrogate[] the Agency's statutory right to assign work . . . ." Id. at 12-13.

      According to the Arbitrator, the Assistant Chief's comments that he "did not feel bound by" the parties' agreement and that the agreement "has been ignored," id. at 5, demonstrate "the Agency's intent not to comply with the [a]greement." Id. at 13-14. Based on those comments, "coupled with the Agency's violations of the [a]greement," the Arbitrator concluded that the Agency repudiated the parties' agreement. Id. at 14.

      Accordingly, the Arbitrator sustained the grievance and ordered the Agency to fill the Regional Director and Training Officer positions in accordance with Clauses IV and V of the parties' agreement.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency does not except to the Arbitrator's finding that it repudiated the parties' agreement. However, the Agency argues that the award is deficient because it enforces Clauses IV and V of the parties' agreement, which the Agency claims are "actually unenforceable." Exceptions at 7. Specifically, the Agency [ v59 p87 ] claims that the provisions violate its rights to determine its organization, make selections, and assign work.

      The Agency asserts that the award requires it to "create and fill two specific positions" that it does not need, "assign specific enumerated duties" to both positions, and "observe a qualifications requirement" for one of the positions, all of which "fall squarely within management's reserved right to determine its organization." Id. at 6-7. The Agency further asserts that the award requires it to hire "a professional educator" for the Regional Director position, and, by doing so, violates management's right to make selections, which the Agency claims includes the right to determine the selective factors for a position. Id. at 9. Finally, the Agency asserts that the award violates its right to assign work by requiring it to assign specific tasks to the two disputed positions and precluding it from assigning those tasks to other employees.

      According to the Agency, the award does not satisfy prong I of the Authority's BEP framework because the award does not enforce a contract provision that was negotiated under § 7106(b) of the Statute. In this connection, the Agency asserts that, although Clauses IV and V "may appear to implicate the `numbers, types, and grades of employees' assigned to an organizational subdivision or work project" under § 7106(b)(1) of the Statute, they "actually address reserved rights under § 7106(a)" of the Statute. Id. at 13. In support of this argument, the Agency quotes Authority precedent finding that a proposal does not affect the numbers, types, or grades of employees or positions assigned to an organizational subdivision when the "dominant requirement" of the proposal concerns "`the creation of organizational subdivisions.'" Id. at 14 (quoting Int'l Fed'n of Prof'l and Technical Eng'rs, Local 49, 52 FLRA 813, 820 (1996) (Member Armendariz concurring)).

      The Agency further argues that Clauses IV and V are not negotiable procedures under § 7106(b)(2) of the Statute because they concern the substance of management's decision to assign training functions rather than the procedures to be followed in assigning those functions. Finally, the Agency argues that Clauses IV and V are not appropriate arrangements under § 7106(b)(3) of the Statute because they do not "ameliorate any adverse effects on employees flowing from the exercise of a management right." Id. at 18.

B.      Union's Opposition

      According to the Union, Clauses IV and V do not violate any of the management rights raised by the Agency. The Union asserts that, by restricting "who can be assigned to do specific types of work[,]" the provisions ensure that employees receive the proper "guidance and resources" necessary to perform their "dangerous field of work" safely. Opposition at 3-4. Therefore, according to the Union, Clauses IV and V ameliorate adverse effects flowing from the exercise of management's right to assign work and, as such, constitute appropriate arrangements under § 7106(b)(3) of the Statute.

      Alternatively, the Union asserts that Clauses IV and V are enforceable, notwithstanding their effect on management's § 7106(a) rights, because they concern the "`numbers, types and grades' of employees" within the meaning of § 7106(b)(1) of the Statute. Id. at 4. According to the Union, the Agency has already placed Training Officers in two of its three districts, and therefore, requiring the Agency to place a Training Officer in its third district "does no more than affect the numbers and types of employees who work for the Agency." Id. at 5. Based on the foregoing, the Union disputes the Agency's claim that the award requires it to change its organizational structure.

      Finally, the Union adds that the award is consistent with "[g]overnment-wide regulations [that] obligate all federal agencies to provide for the safety and health of their employees[,]" to include ensuring that sufficient personnel are available therefor. Id. at 3 (quoting 29 C.F.R. § 1960.6(c)).

IV.      The Award Is Not Contrary To Law

      When a party argues that an arbitrator's award is contrary to law, the Authority reviews the questions of law raised by the award and the party's exceptions 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.

      When determining whether an award violates management's rights under § 7106 of the Statute, the Authority first looks to see whether the award affects a management right under § 7106(a) of the Statute. If so, then the Authority applies the framework established in [ v59 p88 ] United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP) to determine whether the award is deficient. Under prong I of that framework, the Authority examines whether the award provides a remedy for the violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. If so, then the Authority determines, under prong II, whether the remedy awarded reflects a reconstruction of what management would have done had it not violated the law or contract provision at issue. If the remedy reflects such a reconstruction, then the Authority will conclude that the award does not violate a management right. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. See United States Dep't of VA., Med. and Reg'l Ctr., Togus, Me., 55 FLRA 1189, 1195 (1999).

      The Arbitrator found that the Agency violated Clauses IV and V of the parties' agreement. In order to apply the BEP analysis, it is essential that we examine the contract provisions that the Arbitrator determined were violated. See United States DOL, Wash., D.C., 55 FLRA 1019, 1022 (1999) (citing BEP, 53 FLRA at 153) (DOL). In this connection, § 2425.2 of the Authority's Regulations provides that an exception must be a self-contained document "which sets forth in full . . . [e]vidence or rulings bearing on the issues before the Authority . . . and legible copies of other pertinent documents." 5 C.F.R. § 2425.2(b) and (d). Providing a complete copy of challenged contract provisions for the Authority to review becomes particularly critical where, as here, both sides present compelling arguments regarding the meaning of those provisions.

      The Agency did not provide the Authority with a copy of Clauses IV and V of the parties' agreement. Moreover, the award contains only excerpts from Clauses IV and V, and the Agency's exceptions quote only parts of the provisions. By neither providing a legible copy of the provisions, nor setting forth in full the specific language of those provisions, the Agency has failed to establish an evidentiary record sufficient to prove its assertions and, as a result, has precluded its ability to sustain its burden of persuasion. See DOL, 55 FLRA at 1022; see also AFGE, Local 1151, 54 FLRA 20, 25 (1998) (denying union's exception because union failed to provide the agency regulation that the agency allegedly violated).

V.      Decision <