United States, Department of the Army, Womack Army Medical Center, Fort Bragg, North Carolina (Agency) and American Federation of Government Employees, Local 1770 (Union)

[ v60 p721 ]

60 FLRA No. 137

UNITED STATES
DEPARTMENT OF THE ARMY
WOMACK ARMY MEDICAL CENTER
FORT BRAGG, NORTH CAROLINA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1770
(Union)

0-AR-3873

_____

DECISION

March 10, 2005

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Michele Hoyman 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. [n1] 

      The Arbitrator initially determined that a grievance alleging that the Agency violated the parties' agreement by designating certain unit members as adverse weather essential personnel was arbitrable for three reasons: 1) the matter concerned a continuing condition; 2) the Agency raised the arbitrability issue just shortly before the arbitration hearing, in violation of Article XXXI, § 5 of the parties' agreement which requires that arbitrability issues be raised by Step III of the grievance procedure; and 3) "that if the arbitrability were so obviously an issue, the [A]gency should have invoked it . . . when the grievance was filed." Award at 4.

      On the merits, the Arbitrator sustained the grievance and found that the Agency violated the parties' agreement when it designated certain employees adverse weather essential. The Arbitrator ordered the Agency to rescind the affected employees' status as adverse weather essential and to make those employees whole. In addition, the Arbitrator stated that the Agency should not discipline employees for challenging the designation as adverse weather essential.

      For the following reasons, we deny the Agency's essence exception and set aside the award because it is contrary to management's right to assign work.

II.      Background and Arbitrator's Award

      The Agency designated pathology lab employees (path lab employees) and phlebotomists at one of its medical centers as adverse weather essential personnel. [n2]  Award at 1, 3. According to the agreement between the parties and an Agency memo, adverse weather essential employees are those employees who are critical or required for the operation of the medical center and are designated as such consistent with Agency policies and legislation. [n3]  Award at 6. The Agency memo also states that the lab may operate with reduced staff. Id. When an employee is designated as adverse weather essential personnel, that employee is expected to report to work during inclement weather, with no change in pay or position classification. Id.

      Under the parties' agreement, the time limit for filing a grievance is thirty days and the parties must raise any issue of arbitrability by Step III in the grievance process. Id. at 3.

      In October 2003, the Union filed a grievance alleging that the Agency violated the parties' agreement when it designated the path lab employees and the phlebotomists adverse weather essential. Id. at 1. The parties were unable to resolve the grievance and the grievance was submitted to arbitration. Id. [ v60 p722 ]

      The Arbitrator determined that there were two issues in the case: the arbitrability of the grievance, raised by the Agency at the time of the hearing; and whether the Agency violated the agreement "by designating certain employees as adverse weather essential[.]" Id. at 2.

      Regarding the issue of arbitrability, the Agency argued that the Union became aware that the path lab employees and the phlebotomists were designated as adverse weather essential in February 2003, and did not file the grievance until October 2003, more than thirty days later. Id. at 3. In support of its argument, the Agency pointed to an employee's testimony that she received "word" that she was designated adverse weather essential, signed a statement regarding the designation and informed the Union of the designation in February 2003. Id.

      The Agency also argued that arbitrability is "normally," but is not required to be, raised by Step III. Award at 2. Finally, the Agency asserted that it did not notify the Union that arbitrability was an issue before the hearing because the grievance never reached Step III. Id.

      Citing to testimony from the hearing, the Union maintained that it did not become aware of the adverse weather essential designation until the last week in September 2003, and that it filed the instant grievance "almost immediately." Id. at 3. In addition, the Union asserted that the Agency violated the parties' agreement by not raising the issue of arbitrability before Step III of the process. Id. Finally, the Union explained that the Agency did not meet several deadlines regarding the grievance. Id.

      The Arbitrator, considering all of the facts and testimony, concluded that the grievance was arbitrable and that the Agency raised the arbitrability claim simply to "block the substantive claim as an effort to win the case on a technicality." Id. at 4. First, the Arbitrator reasoned that if the Agency was convinced that the case was not arbitrable, then it would have raised the issue before the hearing. Id. Second, the Arbitrator explained that if the issue of arbitrability was so clear, then the Agency would have raised it when the grievance was filed. Id. Finally, the Arbitrator determined that the designation was a continuing practice. [n4]  Id. at 4-5. Based on these reasons, the Arbitrator found that the Agency violated the agreement by not raising the arbitrability issue by Step III in the grievance. Id. at 5.

      Turning to the substance of the grievance, the Agency argued that adverse weather essential employees include ancillary employees who are required for the operation of the medical center. Award at 7. According to the Agency, path lab employees and phlebotomists are ancillary employees who are essential to the operation of the medical center because if these employees are not there, "this would pull others off patient care." Id.

