United States, Department of the Air Force (Agency) and American Federation of Government Employees, Local 997 (Union)

[ v61 p797 ]

61 FLRA No. 159

UNITED STATES
DEPARTMENT OF THE AIR FORCE
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 997
(Union)

0-AR-4057

_____

DECISION

September 15, 2006

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator William H. Holley, Jr. 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.

      The grievance alleged that the Agency violated the parties' agreement and Office of Personnel Management (OPM) regulations when it conducted a reduction in force (RIF). The Arbitrator sustained the grievance in part and ordered the Agency to return four grievants to their pre-RIF positions and to ensure that position descriptions are accurate. For the following reasons, we deny the Agency's exceptions in part and remand the award for further findings.

II.     Background and Arbitrator's Award

      In 2003, the Agency notified the Union of its intentions to undergo a RIF on July 31, 2004. It also issued voluntary separation incentive pay (VSIP) surveys to employees. In response, the Union requested certain information pursuant to Articles III and XII of the parties' agreement and requested to bargain over the Agency's reorganization plans. [n1]  See Agency's Attachment 3 at 2. Subsequently, the Union filed an unfair labor practice (ULP) charge alleging that the Agency violated § 7116(a)(1) and (5) of the Statute by: (1) failing to bargain over the RIF procedures and accompanying VSIP buyouts; (2) bypassing the Union in distributing VSIP surveys to bargaining unit employees; and (3) failing to provide the Union with information requested pursuant to the parties' agreement. According to the ULP charge, the Agency's failure to bargain and provide requested information constituted a repudiation of Articles III and XII of the parties' collective bargaining agreement. The Federal Labor Relations Authority's Regional Director (RD) declined to issue a complaint on June 2, 2004. See id. at 1.

      The Agency conducted the RIF as planned on July 31, 2004, and several employees were reassigned to different positions as a result of the RIF. The Union filed a group grievance on behalf of 13 employees. The grievance alleged that the RIF was a sham and that the Agency had violated RIF regulations and the parties' agreement by not properly assigning employees using accurate retention registers. Unresolved, the grievance was submitted to arbitration, where the Arbitrator framed the issue as:

Whether the reorganization of the Standard Systems Group, specifically the [r]eduction in [f]orce made effective on July 31, 2004, was properly managed and executed by the Maxwell AFB Civilian Personnel Flight and the Air Force Personnel Center in accordance with applicable guidelines, regulations, and laws.

Award at 19.

      Initially, the Arbitrator explained that five grievants withdrew from the grievance and four others did not participate in the hearing. Therefore, the Arbitrator decided to limit his award to the four remaining grievants who testified at the hearing. See id. at 87. The Arbitrator rejected the Union's claim that the Agency purposely manipulated the RIF procedures to achieve an end result and, therefore, he denied the portion of the grievance that alleged that the RIF was a sham. He also rejected the Union's claims that one of the grievants should have been exempt from the RIF because of her "special student status" and that all of the grievants were entitled to positions held by other employees. Id. at 91-92.

      However, the Arbitrator found that "mistakes were made" by the Agency in conducting the RIF. Id. at 89. In this regard, the Arbitrator credited two grievants' testimony [ v61 p798 ] that they are performing the same duties as they were prior to the RIF. As such, the Arbitrator found that "the RIF was not applied accurately" to them. Id. In addition, the Arbitrator found that the Agency improperly credited all grievants with 20 additional years of service for RIF purposes based on their last three performance ratings. Id. at 90. According to the Arbitrator this action was "arbitrary and inappropriate" and resulted in inaccuracies with respect to comparing employees. Id. In this connection, the Arbitrator explained that assigning all employees the same rating precluded "any differentiation between individuals." Id. To remedy these violations, the Arbitrator ordered the Agency to return the grievants to their pre-RIF positions, "restore their rights, and make them whole of any monetary losses, if any." Id. at 92, 89.

      The Arbitrator also found that the Agency violated RIF procedures when it assigned employees from the retention register by "taking every ninth person from [the] list . . . ." Id. at 91. The Arbitrator did not award a specific remedy for this violation. Finally, the Arbitrator found that the grievants' position descriptions were not accurate, in violation of the parties' agreement, and he ordered the Agency to ensure that the position descriptions are accurate. See id. at 92.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims the award is contrary to law in three respects and that the Arbitrator exceeded his authority.

