Association of Civilian Technicians, New York State Council (Union) and United States, Department of Defense, National Guard Bureau, State of New York Division of Military and Naval Affairs (Agency)

[ v61 p664 ]

61 FLRA No. 134

ASSOCIATION OF CIVILIAN TECHNICIANS
NEW YORK STATE COUNCIL
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
STATE OF NEW YORK DIVISION OF
MILITARY AND NAVAL AFFAIRS
(Agency)

0-AR-3877
(60 FLRA 890 (2005))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

August 23, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in Ass'n of Civilian Technicians, New York State Council, 60 FLRA 890 (2005) (New York State Council). The Agency did not file an opposition to the Union's motion.

      Section 2429.17 of the Authority's Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Union has failed to establish extraordinary circumstances warranting reconsideration of the decision in New York State Council. Accordingly, we deny the Union's motion.

II.      Decision in New York State Council

      In 2003, the New York State Clean Indoor Air Act was amended to prohibit smoking indoors in the workplace. As a result, the Adjutant General of the New York Army and Air National Guard issued a new smoking policy that prohibited smoking in all facilities occupied by the New York Army and Air National Guard. The Union filed a grievance.

      The parties were unable to stipulate the issues for resolution by the Arbitrator. While noting the Union's allegation that the Agency's "action was an unfair labor practice[,]" the Arbitrator determined that "[a]t the heart of this case is a dispute over the interpretation and application of the language of the Parties' Collective Bargaining Agreement." Award at 12, 20. Accordingly, in framing the issue to be resolved in the absence of a stipulation of the issue by the parties, the Arbitrator framed the issue as only a contractual one: whether the Agency violated the parties' collective bargaining agreement when it issued a new smoking policy and, if so, what should the remedy be. See id. at 2. The Arbitrator denied the grievance. She found that the Agency did not violate the parties' collective bargaining agreement when it issued the new smoking policy.

      The Union filed two exceptions to the award, and the Authority denied both exceptions.

      First, the Union contended that the award was deficient because "the arbitrator improperly failed to address whether the agency's action was an unfair labor practice." 60 FLRA at 891 (quoting Exceptions at 8). The Authority viewed this contention as a claim that the Arbitrator exceeded her authority by failing to resolve an issue submitted to arbitration. The Authority ruled that the Arbitrator did not fail to resolve an issue submitted. In this regard, the Authority concluded that as the parties did not stipulate that this case involved an unfair labor practice claim, the Arbitrator was not obligated to address and resolve whether the Agency's actions violated the Federal Service Labor-Management Relations Statute (Statute). See id. Because the Arbitrator was not obligated to address and resolve whether the Agency's actions violated the Statute, the Authority found that the Union's claim that the Agency's conduct constituted an unfair labor practice provided no basis for finding the award deficient. Accordingly, the Authority denied this exception.

      Second, the Union contended that the award was contrary to law because the circumstances under which federal employees are allowed to smoke in the workplace are negotiable conditions of employment. The Authority noted that it "has repeatedly acknowledged that parties are permitted to define through negotiations their bargaining obligations under the Statute." Id. at 892 (citations omitted). The Authority stated that the Arbitrator had permissibly interpreted the relevant collective bargaining agreement provision as defining the parties' bargaining obligation over smoking and limiting that obligation to matters that were "within the purview of [t]he Adjutant General's . . . smoking policy letter." Id. The Authority further found that "[a]s the Arbitrator was simply enforcing lawful, agreed-upon limits on the parties' obligation to bargain on the circumstances under which technicians could smoke, the award is not contrary to law." Id. Consequently, the Authority denied this exception as well. [ v61 p665 ]

III.      Union's Motion for Reconsideration

      The Union contends that reconsideration of New York State Council is warranted for two reasons.

