Washington Plate Printers Union, Local 2, IPPDSPMEU and Graphic Communications, International Union, Local 4B, AFL-CIO (Unions) and United States, Department of the Treasury, Bureau of Engraving and Printing (Agency)

[ v59 p417 ]

59 FLRA No. 61

WASHINGTON PLATE PRINTERS UNION
LOCAL 2, IPPDSPMEU AND
GRAPHIC COMMUNICATIONS
INTERNATIONAL UNION,
LOCAL 4B, AFL-CIO
(Unions)

and

UNITED STATES
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING AND PRINTING
(Agency)

0-AR-3618

_____

DECISION

October 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 Joseph M. Sharnoff filed by the Unions [n2]  and the Agency under § 122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Unions and the Agency filed oppositions to each other's exceptions.

      For the reasons that follow, we grant the Agency's exceeds authority exception and set aside the remedy, and deny the other exceptions.

II.     Background and Arbitrator's Award

      The parties had a longstanding practice of a paid lunch period that was eventually incorporated into the parties' 1975 agreements and a memorandum of understanding, dated May 28, 1988. Subsequently, the matter was put into a side letter as a past practice, rather than as an agreement provision. As relevant herein, the parties had also negotiated memoranda of agreement (MOA) that sought increases in productivity by having employees relinquish two paid break periods each day.

      On March 29, 2002, the Agency informed the Unions that, effective the first pay period in October, 2002, the Agency would discontinue the paid lunch period for bargaining unit employees. The Unions filed a grievance over the announced change and when the grievance was not resolved, the Unions submitted it to arbitration. The parties did not agree on the issues and the Arbitrator framed them as follows:

Did the [Agency] violate the [p]arties' 1975 [a]greement, as modified and amended, or applicable law, rule or regulation, by its announced decision to eliminate the 30-minute paid lunch practice and, if so, what is the appropriate remedy?

Award at 2.

      The Arbitrator noted that the parties had negotiated memoranda of agreement regarding items, such as the paid lunch period, and later each entered into a side agreement that made such items a past practice. The Arbitrator also found that the parties each negotiated an MOA in 1998 that established a method to change past practices following a procedure of notice and an opportunity to bargain the impact and implementation of the changes. [n3]  According to the Arbitrator, the parties' MOAs did not define the term "statutory process" or explain the meaning of "bargaining through completion." Award at 44. The Arbitrator determined that the terms refer to impact and implementation bargaining.

      The Arbitrator concluded that the elimination of the paid lunch period did not conflict with the provisions in the parties' agreements on hours of work and basic workweek. According to the Arbitrator, the agreements provide that the basic workweek shall consist of five 8-hour days. The Arbitrator noted that there had been an historic basis for having the half-hour paid lunch period because of security, accountability, standby status, and other reasons. However, the record revealed that many of those considerations had changed. In these circumstances, the Arbitrator determined that [ v59 p418 ] paying employees for 8 hours when they worked only 7 ½ hours was "unlawful." See id. at 47.

      Next, the Arbitrator examined whether the Agency's action violated applicable law, rule or regulation or other authority. The Arbitrator first determined that because the paid lunch period was no longer contained as a provision in an agreement or MOA, it only constituted a past practice. The parties had devised a method for giving notice and changing such practices and the Arbitrator concluded that the Agency had given appropriate notice to the Unions about the proposed change in paid lunch periods. The Arbitrator then concluded that the proposed change was consistent with law, specifically 5 U.S.C. § 6101, which addresses workweek and work schedules. Afer that, the Arbitrator concluded that the proposed change to the lunch periods was not inconsistent with, or precluded by, various Comptroller General decisions regarding paid lunches at the Agency.