      First, the Agency claims the award violates § 7116(d) of the Statute because the grievance raises issues that were raised in the earlier-filed ULP charge that was dismissed. In this connection, the Agency asserts that the Union has cited Articles III and XII of the parties' agreement as the grounds for its claims in both proceedings. See Exceptions at 10.

      Second, the Agency disputes the Arbitrator's finding that it was inappropriate to credit all employees with 20 additional years of service. In this regard, the Agency claims the award violates § 351.504(d) of OPM's regulations, which the Agency claims permits it to give 20 additional years of service for RIF purposes to employees who have received a performance rating of outstanding for the past three years. According to the Agency, its witness testified without rebuttal that "the 20 additional points were accurately awarded in this case; that is, that each employee had earned it." Id. at 4.

      Third, the Agency claims the award violates its rights to direct employees and assign employees, which include the right to determine when there is a surplus of employees in a particular location or line of work. According to the Agency, the Arbitrator found that it did not purposely manipulate the OPM RIF procedures and, therefore, any "remedies set forth are inconsistent with the [A]rbitrator's ruling" on this issue. Id. at 8. More specifically, the Agency argues that the remedies "constitute an excessive interference" with these management rights because no employee was involuntarily separated or lost pay as a result of the RIF. Id. at 9.

      Finally, the Agency claims the Arbitrator exceeded his authority because his finding that the RIF was not a sham resolved the issue which he framed. Therefore, according to the Agency, further violations found and remedies awarded were improper. [n2]  See id. at 12.

B.     Union's Opposition

      According to the Union, the grievance is not barred by § 7116(d) of the Statute because the ULP charge and the grievance do not concern the same issues. Specifically, the Union asserts that the ULP charge alleged violations of the Statute in connection with certain pre-RIF actions, such as "a failure to bargain in good faith in advance of the [RIF], a repudiation of some provisions of the parties' . . . agreement, and a bypass of the Union by polling employees directly." Opposition at 4. The Union claims that "[t]he grievance, on the other hand, concerned the Agency's implementation of the RIF." Id.

      The Union also disputes the Agency's claim that the award conflicts with OPM's regulations. According to the Union, by finding that "mistakes were made," the Arbitrator found that provisions of OPM's regulations were not followed and, thus, "the RIF was not properly managed and executed." Id. at 3 (emphasis omitted). In response to the Agency's claim under § 351.504(d), the Union asserts that it presented evidence that "the employees' performance ratings were not a factor in the assignment of additional service credit based on performance." Id. According to the Union, the Arbitrator credited this evidence and not the Agency witness' testimony to the contrary. As such, the Union asserts that the Arbitrator properly found that the credit of 20 additional [ v61 p799 ] years of service for RIF purposes was "arbitrary and inappropriate." Id.

      According to the Union, the Agency's management rights and exceeded authority arguments are based on one "fatal flaw." Id. at 4. In this connection, the Union asserts that, even though the Arbitrator found that the Agency did not manipulate the RIF process, he also found that "mistakes were made." Id. That is, according to the Union, the Arbitrator found that the Agency did not follow the RIF regulations. As such, the Union asserts, "the Arbitrator [wa]s free to construct an appropriate remedy." Id.

IV.     Analysis and Conclusions

A.      Standard of Review

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.      The Grievance Is Not Barred By § 7116(d) of the Statute

      The Agency argues that the grievance is barred by § 7116(d) of the Statute because it raises the same issues as an earlier-filed ULP charge. In order for a grievance to be precluded under § 7116(d) by an earlier-filed ULP charge: (1) the issue that is the subject matter of the grievance must be the same as the issue that is the subject matter of the unfair labor practice charge; (2) such issue must have been earlier raised under the unfair labor practice procedure; and (3) the selection of the unfair labor practice procedures must have been in the discretion of the aggrieved party. See United States Dep't of the Army, Norfolk Dist., Army Corps of Eng'rs, Norfolk, Va., 59 FLRA 906, 909 (2004) (citing United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, Region II, 36 FLRA 448, 451 (1990)). In determining whether a grievance and a ULP charge involve the same issue, the Authority examines whether the charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the charge and the grievance are substantially similar. See United States Dep't of Hous. & Urban Dev., Denver, Colo., 53 FLRA 1301, 1317 (1998).