      First, the Union asserts that "[t]he failure of the Arbitrator and the Authority to decide the unfair labor practice claims was contrary to law." Motion for Reconsideration at 8. The Union states that under the Statute, grievances may properly raise unfair labor practice allegations and contends that the failure of an arbitrator to resolve such an allegation that has been presented by a party is contrary to the Statute. In this regard, the Union asserts that it had a unilateral right under the Statute to raise its allegations that the Agency had violated the Statute under the negotiated grievance procedure and to obtain resolution of the allegations by binding arbitration, with a right of review of the award by both the Authority and a United States court of appeals to determine whether the resolution of the unfair labor practice allegations was consistent with the Statute. Accordingly, the Union claims that the Authority erred when it ruled that in the absence of a stipulation that included the unfair labor practice allegations, the Arbitrator was not obligated to address and resolve whether the Agency's actions violated the Statute.

      Second, the Union contends that reconsideration is warranted because, contrary to the finding of the Authority, the Arbitrator did not interpret and apply the parties' collective bargaining agreement in denying the grievance. The Union asserts that instead, the Arbitrator erroneously held that state law authorized and required the Agency to breach the agreement.

IV.      Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has identified a limited number of situations in which it has found extraordinary circumstances to exist. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 86-87 (1995). These include situations in which the Authority erred in its conclusions of law or factual findings. The party seeking reconsideration of the decision of the Authority has a heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See id. at 85. We conclude that the Union has failed to meet the heavy burden of establishing that extraordinary circumstances exist to justify reconsideration of New York State Council.

      With respect to the Union's first claim, the Authority, like federal courts in reviewing arbitration awards in the private sector, accords an arbitrator's formulation of the issues submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. See, e.g., Air Force Space Div., Los Angeles Air Force Station, Cal., 24 FLRA 516, 518-19 (1986) (citing Mobil Oil Corp. v. Indep. Oil Workers Union, 679 F.2d 299 (3d Cir. 1982)). Thus, the Authority's uniform practice has been to grant substantial discretion to arbitrators to decline to consider issues in cases in which there is no stipulation. See United States Dep't of Veterans Affairs Medical Center, Providence, R.I., 49 FLRA 110, 116 (1994). This practice is consistent with the language of the Statute, which reflects Congressional intent to apply private sector labor arbitration practice to the practice under the Statute. See § 7122(a)(2).

      In New York State Council, the Authority noted that the Arbitrator framed the merits issue for resolution as whether the Agency violated the collective bargaining agreement when it issued a new smoking policy and that the award resolved this issue. See 60 FLRA at 891. In these circumstances, the Authority concluded that the Arbitrator properly confined herself to determining whether the Agency violated the agreement and was not obligated to address and resolve whether the Agency's actions violated the Statute. In support of this conclusion, the Authority cited its decision in AFGE Local 1367, 60 FLRA 187 (2004) (Chairman Cabaniss dissenting) for the proposition that an arbitrator is not obligated to address whether an agency's actions violated law where, in the absence of a stipulation of issues by the parties, the arbitrator framed the issue only in terms of a violation of the collective bargaining agreement.

      In its motion for reconsideration, the Union does not directly challenge the Authority's practice of deferring to an arbitrator's formulation of the issues to be decided, in the absence of the parties' stipulation of the issues. Instead, the Union argues that the failure of the Arbitrator and the Authority to decide the unfair labor practice claims in this case was contrary to § 7116(d) of the Statute. [n1]  In the Union's view, § 7116(d) provides the Union not only with a unilateral right to raise unfair labor practice allegations under a negotiated grievance procedure, but also entitles it to a resolution of those allegations by the arbitrator along with a right of review of the award by both the Authority and a United States court of appeals to determine whether the resolution of the allegations was consistent with the Statute.

      For the reasons that follow, we reject this claim and conclude that § 7116(d) does not provide a basis for [ v61 p666 ] reconsidering the application of the Authority's practice of deferring to an arbitrator's formulation of the issues for resolution in the absence of a stipulation, even where a party alleges an unfair labor practice before the arbitrator.