      According to the Arbitrator, historically the Comptroller General had found that the paid lunch periods at the Bureau of Engraving and Printing were appropriate because of security and because the employees were on standby status during the entire period. However, the Arbitrator found that the parties stipulated that duties are no longer performed by these employees during their lunch periods, and the employees are not "on call" during their lunch periods. The Arbitrator also found that the record showed that security considerations had changed as a result of surveillance cameras and other security measures. The Arbitrator likewise discounted arguments in favor of paid lunch periods based on employee morale, the limited ability to leave the work place during lunch, and the soiling of clothing worn by the plate printers. For these reasons, the Arbitrator concluded that the circumstances in existence at the time of a 1946 Comptroller General's determination (which upheld the paid lunch periods) had changed significantly over fifty-plus years and no longer formed an appropriate basis for sustaining the practice of paid lunch periods under law.

      Consequently, the Arbitrator concluded that the Agency had the right to eliminate the illegal practice of paid lunch periods provided the Agency did not do so in a manner that revised the agreed-upon exchange of increased production in return for decreased break time and proportionally increased wages, which was the basis for the 1998 MOAs. According to the Arbitrator, he could not find that the Unions in any way agreed to give the Agency the right to change or eliminate the paid lunch practice in a manner that would change the agreed-upon equivalency of increased production/decreased break time for increased wages. The Arbitrator stated that, in his judgment, "a result which permitted the Agency to eliminate the paid lunch practice without adjusting the negotiated balance of reduced break time/increased production for an increase in wages, would be inequitable and contrary" to the basis used to reach agreement on the 1998 MOAs and would violate them. Award at 53.

      Accordingly, the Arbitrator directed the Agency to restore to the employees the break periods which were eliminated by agreement in the 1998 MOAs and/or otherwise adjust the work time so that the "`equivalency'" of increased production to proportionally increased wages is maintained. See id. Additionally, the Arbitrator noted that the Unions had not accepted the Agency's offer to negotiate over the impact and implementation of this change, because they wanted to challenge the Agency's right to eliminate the paid lunch period. The Arbitrator then directed the parties to conduct impact and implementation bargaining as a remedial means to the restoration of "`equivalency'" under the MOAs. Id. at 54.

III.     Positions of the Parties

A.     Unions' Exceptions

      The Unions claim that the award is contrary to law. [n4]  The Unions assert that the Arbitrator, as part of his award, ordered the Agency to restore the break periods previously abandoned as part of the agreement to increase productivity. The Unions claim that not only has the Agency not restored the break periods, but it also has changed starting and quitting times to avoid paying employees overtime. Additionally, the Unions argue that the parties' 1998 MOAs tied together mandatory subjects of bargaining (such as work hours and work shifts) with permissive subjects of bargaining (such as a standard 8-hour work day and 30-minute paid lunch period). According to the Unions, "[b]y virtue of this linkage, the [Agency] is obliged to adhere to its earlier exercises of discretionary authority embodied in the contract language and established work practices during the entire 5-year term of each agreement." Unions' Exceptions at 3. The Unions argue that once embodied into an agreement, these work practices involve a permissive subject of bargaining because they concern the methods and means of performing work within the meaning of § 7106(b)(1) of the Statute. [ v59 p419 ]

      In the alternative, the Unions contend that the agreement language and combined work practices constitute an appropriate arrangement within the meaning of § 7106(b)(3) because they mitigate the otherwise adverse effects of management's exercise of its right to assign rest breaks and meal periods in the unique operating environment that exists at the Agency. Id. at 4.

B.     Agency's Opposition

      The Agency disagrees with the Unions' exceptions and asserts that neither a dispute over compliance issues nor an allegation that the Agency failed to comply with the award provides grounds for filing exceptions to the Authority. According to the Agency, the Authority has consistently held that the unfair labor practice procedures of the Statute are the appropriate procedures for resolution of disputes concerning compliance with and enforcement of arbitration awards.