      The Agency claims the grievance is barred because the subject matter of the grievance is the same as the subject matter of the earlier-filed ULP. Specifically, the Agency argues that Articles III and XII were raised as grounds for the Union's claims in both the grievance and the ULP. Although the Agency is correct that the Union relies on Articles III and XII in both proceedings, the factual circumstances underlying the Union's reliance on these provisions in each proceeding are different. In this regard, there is no dispute that the Union's ULP charge concerns actions that occurred prior to the RIF, while the grievance concerns the Agency's actions in implementing the RIF. Specifically, the ULP charge alleges that the Agency violated the Statute by not providing the Union with certain information, by not bargaining over VSIP buyouts, and by not consulting the Union before changing conditions of employment. Agency's Attachment 3 at 3, 7, 9-10. Conversely, the grievance alleges that the RIF was a sham and that the Agency made numerous errors implementing the RIF in connection with job placements. [n3]  Award at 13-14.

      As the grievance and the ULP arise under different factual circumstances and legal theories, we find that the grievance is not barred by the earlier-filed ULP, and we deny the Agency's exception. See Library of Congress, 58 FLRA 486, 488 (2003) (Member Pope dissenting on other grounds) (LOC) (grievance that arose under different factual circumstances as an earlier-filed ULP not barred); see also United States Dep't of Labor, Wash., D.C., 59 FLRA 112 (2003) (Chairman Cabaniss concurring) (Member Armendariz dissenting) (grievance not barred by earlier-filed ULP where legal theories raised in each proceeding were different). [ v61 p800 ]

2.      The Record Is Insufficient For the Authority To Assess the Award's Consistency With 5 C.F.R. § 351.504(d)

      The Agency disputes the Arbitrator's conclusion that it improperly credited all employees with 20 additional years of service for RIF purposes. The Agency relies on § 351.504(d) of OPM's regulations, which requires agencies to award employees, based on their three most recent ratings of record, "additional retention service credit . . . expressed in additional years of service . . . ." § 351.504(d). As relevant here, 20 additional years of service are awarded "for each rating of record with a [l]evel 5 (outstanding or equivalent) summary[.]" Id. at 351.504(d)(1).

      According to the Agency, its witness testified that "each employee had earned" the 20 additional years of service for RIF purposes, based on their performance ratings. Exceptions at 4. However, the Union asserts that its witnesses testified that the Agency gave the 20-year credits without regard to the employees' performance ratings. Neither party provides any evidence to support their respective positions before the Authority. Moreover, although the Arbitrator found that awarding all employees 20 additional years of service for RIF purposes was "arbitrary and inappropriate[,]" he did not reference § 351.504(d) and made no factual findings relevant to assessing whether, in this respect, the award is deficient. Award at 90. In this regard, the Arbitrator stated only that:

In a comparative (competitive) analysis, every individual has the same score; this is not accurate. Therefore, the same score does not allow for any differentiation between individuals. As a result, the input data are not accurate, and the end results will be inconclusive.

Id.

      When an award fails to contain factual findings necessary to assess an arbitrator's legal conclusions, and the findings cannot be derived from the record, the case will be remanded to the parties for resubmission to the arbitrator, absent settlement, so that the requisite findings can be made. See, e.g., United States Dep't of Defense, Defense Logistics Agency, Defense Distr. Depot, New Cumberland, Pa, 58 FLRA 750, 756-57 (2003) (remanding award where arbitrator failed to make pertinent factual findings); accord United States Dep't of Transp. Fed. Aviation Admin., Wash., D.C., 55 FLRA 322, 328 (1999). Here, nothing in the record provides a basis for the Authority to determine whether the 20-year credits were consistent with § 351.504(d), as the Agency claims. Consequently, we remand this issue to the parties for resubmission to the Arbitrator, absent settlement, for further findings, consistent with § 351.504(d).

