American Federation of Government Employees, Local 3957, Council of Prison Locals (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Oakdale, Louisiana, (Agency)

[ v61 p841 ]

61 FLRA No. 168

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3957
COUNCIL OF PRISON LOCALS
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
OAKDALE, LOUISIANA
(Agency)

0-AR-3992

_____

DECISION

October 24, 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 Louise B. Wolitz 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 Agency's exceptions.

      The Arbitrator denied a grievance alleging that the Agency's conduct with respect to an EEO settlement agreement violated the collective bargaining agreement. For the reasons discussed below, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The Agency terminated an employee in the position of Correctional Officer, GS-05. As part of an EEO settlement agreement, the Agency reinstated the employee, appointing him to the position of Time and Leave Clerk, Grade GS-05. When the Union became aware of the circumstances of the EEO settlement agreement, the Union filed a grievance.

      In the grievance, the Union alleged that its rights were violated when: (1) the Union was not afforded an opportunity to be present during the EEO settlement discussions; (2) the Union was not given a copy of the settlement agreement; and (3) the Time and Leave Clerk position was removed from the roster of positions on which the employees bid quarterly under Article 18, Section d. See Award at 5, 6. The Union claimed that the Agency's actions violated the parties' agreement and constituted a "ULP." Id. at 6. As a remedy, the Union requested "a copy of the Judge's order" to determine whether the rights of bargaining unit employees were violated by the reinstatement of the employee as a Time and Leave Clerk and whether the Judge had the authority to violate the rights of bargaining unit employees. Id. at 6.

      The record indicates that, at the arbitration hearing, the Union presented witnesses and the Agency did not. However, each party made an opening statement and submitted a post-hearing brief.

      The parties were unable to stipulate the issues for resolution. See id. at 4-5. The Arbitrator found the issues in this case to be as follows:

Did the Agency violate the Master Agreement when the Union was not afforded an opportunity to be present at the EEO settlement negotiations with [a bargaining unit employee], when the Union was not given a copy of the settlement agreement, or when the [Time and Leave] [C]lerk position was removed from the roster of positions for which employees bid quarterly under Article 18, Section d? If so, what should the remedy be?

Id. at 5.  [n1] 

      First, the Arbitrator determined that the Union failed to prove that its rights were violated when it was not afforded an opportunity to be present at the EEO settlement negotiations. The Arbitrator found that there was no language in the parties' agreement that mandates Union involvement in EEO settlement negotiations and that the Arbitrator did not have the authority to add language to the agreement that would mandate such Union involvement. See id. at 13.

      The Arbitrator also rejected the Union's reliance on a memorandum dated January 26, 1999, issued by the General Counsel of the FLRA to the regional directors of the FLRA. The memorandum was entitled, "Subject: Guidance on Applying the Requirements of the Federal Service Labor-Management Relations Statute to Processing Equal Employment Opportunity Complaints and Bargaining over Equal Employment Opportunity Matters." Id., Attachment 4. The Arbitrator [ v61 p842 ] found that, although the memorandum "favors" union presence at EEO settlement negotiations, there is nothing in the memorandum that "mandates" union presence at EEO settlement negotiations. Id. at 13.

      Next, the Arbitrator determined that the Union was not entitled to receive a copy of the EEO settlement agreement. The Arbitrator noted that the terms of the settlement agreement "contain confidentiality provisions[,]" and that the settlement agreement was not offered as evidence at the hearing. Id. The Arbitrator also found that the Agency was within its rights to protect the confidentiality of the settlement agreement because the disclosure of an EEO settlement agreement is prohibited by the Privacy Act, 5 U.S.C. § 552a. Id. In support, the Arbitrator cited Fed'l Aviation Admin., N.Y. Tracon, Westbury, N.Y., 51 FLRA 115 (1995) (Tracon). [n2] 

      In reaching her determination that the Union was not entitled to receive a copy of the EEO settlement agreement, the Arbitrator also stated that the Agency was obligated "to inform the Union clearly about the existence of the settlement agreement" and "there should have been no confusion about whether it was a judge's order or a settlement agreement[.]" Award at 14. The Arbitrator added that, if the Agency had informed the Union "clearly" about the existence of the settlement agreement, then "the Union would not have filed this grievance." Id.