      The Union asserted that the designation of the phlebotomists and path lab employees as adverse weather essential violates the parties' agreement and should be rescinded. Id. The Union maintained that the phlebotomists and lab employees are not essential as illustrated by the fact that the lab has closed in adverse weather and that the nurses perform the "time-sensitive duties of lab workers" in adverse weather. Id.

      The Arbitrator, considering the parties' agreement and the Agency memo, concluded that the standard for adverse weather essential personnel is whether the employee is "critical, essential or required for the operation of the [m]edical [c]enter." Award at 9. The Arbitrator stated, "[a]t the core of the definition of essential is: [i]s the employee's position critical[.]" See id. Based on this finding, the Arbitrator explained that if the evidence illustrated that the path lab employees and the phlebotomists are critical to the operation of the medical center, then the designation as adverse weather essential was appropriate, but if the employees are not critical, then the designation violates the parties' agreement. Id. at 10.

      Examining the relevant evidence, the Arbitrator found that the pathology lab "may operate with reduced staff . . . after finalizing necessary support to . . . critical care areas." Id. at 6. In addition, the Arbitrator determined that there were Agency officials who had deemed the lab as "non-essential" based on testimony that it had been closed on adverse weather days, as well as testimony that the lab does not perform essential duties during adverse weather and that phlebotomists are not necessary during such days. Id. at 6-7, 13. The Arbitrator stated that testimony established that the lab has operating hours and does not operate 24 hours a day. Id. at 13. Addressing the specific language in the parties' agreement regarding the lab, the Arbitrator explained that "a reasonable constru[ction] of that language is not that all [p]ath lab employees and [p]hlebotomists [ v60 p723 ] ought to automatically be considered essential by dint of being [l]ab employees." See Award at 12.

      Based on her review of the testimony, the Arbitrator concluded that the path lab employees and phlebotomists were not essential to the operation of the medical center. Id. at 15. Therefore, the Arbitrator sustained the grievance because the Agency violated the parties' agreement by designating those employees as adverse weather essential. Id. at 15. As a remedy, the Arbitrator ordered any path lab employees and phlebotomists designated as adverse weather essential to be made whole "in all respects." Id. In addition, the Arbitrator stated the "employer should not discipline employees for challenging the designation." Id.

III.      Agency's Exceptions

A.      The award is deficient because it fails to draw its essence from the parties' agreement.

      The Agency argues that the award fails to draw its essence from the agreement because it is based on a "complete disregard for the unambiguous language of the [agreement]" and does not represent a plausible interpretation of the agreement. Exceptions at 4. According to the Agency, an arbitrator is "limited to the language of the [agreement]" and the Arbitrator "failed to stay within [the] limit[s] when she rewrote the language of the [agreement] with regard to the 30-day deadline to file a grievance" and therefore the award fails to draw its essence from the agreement. See id. at 5.

      The Agency initially contends that the grievance was not arbitrable under the plain language of the agreement. Id. at 5. The Agency explains that the evidence presented at arbitration proved that the Union was aware of the "grievable issue" in February 2003, but failed to present it to the Agency within 30 days. Id. The Agency states that the Union bears the burden of establishing that it was not aware of the grievable issue and did not satisfy that burden. Id. at 6. According to the Agency, the agreement does not contain any provision allowing for the time limit to be "refreshed" after each notification. Id. The Agency argues that it is clear that the Arbitrator ignored the plain language of the agreement when she determined that the grievance was timely filed and arbitrable. Id.

      Further, concerning the procedural arbitrability, the Agency asserts that the Arbitrator erred by finding that the designation of employees as adverse weather personnel was a continuing practice because it was inconsistent with the Arbitrator's recognition that the designation may not become active for months, depending on the weather which is the triggering event. Exceptions at 6. The Agency explains that it would be irresponsible to wait until adverse weather to designate employees as adverse weather essential. Id.

      The Agency further argues that the Arbitrator's conclusion that the grievance was arbitrable is deficient because the determination was based "[o]n a finding that the Agency violated the [agreement] by missing a processing deadline for the grievance in question, therefore `[she could not] stand by and let one party invoke a missed deadline in processing the same grievance.'" Id. at 7. The Agency explains that it did not violate the agreement by raising the issue of arbitrability when it did because the agreement only suggests the parties raise a threshold issue "by the time a Step [III] decision is rendered[.]" Id. In the alternative, the Agency maintains that the issue of arbitrability was raised in a timely fashion because there never was a Step III meeting or decision. Id. Finally, the Agency reasons that even if it did violate the agreement, the Union violated it first, rendering an Agency violation irrelevant. Id.