3.      The Award Does Not Violate Management's Rights To Direct and Assign Employees

      When an exception alleges 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) of the Statute. See United States Small Bus. Administration, 55 FLRA 179, 184 (1999) (SBA). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See SBA, 55 FLRA at 184. Under prong I of this framework, 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 contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id.

      The Agency claims the award violates its rights under § 7106(a)(2) to direct and assign employees. The award directs the Agency to assign the four grievants to their pre-RIF positions. Longstanding Authority precedent holds that the right to assign employees includes the right to assign employees to positions. See AFGE, AFL-CIO, 2 FLRA 604, 613 (1980). Therefore, the award affects management's right to assign employees.

      The Agency also claims that the remedies awarded excessively interfere with its management rights. The Authority applies the excessive interference test under prong I of the BEP framework to determine whether a contract provision enforced in arbitration was negotiated under § 7106(b)(3) of the Statute. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 58 FLRA 109 (2002). However, the award in this case enforces OPM RIF regulations, not a contract provision and, therefore, the excessive interference test is inapplicable. [n4]  Furthermore, the Authority has held that an award affecting management rights under § 7106(a)(2) of the Statute will satisfy prong I of the BEP framework if it provides a remedy for a violation of an applicable law. See United States [ v61 p801 ] Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690-91 (1999). The Authority recently held that the regulations set forth in 5 C.R.R. Part 351 are applicable laws within the meaning of § 7106(a)(2) of the Statute. [n5]  See AFGE, Local 1441, 61 FLRA 201, 207 (2005) (Chairman Cabaniss concurring). Consequently, because the award enforces OPM's RIF regulations, it satisfies prong I of the BEP framework. Furthermore, as the Agency does not except to the award under prong II of the BEP framework, we do not address this requirement, and we deny the Agency's exception. See Nat'l Labor Relations Board, 61 FLRA 154, 161 (2005) (Member Armendariz dissenting as to other matters).

B.      The Arbitrator Did Not Exceed His Authority

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Army, Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997).

      The Agency argues that the Arbitrator exceeded his authority by making additional findings and ordering remedies after he found that the RIF was not a sham. However, the Arbitrator framed the issue in terms of whether the RIF "was properly managed and executed . . . ." Award at 19. The Arbitrator did not confine the issue to any one aspect of the RIF. As such, the issue framed is broad enough to encompass both the propriety of the RIF in general, e.g., whether the RIF was a sham, as well as the specific actions taken during the RIF, e.g. whether specific RIF actions and assignments were proper. Although the Arbitrator found that the RIF, as a whole, was not a sham, he expressly found that specific "mistakes were made" in running the RIF. Id. at 89. This finding is directly responsive to the framed issue of whether certain RIF actions were "properly . . . executed[.]" Id. at 19; see, e.g., AFGE, Local 1203, 55 FLRA 528, 530 (1999) (arbitrator did not exceed authority by resolving framed issue where issue did not specify applicable procedures). Consequently, the Agency has not demonstrated that the Arbitrator exceeded his authority.

V.     Decision

      We conclude that the grievance is not barred by § 7116(d) of the Statute. We deny the Agency's exceeded authority exception as well as its exception that the award violates management's rights. The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, to make further factual findings and conclusions as follows: (1) whether all employees were properly credited with 20 additional years of service for RIF purposes based on their performance ratings, in accordance with § 351.504(d) of OPM's regulations and (2) whether, based on his finding as to question one, an appropriate remedy is warranted. The remainder of the award restoring two grievants to their pre-RIF positions will remain intact because the Agency did not except to the Arbitrator's finding and resulting remedy.


APPENDIX

Relevant Provisions
of the Agreement

Article III - Rights and Obligations

Section 1. Mutual Rights and Obligations

a.      In the administration of all matters covered by this Agreement, officials and employees are governed by existing and future laws and regulations of appropriate authorities, including policies set forth by the Office of Personnel Management and by published regulations and policies of the Department of the Air Force in existence at the time the Agreement is approved which are appropriate in accordance with Public Law 95-454. The requirements of this Section apply to all supplemental, implementing, subsidiary, or informal Agreements between the Employer and the Union...

e.      The Employer and the Union recognize this Agreement as the basis for Labor-Management relations and that each has the responsibility to consult with the other prior to implementation of major changes in accepted practices, policies, or procedures that would effect members of the Unit and to negotiate the impact on bargaining Unit employees.

f.      The Employer and the Union agree that all provisions of the Agreement and of applicable laws, Executive Orders, and regulations shall [ v61 p802 ] be applied fairly and equitably to all employees in the Unit.