      Finally, the Arbitrator determined that, as a result of the Agency reinstating the employee as a Time and Leave Clerk to settle his EEO claim, the Agency had the right, under Article 18, Section d, to unilaterally remove that position from the roster of available assignments on which employees are given the opportunity to bid. [n3]  In this regard, the Arbitrator found that the "[e]mployer" is responsible for "providing th[e] roster with notice of assignments, days off, and shifts that are available for which employees will be given the opportunity to submit their preference requests." Id. The Arbitrator further found that the Union did not provide any evidence or argument that, once a position is on the roster, the Agency cannot unilaterally remove it. See id. The Arbitrator reasoned that "[i]f a position can be unilaterally removed from the roster by the [e]mployer, by not including it among the available assignments, then that position could have been removed and given to [the employee] even without an EEO settlement agreement." Id. Consequently, the Arbitrator found that the Agency had no duty to bargain over the removal of the Time and Leave Clerk position from the roster. See id.

      The Arbitrator added that the Union offered "no evidence or argument" that a member of the bargaining unit was harmed by the removal of the Time and Leave Clerk position from the roster. Id. The Arbitrator found that the Time and Leave Clerk position was vacant when the Agency placed the EEO claimant in that position and that indicates that "no one had bid on it at that time." Id. The Arbitrator rejected the Union's argument that the removal of the position "meant one less assignment on which employees could bid." Id. The Arbitrator found that "the Union has argued no entitlement to any particular number of assignments[.]" Id.

      Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator "did not comprehend the grievance and the remedy." Exceptions at 1. The Union argues that "[t]he grievance was very specific in accusing the [A]gency [of] failing to bargain or failing to allow the exclusive bargaining unit representative . . . to be present [at settlement negotiations] to ensure the rights of all other employees were not violated [by the settlement] agreement." Id. at 2. The Union also argues that the Arbitrator erred in finding that the memorandum dated January 26, 1999, issued by the General Counsel of the FLRA to the regional directors of the FLRA was non-mandatory with respect to union presence at EEO settlement negotiations. See id. The Union asserts that, "no agency has the right to reach settlement agreements in an EEO decision without the representative of the bargaining unit present." Id. at 1. (emphasis omitted).

      Next, the Union contends that the award is inconsistent with the collective bargaining agreement. The Union contends that the Arbitrator erred in determining that, as a result of the Agency reinstating the employee as a Time and Leave Clerk to settle his EEO claim, the Agency had the right, under Article 18, Section d, to unilaterally remove, without bargaining, that position from the roster of available assignments on which employees are given the opportunity to bid. See id. [ v61 p843 ]

      The Union adds that, contrary to the Arbitrator's findings, the Union proved that employees were harmed by the removal of the Time and Leave Clerk position from the roster. See id. The Union asserts that the Time and Leave Clerk position is a "correctional post" and a position on which employees did not have the opportunity to bid. See id. at 2. The Union also asserts that it offered evidence that a Secretary position was abolished as a result of the Agency appointing the employee to Time and Leave Clerk position. See id. at 1-2.

B.      Agency's Opposition

      The Agency asserts that the Union has not clearly articulated the statutory ground on which its exceptions are based. Nevertheless, the Agency construes the Union's exceptions as claims that the Arbitrator exceeded her authority by failing to resolve an issue submitted to arbitration and that the award is based on nonfacts. The Agency maintains that the Union has not established that the Arbitrator exceeded her authority or that the award is based on nonfacts. The Agency asserts that the Union's exceptions constitute mere disagreement with the award and do not establish that the award is deficient.

