American Federation of Government Employees, Local 3911 (Union) and United States, Environmental Protection Agency, Region 2, New York, New York (Agency)

[ v59 p516 ]

59 FLRA No. 85

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3911
(Union)

and

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 2
NEW YORK, NEW YORK
(Agency)

0-AR-3713

_____

DECISION

December 15, 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 Janet Maleson Spencer filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the grievance was not arbitrable because it concerned two positions that are not subject to the parties' negotiated grievance procedure. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance in response to the Agency's temporary assignment of bargaining unit employees to two Section Chief positions outside the bargaining unit. The grievance alleged that the Agency breached the parties' agreement by not equitably rotating details to the Section Chief positions for the shortest time practicable and by granting preferences to some employees for the purpose of improving their chances of future promotions. The grievance was unresolved and was submitted to arbitration, where the parties stipulated the relevant issues to be: "Does Article 43, Section 3(F) ["§ 3(F)"] bar this grievance?" and "[D]oes . . . Article 31, Section 1 exclude details or temporary promotions to positions outside the bargaining unit from the grievance procedure?" [n2]  Award at 2.

      The Arbitrator found that the two Section Chief positions are not subject to the parties' negotiated grievance procedure because the positions are outside the bargaining unit and, therefore, are not subject to the procedures for rotating and assigning details contained in Article 31. The Arbitrator concluded that the filling of the Section Chief positions is excluded from the grievance procedure and barred from arbitration by virtue of § 3(F). Id. at 15.

      In addition, the Arbitrator rejected the Union's argument that the Agency violated 5 U.S.C. § 2302(b)(6) by not rotating employees to the two Section Chief positions, finding that the Article 3, Section 1 incorporation of law into the parties' agreement does not make every claimed violation of law arbitrable. [n3]  The Arbitrator also declined to address the Union's [ v59 p517 ] claim, under Article 8, Sections 1C and 1D, that the grievance was arbitrable, concluding that whether the Agency was required to rotate details to comply with those sections was an issue beyond her jurisdiction. [n4] 

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator's interpretation of § 3(F) is not plausible. Specifically, the Union contends that § 3(F) requires management decisions regarding details to be made "in accordance with [the parties'] agreement" and that the Arbitrator's conclusion that § 3(F) bars the grievance from arbitration is not in accordance with the parties' agreement because it renders Article 3, Section 1 and Article 8, Sections 1C and 1D of the parties' agreement unenforceable. Exceptions at 3. According to the Union, because Article 3, Section 1 incorporates federal law into the parties' agreement, § 3(F) cannot preclude the Union from grieving an alleged violation of § 2302(b)(6).

      In addition, the Union argues that the Arbitrator disregarded specific limitations on her authority by considering the Agency's argument that Article 31, Section 1 barred the grievance. The Union contends that Article 44, Section 3 prevents the Arbitrator from considering this argument since the Agency did not make it until the day of the hearing. [n5]  Id. at 2. For the same reason, the Union contends that the Arbitrator disregarded specific limitations on her authority by finding that details to the supervisory Section Chief positions are precluded from the grievance procedure by § 3(F).

B.     Agency's Opposition

      The Agency disputes the Union's contention that the award does not represent a plausible interpretation of the parties' agreement. Opposition at 6. The Agency further disputes the Union's assertion that the Arbitrator was precluded from considering whether Article 31, Section 1 barred the grievance. The Agency argues that, contrary to the Union's claim, it raised this issue in its response to the grievance. Moreover, the Agency claims that the filling of supervisory positions is a matter excluded from coverage by the negotiated grievance procedure and, consequently, is not an arbitrable matter.

IV.     Analysis and Conclusions

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

      We construe the Union's claim that the Arbitrator's award does not represent a plausible interpretation of the parties' agreement as a contention that the award fails to draw its essence from the agreement. In order for an award to be found 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 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. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union argues that the Arbitrator's interpretation of § 3(F) is implausible because it permits violations of 5 U.S.C. 2302(b)(6) and Article 8, Section 1C and 1D. The Union contends that any claim that the Agency is violating a law is arbitrable.

      In rejecting the Union's argument, the Arbitrator found it was necessary that she "have jurisdiction to inquire into whether the Agency violated Article 3, Section 1 by violating 5 U.S.C. § 2302(b)(6) in the same way [she] must have jurisdiction to inquire into whether the Agency violated some other provision of the Agreement". Award at 15. The Arbitrator concluded that the "mere fact that the parties have incorporated the law into their Agreement does not make every claimed violation of law arbitrable, irrespective of contractual limitations on the arbitrator's authority." Id. The Arbitrator also found that the Article 31 procedures for rotating details and assignments have no applicability to details to positions outside the bargaining unit and that such assignments are management decisions excluded from the grievance procedure by virtue of § 3(F). [n6]  [ v59 p518 ]

      It is undisputed that the Agency's assignment of unit employees to the supervisory positions constitutes a detail to positions not in the bargaining unit. In these circumstances, the Union has not demonstrated that the Arbitrator's interpretation of § 3(F) is unfounded, implausible, or irrational. [n7]  See United States Dep't of Def., Educ. Activity, Pensacola, Fla., 55 FLRA 1141, 1143 (1999). As such, the Union has not shown that the award fails to draw its essence from the parties' agreement. Accordingly, the exception is denied.