Section 2. Management Rights and Obligations

a.      Management officials retain the right in accordance with the applicable laws to determine the mission, budget, organization, number of employees, and internal security practices; and to hire, assign, direct, layoff and retain employees, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; to assign work; to make determinations with respect to contracting out, and to determine the personnel by which operations shall be conducted; with respect to filling positions, to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source; and to take whatever actions may be necessary to carry out the agency mission during emergencies. The Employer agrees that the Union retains the right to negotiate conditions of employment except policies, practices and matters relating to prohibited political activities, the classification of any position or any matter specifically provided for by Federal conditions of employment if written counterproposals are not received within a reasonable amount of time after the Union is notified and in receipt of notification.

Article XII - Reduction in Force

Section 1. The Employer agrees to notify the Union in advance of reductions-in-force in which member of the Union will likely lose grade or pay, the reasons for the reductions, effective date, and the number of positions involved. Upon request of the Union, and after the data has (sic.) been determined, but prior to implementation, the Employer agrees to inform the Union of the competitive levels affected and the number of employees affected in each level.
Section 2. Reduction-In-Force will receive full attention of Management to minimize work force impact. The broadest competitive levels possible will be used in order to place the maximum number of employees in competition.
Section 3. Any reduction in personnel shall be achieved where possible by restricting recruitment and promotion and by meeting ceiling limitations through normal attrition. When feasible employees in surplus positions shall be reassigned to vacant positions for which they qualify. If such vacancies exist at both Maxwell and Gunter the employee will be given an opportunity to express a preference which shall be given consideration.
Section 4. Subject to the Federal Personnel Manual, the Employer will seek to obtain a waiver of qualification requirements when deemed feasible by management in order to place an employee affected by reduction-in- force in a vacancy. The Employer will determine whether the vacancy will be diluted to a lower level prior to offering it to the affected employee. If the employee accepts the lower level position, the employee will received (sic.) preferential treatment, when the employee becomes fully qualified under current directives, until such time as the employee's grade or position reaches the same level as that held at the time of the original reduction- in-force.
Section 5. A reasonable offer for the purpose of grade and pay retention will be governed by Title VIII CSRA, FPM BTN 536-1, and applicable agency directives and shall include, but not be limited to, the offer of a position, the grade of which is equal to or higher than the retained grade and a permanent full time position (except as provided in FPM 536-1), one for which the employee is qualified and in the same commuting area (except as provided in FPM-536-1).
Section 6. The Union will be notified and informed of any programs for employees affected by reduction-in- force or programs directed under authority of Title VIII, subsection 5364, of the Civil Service Reform Act. Upon such notification the provisions of Article III, section 3e shall apply.



Footnote # 1 for 61 FLRA No. 159 - Authority's Decision

   The record does not contain all of the provisions of Articles III and XII. However, some of the relevant language is set forth on pages 20-22 of the award, which are attached as an appendix to this decision. As relevant here, Article III covers rights and obligations of the parties generally and Article XII concerns RIFs.


Footnote # 2 for 61 FLRA No. 159 - Authority's Decision

   We note that the Agency does not except to the Arbitrator's finding that two grievants were entitled to "be restored to the same employment status held prior to the RIF" because they continued performing their pre-RIF duties in their post-RIF positions. Award at 89. As such, we will not address this portion of the award.


Footnote # 3 for 61 FLRA No. 159 - Authority's Decision

   We note that the grievance alleges the Agency violated the parties' agreement by not providing employees who had received RIF notices copies of the retention registers. Although this issue is similar to the Union's ULP charge that the Agency repudiated the parties' agreement by not providing the Union with retention registers, it is not factually the same. See Agency's Attachment at 10 of RD's Decision. In this regard, the ULP concerns the Agency's alleged failure to provide the Union with retention registers before any RIF notices were issued, see id. at 3, while the grievance concerns an alleged failure to provide