      The Agency contends that the practice of paying employees for 8 hours when they work only 7 ½ hours is contrary to law. According to the Agency, the paid lunch period practice was neither a permissive matter of bargaining, nor the result of an appropriate arrangement, because technological improvements and advances in security practices at the worksite have rendered it contrary to law. The Agency asserts that time set aside for a meal is compensable only if the employee performs substantial job-related duties during such period. The Agency stresses the Arbitrator's finding, as the parties stipulated, that once the employees leave for their meal, they perform no work during their meal period and are not subject to being called back.

      The Agency contends that because the paid lunch period is now contrary to law, it had no discretionary authority to bargain over the matter. Moreover, it could not have been a permissive matter of bargaining nor would it constitute an appropriate arrangement. See Agency Opposition at 6. The Agency argues that even if the practice had not been contrary to law, the Unions' arguments are irrelevant because the Arbitrator found that "`contrary to the Union[s'] position herein, the Agency has not sought to change an express contractual provision.'" Id. citing Award at 41. The Agency asserts that the Unions' arguments fail to provide a basis for filing exceptions.

C.     Agency's Exceptions

      The Agency contends that the Arbitrator exceeded his authority by directing the Agency to take certain interim measures to maintain the negotiated "`equivalency'" of increased production to proportionally increased wages, and to negotiate with the Unions regarding this and the impact and implementation of its action. Agency's Exceptions at 3. According to the Agency, the Arbitrator framed the issue himself and answered the question he framed by denying the Unions' grievance. The Agency contends that arbitrators must confine their decisions and possible remedies to those issues submitted to arbitration for resolution. Accordingly, because the Arbitrator denied the Unions' grievance, the Agency asserts that the Arbitrator was without any authority to subsequently direct remedial relief.

      Additionally, the Agency contends that the Arbitrator's award of remedial relief is inconsistent with his findings that employees were being paid for a duty-free lunch period, and contrary to applicable law authorizing an agency to terminate an illegal past practice without the need to bargain over the substantive decision to terminate the practice. According to the Agency, in such a situation, an agency fulfills its obligations under the Statute by providing the appropriate union(s) with notice and an opportunity to bargain over the impact and implementation of the announced change. The Agency asserts that its actions, in affording the Unions a 6-month period in which to request and conduct impact and implementation bargaining, complied with these requirements but the Unions chose to invoke the grievance/arbitration process instead of bargaining.

D.     Unions' Opposition [n5] 

      The Unions initially argue, as a threshold matter, that the Authority has long applied the same deferential standard of review that federal courts have used in reviewing arbitration awards in the private sector. The Unions argue that the Arbitrator's remedy is based on violations of the 1998 agreements and "mutually recognized and longstanding work practices." Unions' Opposition at 41. The Unions contend that the Arbitrator's findings and exercises of remedial authority are precisely what the parties bargained for in agreeing to submit contract disputes to binding arbitration. According to the Unions, the remedial relief does nothing more than provide status quo ante relief by reconstructing and reviving the working conditions that existed before the 1998 negotiations. The Unions assert that these exercises of remedial authority are soundly based on the evidence, contract language and governing law and are fully consistent with the broad authority conferred upon the Arbitrator by the parties and by law. [ v59 p420 ]

      The Unions assert that, in reviewing an arbitration award, the Authority has long adhered to the policy of upholding a remedial ruling absent a showing that the order is a "`patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Statute.'" Unions' Opposition at 38, quoting NTEU, NTEU Chapter 33, 44 FLRA 252, 276 (1992). In this case, the Unions contend that the Arbitrator exercised his broad authority by directing the Agency to restore to the employees the break periods which were eliminated by agreement in the 1998 MOAs and/or otherwise to adjust the work time so that the "`equivalency'" of increased production to proportionately increased wages is maintained. Id. at 39. The Unions also note that the Arbitrator directed the Agency to engage in impact and implementation bargaining over these matters.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU, Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.  [n6] 

      With regard to the Unions' claim that the Agency has failed to comply with the award, the Unions do not explain how the Agency's alleged failure to comply with the award renders the award contrary to law. Accordingly, that bare assertion does not provide a basis for finding the award deficient. See, e.g., AFGE, Local 1749, 58 FLRA 459, 460 n.3 (2003).

