United States, Department of Labor (Agency) and American Federation of Government Employees, Local 12 (Union)

[ v60 p737 ]

60 FLRA No. 140

UNITED STATES
DEPARTMENT OF LABOR
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

0-AR-3838
(60 FLRA 363 (2004))

_____

ORDER GRANTING MOTION FOR
RECONSIDERATION

March 15, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on the Agency's motion for reconsideration of the Authority's decision in United States Dep't of Labor, 60 FLRA 363 (2004) (Chairman Cabaniss concurring) (DOL). The Union did not file an opposition to the Agency's motion.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the reasons that follow, we grant the Agency's motion for reconsideration and consider the Agency's Article 16 claims that were not considered in DOL. Upon reconsideration of those claims, we deny them on the merits.

II.      Decision in 60 FLRA 363

      In the award reviewed in DOL, the Arbitrator found grievable and sustained a grievance alleging that the Agency improperly excluded the grievant from consideration for a GS-15 position. As relevant here, the Arbitrator found that the grievance was substantively grievable under Article 43, § 3(b)(9) of the parties' agreement, which excludes grievances over the "filling of a position outside the bargaining unit except for a position which is threshold to the unit." DOL, 60 FLRA at 363 (citation omitted). [n2]  In this connection, the Arbitrator found that, "taken as a whole, the record supports a finding that the position at issue was threshold to the unit and could be the subject of a grievance." Id. (citation omitted). The Arbitrator further found that the Agency failed to follow the requirements of Article 16, § 6(c) of the parties' agreement when it constituted the selection panel. The Arbitrator ordered that the grievant be given priority consideration for the next position for which he applies and is qualified.

      In its exceptions, the Agency argued that the Arbitrator's finding of a violation was based "entirely upon a finding that the Agency violated" Article 16, § 6(c), but Article 16 is "clearly inapplicable" to this case because it "only applies to bargaining unit positions and the position in this case is outside the bargaining unit." DOL, 60 FLRA at 364 (internal citations omitted). In support of its contention, the Agency cited Article 16, § 1, "Preamble," which states that the parties "also agree to fill positions in the bargaining unit on the basis of merit" in accordance with merit staffing procedures, and further contended that the grievance itself did not mention Article 16. Id. (internal citations omitted). In addition, the Agency asserted that the Arbitrator's "misplaced reliance" on Article 16 "improperly interferes with the Agency's bargaining rights" because promotion procedures for non-bargaining unit supervisory positions are negotiable only at the election of the Agency, and the Arbitrator's reliance on Article 16 "forces the Agency to apply that provision to non-bargaining unit positions." Id. (internal citations omitted).

      As relevant here, the Authority denied the Agency's exceptions, finding that the Agency's arguments with regard to Article 16 had not been raised below and were barred from consideration by § 2429.5 of the Authority's Regulations. Specifically, the Authority stated:

As the Agency could have argued to the Arbitrator that Article 16 did not apply to the filling of non-bargaining unit positions and was bargainable only at the election of the Agency, but did not do so, the Agency is not permitted to raise this issue for the first time [on exceptions]. Accordingly, under § 2429.5 of the Authority's Regulations, we decline to consider these arguments.

DOL, 60 FLRA at 365. [ v60 p738 ]

III.     Motion for Reconsideration

      The Agency argues that "the Authority erred in its factual finding by assuming that the Agency had an opportunity to contest the application of Article 16 . . . at arbitration." Motion for Reconsideration at 2. In this regard, the Agency asserts that it did not present any arguments regarding Article 16 to the Arbitrator "because Article 16 was not at issue in th[is] case." Id. (original emphasis). In support, the Agency contends that "[t]he first time [it] learned that Article 16 was relied on was when it received the Arbitrator's award" and that "is precisely the reason [it] filed exceptions." Id. at 2-3 (original emphasis).

      Citing to the grievance and the hearing transcript, the Agency asserts that it "would have been impossible for the Agency to argue to the Arbitrator that Article 16 did not apply, since neither party, nor the Arbitrator, had ever mentioned Article 16 at the grievance stage or during the hearings." Id. at 3. [n3]  The Agency asserts that, in its exceptions, it was arguing that "although the arbitration itself focused on the [Agency's] Merit Staffing Plan, the Arbitrator's award improperly and inexplicably applied Article 16 of the CBA." Id. According to the Agency, the Authority erroneously based its decision "on the assumption that Article 16 was at issue throughout the arbitration" when "a review of the grievance and the transcripts . . . demonstrate that the parties never considered Article 16." Id. Based on the foregoing, the Agency requests that the Authority reconsider its decision in DOL.