      In addition, the Agency asserts that the award fails to draw its essence from the agreement because the Arbitrator misinterpreted Article XVII. The Agency argues that Article XVII was negotiated to include administrative staff as adverse weather essential personnel in order to relieve the doctors and nurses from having to perform administrative duties during adverse weather. Id. at 8. In addition, the Agency maintains that the provision is clear and is meant to "specifically exempt management from having to engage in [impact and implementation] bargaining [over] designating [a]dverse [w]eather [essential] [e]mployees[.]" Id. According to the Agency, the intent of the provision is clear in the definition of adverse weather essential employees. Id. Finally, the Agency argues that its actions fell under the "covered by doctrine" and any other interpretation does not represent a plausible interpretation of Article XVII. Id. at 9.

B.      The award is contrary to law because it excessively interferes with management's right to assign work and determine the personnel by which Agency operations shall be conducted.

      The Agency contends that the award interferes with its right to assign work and the right to determine personnel by which Agency operations shall be conducted. Exceptions at 9. The Agency states that management's right to assign work specifically includes the right to designate adverse weather essential personnel. Id. (citing International Assoc. of Machinists and Aerospace Workers Union, 33 FLRA 711 (1988)). [ v60 p724 ]

      The Agency argues that the Authority applies a two-prong test to determine whether an award impermissibly interferes with a management right, and if the award fails to satisfy either prong, the award will be found deficient. Id. at 10. The Agency asserts that in order to decide whether the award excessively interferes with its right to assign work and determine personnel by which agency operations shall be conducted, the Authority must weigh the benefits to employees and the burden on the Agency. Id. at 10. The Agency explains that the benefit to employees would be that they would not need to report to work during adverse weather, but that being designated as adverse weather essential personnel does not change any conditions of employment. Id.

      The Agency contends that the benefit to employees is balanced against "management's obligation to ensure the safety of the people who rely on [the medical center] for their medical care." Id. at 11. According to the Agency, the department of pathology must be staffed during adverse weather "in order to ensure continual medical services and to protect the lives and health of the population . . . ." Id. Citing to testimony provided at arbitration, the Agency argues that path lab employees and phlebotomists are "ancillary employees required to maintain the operation of the medical center." See id. The Agency asserts that if the path lab employees and phlebotomists were not designated as adverse weather essential, then the medical center could not safely function. Id. at 12.

      The Agency concludes that the benefit to employees of not being designated as adverse weather essential is far outweighed by the burden on the Agency of operating the medical center without such personnel. Id. at 13.

IV.     Analysis and Conclusions

A.      The award does not fail to draw its essence from the agreement.

      The Agency alleges that the Arbitrator's finding of arbitrability and her interpretation of Article XVII fail to draw their essence from the agreement. In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Agency challenges the Arbitrator's finding of arbitrability and argues that the grievance was not timely filed and therefore was not arbitrable under the plain language of the agreement. An arbitrator's determination regarding the timeliness of a grievance constitutes a procedural arbitrability determination. United States Dep't of Defense, DLA, Def. Distrib. Depot, New Cumberland, Pa., 58 FLRA 750, 753 (2003). Generally, the Authority will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See id. (citing AFGE Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id. See also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE Local 2921, 50 FLRA 184, 185-86 (1995)). See also United States Dep't of Def., Educ. Activity, Arlington, Va., 59 FLRA 806 (2004); NAGE, Local R5-188, 59 FLRA 696 (2004) (essence arguments concerning the timeliness of the filing of a grievance and invocation of arbitration directly challenge an arbitrator's determination of procedural arbitrability and do not demonstrate that the award is deficient).

      In this case, the Agency's claim, that the grievance was not timely filed and, therefore, was not arbitrable, directly challenges the Arbitrator's arbitrability determination. The exception does not challenge the arbitrability determination as being contrary to law. Accordingly, we deny the Agency's claim that the award finding the grievance timely filed is deficient.

      In addition, the Agency argues that the Arbitrator "rewrote" the agreement and misinterpreted [ v60 p725 ] Article XVII. [n5]  Exceptions at 5. The Arbitrator examined the language of the parties' agreement and interpreted it. Award at 9-10. The Agency does not offer any evidence that this interpretation is unfounded, implausible or represents a manifest disregard for the agreement. Based on the above, we deny this portion of the Agency's essence exception.

B.      The award excessively interferes with management's right to assign work.

      The Agency argues that the award is contrary to § 7106(a) and excessively interferes with its right to assign work and determine the personnel by which Agency operations shall be conducted. [n6]  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.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-53 (1997) (BEP).

      The right to assign work under § 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See United States Food & Drug Admin., Detroit Dist., 59 FLRA 679, 682 (2004). The Arbitrator ordered the Agency to rescind the designations of path lab employees and phlebotomists as adverse weather essential. By doing so, the award affects the Agency's right to determine when work assignments will occur and to whom the duties will be assigned. Id. As such, the award affects the Agency's right to assign work.