      With regard to the Unions' argument that the paid lunch practice was negotiated pursuant to § 7106(b)(1) or § 7106(b)(3) of the Statute, this argument -- even assuming that it is correct -- does not demonstrate that the award is contrary to law. In this connection, the Arbitrator found that the parties' MOAs permitted the Agency to change the practice, and the Unions do not argue that this finding fails to draw its essence from the MOAs. As the Arbitrator found that the Agency had a contractual entitlement to change the practice (and the Unions have not shown this finding to be deficient), the Agency was entitled to make the change without regard to whether the practice was negotiated pursuant to § 7106(b)(1) or (3) of the Statute. Thus, the Unions provide no basis for finding the award contrary to law.

      Accordingly, we deny the Unions' exception.

B.     The Arbitrator Exceeded His Authority by Issuing a Remedy after Finding No Violation

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      The Arbitrator framed the issue as whether the Agency violated the parties' agreement or applicable law when it announced its decision to eliminate the 30-minute paid lunch period. In resolving the case before him, the Arbitrator concluded that the Agency did not violate the agreement or applicable law, at which time the arbitration process should have ended. However, the Arbitrator then proceeded to order certain relief for the grievants. Permitting this arbitral remedy is at odds with established precedent.

The Authority has consistently held that arbitrators must confine their decisions and possible remedies to those issues submitted to arbitration for resolution and "must not dispense their own brand of industrial justice." Veterans Admin., 24 FLRA 447, 450 (1986) (VA) (citations omitted).
The Authority has previously held that an arbitrator exceeded his authority when he concluded that an agency did not violate the parties' agreement as alleged, but nevertheless, provided a remedy to the grievant. . . . The arbitrator concluded that the agency did not violate the parties' agreement when it terminated the grievant. Notwithstanding this finding, the arbitrator ordered that the grievant be informed of, and allowed to apply for, agency vacancies. See id. at 448-49. The Authority held that the arbitrator exceeded his authority by failing to confine his decision and any possible remedy to the issues submitted as he unambiguously framed them. [ v59 p421 ]

United States Dep't of the Navy, Naval Sea Logistics Ctr., Detachment Atl., Indian Head, Md., 57 FLRA 687, 688 (2002).

      Given the unambiguous issue framed here, and the Arbitrator's unequivocal finding that the Agency did not violate the agreement by its actions, the fashioning of any remedy is improper. That the Arbitrator has fashioned his "own brand of industrial justice" is further reflected by the Arbitrator's acknowledgment that the parties had expressly agreed to new procedures permitting the Agency to take the actions complained of here, with the Union having the concomitant right to "negotiate impact and implementation or to contest such proposed action." Award at 47. Here the Union chose to contest the action through the negotiated grievance procedure and then arbitration, rather than bargaining the impact and implementation of the change. Because the Agency did not violate the agreement, no remedy is warranted.

      Accordingly, we grant this exception and set aside the remedy imposed by the Arbitrator. [n7] 

V.     Decision

      The Agency's exception challenging the remedy is granted and the remedy is set aside. The other Unions' and Agency's exceptions are denied.


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree that the award is not contrary to law. However, for the following reasons, I disagree with the majority's determination that the Arbitrator exceeded his authority.

      The linchpin of the majority's decision finding that the Arbitrator exceeded his authority is the majority's finding that the Arbitrator concluded that the Agency "did not violate the agreement or applicable law" when it announced its decision to eliminate the practice of a 30-minute paid lunch period. Majority Opinion at 10. According to the majority, the Arbitrator made an "unequivocal finding that the Agency did not violate the agreement by its actions." Id. at 11.