B.     The Arbitrator did not exceed her authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). The Authority will accord an arbitrator's interpretation of the parties' stipulation of the issue the same substantial deference accorded an arbitrator's interpretation and application of a collective bargaining agreement. United States Dep't of Veteran Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 494 (2001).

      The Union has not established that the Arbitrator disregarded specific limitations on her authority by considering the Agency's argument that Article 31, Section 1 barred the grievance. The parties' stipulated issues concerned whether § 3(F) barred the grievance and whether Article 31, Section 1 excluded details or temporary promotions to positions outside the bargaining unit from the grievance procedure. The Arbitrator resolved these issues by examining and interpreting the relevant provisions of the parties' agreement. The Arbitrator found that Article 31, Section 1 did not apply to the two Section Chief positions and that details were management decisions excluded from arbitration by § 3(F). In finding the grievance was not arbitrable, the Arbitrator's award is directly responsive to the stipulated issue. Accordingly, the Union has not demonstrated that the Arbitrator exceeded her authority.

      In addition, to the extent the Union claims the Arbitrator disregarded specific limitations on her authority by finding Article 31 does not apply to details to supervisory positions and that such details are excluded from the grievance procedure by §3(F), this is a substantive arbitrability issue and the Arbitrator based her determination of this issue on the parties' collective bargaining agreement. [n8]  In these circumstances, the Authority applies the deferential essence standard in reviewing the Arbitrator's determination. See, e.g., AFGE, Local 1749, 58 FLRA 459 (2003). As previously determined, the award draws its essence from the parties' agreement. Because the Union has not demonstrated that the Arbitrator exceeded her authority, the Union's exception provides no basis for finding the award deficient and we deny the exception.

V.     Decision

      We deny the Union's exceptions.


File 1: Authority's Decision in 59 FLRA No. 85
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 59 FLRA No. 85 - Authority's Decision

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


Footnote # 2 for 59 FLRA No. 85 - Authority's Decision

   Article 43, Section 3(F) states that "[i]n addition to any other exclusions contained in this agreement, the grievance procedure will not apply to [a] management decision to (or refrain from making or terminating a temporary promotion, detail or reassignment) in accordance with this agreement." Exceptions, Attachment 1 at 85 (Collective Bargaining Agreement).

Article 31 provides, in relevant part:

Section 1. "The provisions of this article apply solely to the assignment of bargaining unit employees within the unit. . . ."
Section 2. "Details shall be rotated equitably among those employees who have . . . the capacity and requisite skills for assuming the responsibilities of the assignment . . . ."
Section 8. "Management will keep details within the shortest practicable time so that they will not promote any compromise of the open-competitive principles of the Merit Promotion System." Exceptions, Attachment 1 at 65-66.

Footnote # 3 for 59 FLRA No. 85 - Authority's Decision

   Article 3, Section 1 of the parties' agreement states, in relevant part, "[i]n the administration of all matters covered by this Agreement, . . . Agency officials . . . shall be governed by applicable Federal [s]tatutes . . . ." Exceptions, Attachment 1 at 8.

5 U.S.C. § 2302(b)(6) states, in pertinent part, "[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment . . . for the purpose of improving or injuring the prospects of any particular person for employment[.]" 5 U.S.C. § 2302(b)(6) (2003).


Footnote # 4 for 59 FLRA No. 85 - Authority's Decision

   Article 8, Sections 1C and 1D of the parties' agreement provide, respectively, that "[a]ll employees shall be treated fairly and equitably and with dignity in all aspects of conditions of employment" and that "[i]t is agreed that Management will endeavor to establish working conditions which will be conducive to enhancing and improving employee morale and efficiency." Exceptions, Attachment 1 at 15.


Footnote # 5 for 59 FLRA No. 85 - Authority's Decision

   Article 44, Section 3 of the parties' agreement provides, in relevant part, that "[i]ssues and charges raised before the Arbitrator shall only be those raised at the last stage of the applicable grievance procedure." Exceptions, Attachment 1 at 89.


Footnote # 6 for 59 FLRA No. 85 - Authority's Decision

   We note that proposals directly determining the working conditions of managers or supervisors are permissive subjects of bargaining, but that "[o]nce an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute." United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 859 (2000) (then Chairman Wasserman concurring).


Footnote # 7 for 59 FLRA No. 85 - Authority's Decision

   To the extent this exception may be construed as a contention that the award is contrary to law because it allegedly permits a violation of 5 U.S.C. § 2302(b)(6), the Union provides no argument or evidence indicating that the parties are not permitted to exclude such matters from the scope of a negotiated grievance procedure in the manner found by the Arbitrator. See 5 U.S.C. § 7121(a)(2) (parties may exclude any matter from the application of the grievance procedure).


Footnote # 8 for 59 FLRA No. 85 - Authority's Decision

   We note that, unlike a substantive arbitrability determination, a procedural arbitrability determination is not subject to review based on an alleged f