IV.      Analysis and Conclusions

A.      The Agency's motion for reconsideration.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 84 (1995) (Scott AFB). In Scott AFB, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that the Authority erred in its remedial order, process, conclusion of law, or factual finding. See id. at 85-87. The party seeking reconsideration of a final decision of the Authority has the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See id. at 85.

      Here, the Agency alleges that the Authority erred in its factual finding by "assum[ing] that Article 16 was at issue throughout the arbitration." Motion for Reconsideration at 3.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were "not presented in the proceedings before the . . . arbitrator." 5 C.F.R. § 2429.5. However, where an issue arises from the issuance of the award and could not have been presented to the arbitrator, it is not precluded by § 2429.5. See, e.g., United States Dep't of the Navy, Supervisor of Shipbuilding Conversion & Repair, Pascagoula, Miss., 57 FLRA 744, 745 (2002); United States Dep't of Agric., Animal & Plant Health Inspection Serv., Plant Prot. & Quarantine, 57 FLRA 4, 5 (2001).

      Upon review of the record in this case, it appears that Article 16 was raised for the first time in the Union's post-hearing brief to the Arbitrator, which was submitted to the Arbitrator at the same time the Agency submitted its own post-hearing brief. In this connection, there is no evidence in either the grievance or the hearing transcript that Article 16 was ever raised in the grievance or at the hearing. Specifically, the grievance alleges a violation of "Articles 3, 20, 43, and Appendix A of the labor agreement" and not Article 16. Motion for Reconsideration, Attachment 2 at 2. Similarly, the hearing transcript reveals that Article 16 was never mentioned by the parties, the Arbitrator, or any of the witnesses.

      Based on the foregoing, while the Agency may have had the opportunity to present arguments regarding the applicability of Article 16 to the Arbitrator, it had no reason to do so because Article 16 had not been raised either in the grievance or at the hearing. Having no reason to raise Article 16 prior to the issuance of the Arbitrator's award, the Agency properly raised the issue for the first time in its exceptions to the Authority. Accordingly, the Authority's factual finding that Article 16 should have been raised below was in error. In this regard, the issue of whether Article 16 applied in the present dispute arose from the issuance of the Arbitrator's award and, as such, it is not precluded by § 2429.5. Consequently, we grant the Agency's motion for reconsideration. Further, we consider the merits of the Agency's Article 16 claims that were not considered in DOL. [ v60 p739 ]

B.      The Agency's Article 16 claims that were not considered in DOL.

1.      The award draws its essence from Article 16 of the parties' 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. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Arbitrator found that the Agency failed to follow the requirements of Article 16, § 6(c) of the parties' agreement when it constituted the selection panel. The Agency asserts that the award of priority consideration fails to draw its essence from the agreement because Article 16 in its entirety applies only to bargaining unit positions, not to the non-bargaining unit position in this case. For the following reasons, we reject the Agency's assertion.

      Article 16, § 1, "Preamble," states that the purpose and intent of Article 16 "are to ensure that employees are given full and fair consideration for advancement and to ensure selection from among the best-qualified candidates." Exceptions, Attachment 7 at 64. Article 16, § 1 goes on to state that the parties "also" agree to fill positions in the bargaining unit on the basis of merit in accordance with systematic and equitable procedures adopted for this purpose. Id. Moreover, Article 16, § 2(b) provides that "[c]ompetitive merit staffing procedures apply to all personnel actions, . . . , except as otherwise indicated below." Id. at 64-65 (emphasis added). Promotion to a supervisory, non-bargaining unit position is not one of the enumerated exceptions and, as such, there is nothing in Article 16 which prohibited the Arbitrator from applying Article 16, § 6(c) in this case. In light of these provisions, it was not irrational, unfounded, or implausible for the Arbitrator to conclude in the circumstances before him that the Agency failed to follow the requirements of Article 16, § 6(c) of the parties' agreement when it constituted the selection panel. [n4] 

      Based on the foregoing, the Agency has failed to demonstrate that the Arbitrator's reliance on Article 16 is irrational, implausible, or in manifest disregard of that provision of the agreement. Accordingly, we deny the Agency's exception.

2.      The award does not interfere with the Agency's bargaining rights.

      The Agency also argues that the award fails to draw its essence from the parties' agreement because the Arbitrator's reliance on Article 16 interferes with its bargaining rights. In this connection, the Agency asserts that promotion procedures for non-bargaining unit supervisors are negotiable only at the election of the Agency. We construe this argument as a contention that, even if Article 16 applies to non-unit positions, it is a permissive subject of bargaining over which the Agency did not elect to bargain.