      As the Authority has repeatedly acknowledged, § 7116(d) is an election-of-remedy provision and its purpose and effect is to prevent relitigation of an issue in another forum after a selection of forum in which to raise the issue has been made by the aggrieved party. See, e.g., AFGE, Council 170, Local 2128, 58 FLRA 316, 317 (2003) (citing Fed. Bureau of Prisons, 18 FLRA 314, 316 (1985)). By its language, § 7116(d) confirms that issues that can properly be raised as an unfair labor practice or as a grievance may in the discretion of the aggrieved party be raised under the negotiated grievance procedure or the statutory unfair labor practice procedure, but not under both procedures. It is similar to other choice-of-forum provisions in the Statute, such as § 7121(d). [n2]  The essential feature of these choice-of-forum provisions in the Statute is the confirmation that certain claims can be pursued under a negotiated grievance procedure or another statutory procedure and that aggrieved parties must choose only one procedure under which to pursue their claim.

      The Union has pointed to no wording in the Statute or other authority establishing that in addition to mandating an election of forums for the purpose of preventing relitigation, § 7116(d) also mandates a merits resolution of the unfair labor practice allegation by the arbitrator if a grievance is filed, as well as Authority and judicial review of the resolution of the allegation. We note, in this regard, that if an aggrieved party elects under § 7116(d) to file an unfair labor practice charge with the Authority and the Authority's General Counsel determines that an unfair labor practice issue is not presented and decides not to issue a complaint, then § 7116(d) does not entitle the party to a resolution by the Authority of whether an unfair labor practice was committed. Thus, adopting the Union's approach would provide those who chose to use the grievance procedure, rather than the procedures of § 7118 of the Statute, to litigate alleged unfair labor practices with an inequitable advantage. This same inequity would extend to judicial review by a United States court of appeals under § 7123 of the Statute, [n3]  which is not available with respect to a determination of the General Counsel that no unfair labor practice was presented. See Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982) (a determination not to issue an unfair labor practice complaint is not reviewable by the Authority and generally is not reviewable by a court).

      Without any textual or other support for the Union's argument that § 7116(d) requires arbitrators to always address and resolve alleged unfair labor practice allegations that a party may raise, we decline to impose such a requirement. Instead, in our view, aggrieved parties elect the forum as it is constituted under the provisions of the Statute.

      Furthermore, no other basis has been established for fashioning a special rule under the Statute solely for unfair labor practice allegations submitted to arbitration. That is, we see no basis for treating such allegations different from other contrary-to-law allegations, or any grievable issue for that matter. Under the definition of grievance set forth in § 7103(a)(9) of the Statute, claims based on alleged violations of law, as well as claims based on other grounds, are all grievable under the Statute. The Union provides no basis on which to support its contention that statutory unfair labor practice grievances warrant special consideration under the Statute.

      Accordingly, we deny the Union's motion for reconsideration of our denial of its exceeded authority exception in New York State Council[n4] 

      We also reject the Union's second assertion that reconsideration is warranted because, contrary to the finding of the Authority, the Arbitrator did not interpret and apply the parties' agreement in denying the grievance. In New York State Council, the Authority expressly noted that the Arbitrator specifically framed the merits issues as whether the Agency violated the agreement when it issued a new smoking policy and that in denying the grievance, the Arbitrator specifically interpreted and applied the agreement when she found that the Agency did not violate the agreement when it [ v61 p667 ] issued a new smoking policy. See 60 FLRA at 890-91. The Union's assertion that the Arbitrator did not apply the agreement fails to establish a factual error by the Authority warranting reconsideration.

V.      Order

      The Union's motion is denied.



Footnote # 1 for 61 FLRA No. 134 - Authority's Decision

   Section 7116(d) pertinently provides: "Except for matters wherein . . . an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures."


Footnote # 2 for 61 FLRA No. 134 - Authority's Decision

   Section 7121(d) provides that complaints of employment discrimination that are not excluded from the applicable negotiated grievance procedure may be raised as a grievance or as a statutory equal employment opportunity complaint, but not both.


Footnote # 3 for 61 FLRA No. 134 - Authority's Decision

   Section 7123(a) provides that the Authority's decision resolving exceptions to an arbitration award under § 7122 of the Statute is not judicially reviewable "unless the order involves an unfair labor practice under § 7118[.]"


Footnote # 4 for 61 FLRA No. 134 - Authority's Decision

   Even if we were to address the alleged unfair labor practices, we would nonetheless find that the denial of the grievance was not deficient. Specifically,