      The majority is completely wrong. The Arbitrator clearly and unambiguously found exactly the opposite. Specifically, the Arbitrator found:

. . . the Agency has the right to eliminate that practice but only if it is accomplished in a manner which is consistent with the agreed-upon basis for the Parties' 1998 MOAs, in which there was an exchange of increased production time/decreased paid break time for increased wages based upon the circumstances in effect, including the paid lunch period practice. . . .
The Arbitrator finds, therefore, that to the extent that the Agency wishes to exercise its right . . . to eliminate the 30-minute paid lunch period, on the grounds that this paid meal practice is unlawful under applicable Federal law, the Agency may do so only in a manner which does not conflict with, or otherwise disturb, the agreed-upon basis for the 1998 MOAs in terms of the equivalency of increased production/decreased breaktime in exchange for proportionally increased wages.

Award at 35-36 (emphases added).

      Without a doubt, the Arbitrator found that the Agency was permitted to terminate the practice of paid lunch periods only in particular circumstances and only in a particular manner. This is not merely a matter of my interpretation of the award. The Arbitrator specifically stated as such: "the Agency's action would be violative of the Parties' respective 1998 MOAs if it eliminates the paid lunch period practice without taking certain measure to maintain the negotiated `equivalency' of increased production to proportionally increased wages." Id. at 54 (emphasis added). The majority's failure, or refusal, to acknowledge the Arbitrator's clear findings is baffling.

      The Arbitrator's determination, and the remedy awarded in connection with it, are directly responsive to the issue framed by the Arbitrator. In this connection, the Arbitrator framed the issue, in pertinent part, as whether the Agency violated the parties' agreement "by its announced decision to eliminate the 30-minute paid lunch practice and, if so, what is the appropriate remedy?" Id. at 2. As stated above, the Arbitrator found that the Agency's announced decision would violate the parties' agreement unless it were undertaken and implemented in a particular way and, as his remedy, he directed the parties to address implementing the Agency's decision.

      As the award is directly responsive to the issue before the Arbitrator, the Arbitrator did not exceed his authority. See, e.g., United States Dep't of HUD, 47 FLRA 1053, 1063 (1993); AFGE, Local 916, 46 FLRA 1316, 1319-20 (1993). Further, as the Arbitrator found that the Agency was permitted to discontinue the paid lunch period only in particular circumstances and only in a particular manner, the award does not conflict with Authority precedent concerning unilateral termination, and I would deny the Agency's exception alleging that the award is deficient on this ground. Accordingly, I dissent in part.



Footnote # 1 for 59 FLRA No. 61 - Authority's Decision

   Member Pope's opinion dissenting in part is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 61 - Authority's Decision

   The Washington Plate Printers Union, Local 2, IPPDSPMEU and the Graphic Communications Union, Local 4B, AFL-CIO, (the Unions) submitted a joint exception.


Footnote # 3 for 59 FLRA No. 61 - Authority's Decision

   Both MOAs contain the same language that provides that work practices shall remain in effect during the term of the agreement:

unless either party provides notice and bargains through completion. The practice(s) shall remain in effect until a decision is rendered consistent with the statutory process.

See Award at 36-37, 44.


Footnote # 4 for 59 FLRA No. 61 - Authority's Decision

   The Union references 5 U.S.C. § 5349, § 6601, and § 7117 concerning the Agency's discretionary authority but provides no explanation as to how these statutes were violated.


Footnote # 5 for 59 FLRA No. 61 - Authority's Decision

   We note that the Unions' argument that the award is contrary to law constitutes an untimely-filed exception which will not be considered. See Unions' Opposition at 12-38.


Footnote # 6 for 59 FLRA No. 61 - Authority's Decision

   See also United States Dep't of Commerce, Patent and Trademark Office, 52 FLRA 358, 367 (1996); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).


Footnote # 7 for 59 FLRA No. 61 - Authority's Decision

   In light of this determination, we need not discuss the contention that the award is contrary t