      Article 43, § 3(b)(9) of the parties' agreement prohibits grievances over the "filling of a position outside the bargaining unit except for a position which is threshold to the unit." Award at 2 (emphasis added). The Arbitrator found that the grievance was substantively arbitrable under this provision because "taken as a whole, the record supports a finding that the position at issue was threshold to the unit and could be the subject of a grievance." Id. at 8. Based on this finding, which the Agency did not challenge in DOL, the Arbitrator applied the merit staffing provisions found in Article 16 to resolve the merits of the grievance.

      Even assuming that Article 16 is a permissive subject of bargaining because, as applied in this case, it concerns a non-unit position, Authority precedent is clear that provisions resulting from elections to bargain over permissive subjects of bargaining are enforceable in arbitration. See, e.g., United States Dep't of Agric., Rural Dev. Okla., Stillwater, Okla., 59 FLRA 983, 985 (2004) (Agriculture) (Chairman Cabaniss writing separately and concurring in the result; Member Pope dissenting as to the remedy); United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 393, 395 (2000) (IRS). See also, Soc. Sec. Admin., Balt., Md., 57 FLRA 690, 693-94 (2002). The Authority "has unambiguously rejected the argument that awards enforcing provisions resulting from bargaining over permissive subjects concern `waiver of a statutory right and not contract interpretation.'" Agriculture, [ v60 p740 ] 59 FLRA at 985-86 (quoting IRS, 56 FLRA at 395). Specifically, the Authority held that an election to bargain "constitutes the exercise of the right . . . not an abandonment or relinquishment of the right." Id. at 396.

      Consistent with the foregoing precedent, the dispositive question is whether the Arbitrator's application of Article 16 draws its essence from the parties' agreement. See Agriculture, 59 FLRA at 986. Grievances concerning positions that are "threshold to the unit" are grievable under the parties' agreement, which includes the negotiated merit staffing procedures found in Article 16. Award at 2. For the reasons stated earlier, we find that the award draws its essence from Article 16 of the parties' agreement. Accordingly, we deny the Agency's exception.

V.      Order

      The Agency's motion for reconsideration is granted. The Agency's Article 16 claims that were not considered in DOL are denied on the merits.


APPENDIX

Article 16, Merit Staffing, of the parties' agreement provides in pertinent part:

Section 1. Preamble

The purposes and intent of this Article are to ensure that employees are given full and fair consideration for advancement and to ensure selection from among the best-qualified candidates.
The Department and Local 12 also agree to fill positions in the bargaining unit on the basis of merit in accordance with systematic and equitable procedures adopted for this purpose.

. . . .

Section 2. Introduction

. . . .

b.      Exceptions to Merit Staffing. Competitive merit staffing procedures apply to all personnel actions, including details to fill positions in the competitive service in the bargaining unit, except as otherwise indicated below.

. . . .

Section 6. Grouping of Candidates

. . . .

c.      Evaluation by Merit Staffing Panels. There shall be lists maintained at the Agency level of skilled and impartial persons from whose ranks rating panels shall be constituted. Local 12 will be consulted in the naming of individuals to be placed on the list. Panel members will receive training following their appointment and will be given copies of this Article. Persons who serve on panels must be either expert in the occupational field of the vacancy and at a grade level equal to or above the vacancy, or skilled in the evaluation of experience, education, and training at the level of the vacancy.

. . . .      

DOL, 60 FLRA at 365 (citation omitted).

Article 43, "Grievance Procedure," of the parties' agreement provides in pertinent part: [ v60 p741 ]

Section 3. Exclusions
. . . .
b.      Further, this Article does not apply to:
(3)     The judgment of a merit staffing panel or a qualifications rating examiner
. . . .
(9)      filling of a position outside the bargaining unit except for a position which is threshold to the unit.

Id. at 365-66 (citation omitted).

Article 44, § 9, "Grievability and Arbitrability," of the parties' agreement provides:

The arbitrator shall have the authority to make all determinations respecting grievability/ arbitrability. If the Department considers a grievance non-grievable or non-arbitrable, it should communicate such determination to the Union at the earliest possible time. In order to raise the issue at arbitration, the Department shall advise the Union no later than twenty (20) workdays after invocation and at least ten (10) workdays before the hearing.

Id. at 366 (citation omitted).


Concurring opinion of Chairman Cabaniss:

      I write separately to note that I agree to grant the motion for reconsideration. However, for the reasons set out by me in the original decision I would find that the waiver of a right to not bargain over a permissive matter is a legal issue, and not a contract interpretation issue, for which a de novo review is required.



Footnote # 1 for 60 FLRA No. 140 - Authority's Decision

   The concur