      Upon finding that an award affects a management right, the Authority applies a two-prong test to determine if the award is deficient. BEP, 53 FLRA at 152-53. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a provision in the agreement that was negotiated pursuant to § 7106(b) of the Statute. Id. at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or provision in the agreement at issue. Id. at 154. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties. Id.

      Under prong I of BEP, the Authority considers whether Article XVII, as interpreted and applied by the Arbitrator, constitutes either an appropriate arrangement or a procedure within the meaning of § 7106(b). See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 110 (2002); BEP, 53 FLRA at 152-53. The Agency argues that the award excessively interferes with its right to assign work and to determine the personnel by which work will be accomplished. Therefore, we confine the discussion to the Agency's arguments. United States Dep't of Veterans Affairs, Augusta, Ga., 59 FLRA 780 (2004). A provision excessively interferes with a management right if the benefits afforded employees under the provision are outweighed by the intrusion on the exercise of management's rights. BOP Oklahoma City, 58 FLRA at 111.

      In this case, the Agency argues that the burden of not being able to assign employees it deems critical to work during adverse weather outweighs the benefit to employees of not being designated adverse weather essential. Exceptions at 12-13. The Agency argues that the benefit to the employees is not being required to work during adverse weather. [n7] 

      By ordering the Agency to cancel its designation of the path lab employees and the phlebotomists [ v60 p726 ] as adverse weather essential, the award overturns the Agency's substantive determination that these employees are critical to the operation of its medical center and prevents management from determining the particular duties to be assigned and when work assignments will be performed. The award operates to prevent the Agency from assigning any path lab or phlebotomists to staff the lab during periods of adverse weather. Award at 13. Moreover, management's inability to assign lab work to lab personnel would require the Agency to assign those duties to other employees. This is a significant burden on the Agency's ability to exercise its right to assign work. United States Dep't of Justice, Immigration and Naturalization Serv., San Diego, Cal., 51 FLRA 1094, 1101 (1996) (DOJ, San Diego) ("[The] Authority has long held that attempts to preclude the assignment of work on particular days of the week are inconsistent with the right to assign work."); AFGE, Local 85, 32 FLRA 210, 216 (1988) (A proposal precluding an agency from determining when duties would be performed found nonnegotiable as it prevented the agency from exercising its right to assign work.). See also IFPTE, Local 1, 49 FLRA 225, 249 (1994) (proposal that acted as an absolute restriction on the right to assign particular duties to certain employees found to excessively interfere with management's rights); NTEU, Chapter 26, 22 FLRA 314, 325 (1986) (proposals that could have the effect of completely abrogating the agency's right to assign a particular employee to perform a particular job excessively interfered with management's right to assign work).

      Although the Agency acknowledges that the benefit to employees is not having to travel in adverse weather conditions, this benefit is reduced by the Arbitrator's finding that the Agency provides safe transportation to employees during inclement weather. Award at 6.

      Because the Arbitrator interpreted the parties' agreement in such a way as to completely prevent the Agency from assigning work to path lab employees and phlebotomists during times of adverse weather, and the benefit to employees of not having to travel during adverse weather is reduced by the Agency providing transportation, we find that the benefit to the employees is outweighed by the burden on the Agency. Therefore, the award excessively interferes with management's right to assign work. See DOJ, San Diego, 52 FLRA at 1101; AFGE, Local 85, 32 FLRA at 216. Therefore, we set aside the award as it fails to satisfy prong I of BEP.

V.      Decision

      The Agency's essence exception is denied. The award is set aside because it excessively interferes with management's right to assign work. [ v60 p727 ]


APPENDIX

Article XVII - Adverse Weather Conditions

Section 1. This Article only applies to adverse weather situations where all or part of the activities at the Agency (to include tenant activities) may be suspended by management due to adverse weather conditions or work conditions altered due to extreme heat or cold weather. Managers and supervisors will be informed of the implementation of this condition through command channels. Once the Commander has made the decision to release employees no person in the command will delay implementing release of employees.

Adverse Weather Emergency Employees, [who may be referred to by the Office of Personnel Management (OPM) and/or other Government Agencies/Activities by other terms], are those employees who perform essential duties which insure the continu[ity] of vital medical functions, public and Agency safety functions, national defense functions or other critical operations/functions that are required to continue regardless of weather conditions.

Adverse Weather Emergency Employees include but is not necessarily limited to the following: all medical professionals, Licensed Practical Nurses, emergency medical and/or ambulance personnel and/or ancillary employees required to maintain the operation of the medical center . . . .

Department of Defense Memo - Section 3. Definition

      a.      Mission-Essential Personnel are those personnel that must be present for duty to continue and sustain essential facility and clinical operations for the first 24 hours of a declared emergency. After 24 hours, all employees are subject to selective recall. All designated mission essential personnel must be prepared to remain at their duty location for up to 24 hours, possibly more, depending upon the emergency situation or weather conditions. After due written noti