IV.     Analysis and Conclusions

A.      The Arbitrator Did Not Exceed Her Authority

      The Union contends that the Arbitrator "did not comprehend the grievance and the remedy." Exceptions at 1. The Union argues that "[t]he grievance was very specific in accusing the [A]gency [of] failing to bargain or failing to allow the exclusive bargaining unit representative . . . to be present [at settlement negotiations] to ensure the rights of all other employees were not violated [by the settlement] agreement." Id. at 2. We view this contention as an allegation that the Arbitrator exceeded her authority by failing to address whether the Agency's actions toward the Union with respect to the EEO settlement agreement constituted unfair labor practices under the Statute. Arbitrators exceed their authority when, among other things, they fail to resolve an issue submitted to arbitration. See, e.g., Association of Civilian Technicians, New York State Council, 60 FLRA 890, 891 (2005) (Association of Civilian Technicians). In this case, we agree with the Union that the Arbitrator did not address whether the Agency's actions toward the Agency with respect to the EEO settlement agreement constituted unfair labor practices under the Statute. However, we conclude that the Union fails to establish that in not addressing whether the Agency committed any unfair labor practices, the Arbitrator exceeded her authority.

      The parties in this case were unable to stipulate the issues for resolution. The Arbitrator framed the issues in this case, as follows:

Did the Agency violate the Master Agreement when the Union was not afforded an opportunity to be present at the EEO settlement negotiations with [a bargaining unit employee], when the Union was not given a copy of the settlement agreement, or when the [Time and Leave] [C]lerk position was removed from the roster of positions for which employees bid quarterly under Article 18, Section d? If so, what should the remedy be?

Award at 5.

      In these circumstances, the Arbitrator properly confined herself to determining whether the Agency violated the agreement. In the absence of a stipulation that also included the issue of whether the Agency committed any unfair labor practices, the Arbitrator was not obligated to address and resolve whether the Agency's actions with respect to the EEO settlement agreement violated the Statute. See Association of Civilian Technicians, 60 FLRA at 891 (where, in the absence of a stipulation of issues by the parties, the arbitrator framed the issue in terms of a violation of the collective bargaining agreement, the arbitrator was not obligated to address whether the agency's actions violated law).

      Moreover, because the Arbitrator was not obligated to address and resolve whether the Agency's actions towards the Union with respect to the EEO settlement agreement between the Agency and an employee violated the Statute, the Union's claim that the Agency's conduct constituted unfair labor practices provides no basis for finding the award deficient. See id. (Authority determined that union failed to show how award confined to interpreting the parties' agreement was contrary to law).

      Accordingly, we deny this exception.

B.      The Award is Not Deficient as Inconsistent with the
          Memorandum Issued by the General Counsel

      We construe the Union's contention that the Arbitrator erred in finding that the memorandum dated January 26, 1999, issued by the General Counsel of the FLRA to the regional directors of the FLRA was non-mandatory with respect to union presence at EEO settlement negotiations, as a claim that the award is contrary to law. [ v61 p844 ]

      Under § 7122(a) of the Statute, an award is deficient if it is contrary to any law. 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.

      The memorandum was entitled, "Subject: Guidance on Applying the Requirements of the Federal Service Labor-Management Relations Statute to Processing Equal Employment Opportunity Complaints and Bargaining over Equal Employment Opportunity Matters." Award at 13, Attachment 4. We note that by its express terms, the memorandum establishes guidance to regional directors of the FLRA regarding certain rights under the Statute, and does not address whether all collective bargaining agreements must establish a similar contractual entitlement. We find that the memorandum itself does not constitute a law within the meaning of § 7122(a) of the Statute on which exceptions to an arbitration award can be predicated. See NAGE, Local R3-10, 51 FLRA 1265, 1271-72 (1996); Oklahoma City Air Logistics Command, Tinker Air Force Base, 34 FLRA 568, 572 (1990). Therefore, the Union's contention that the award is contrary to the memorandum issued by the General Counsel provides no basis for finding the award deficient. [n4] 

      Accordingly, we deny this exception.

C.     The Award Does Not Fail to Draw its Essence from the
         Agreement.

      The Union contends that the Arbitrator erred in determining that, as a result of the Agency reinstating the employee as a Time and Leave Clerk to settle his EEO claim, the Agency had the right under the agreement to unilaterally remove, without bargaining, that position from the roster of available assignments on which employees are given the opportunity to bid. See Exceptions at 1. We construe the Union's argument to be that the award fails to draw its essence from Article 18, Section d. of the parties' agreement.

      To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Article 18, Section d concerns the establishment and implementation of quarterly rosters for correctional services employees. Article 18, Section d (2) provides, in pertinent part, as follows:

[T]he Employer will ensure that a blank roster for the upcoming quarter will be posted in an area that is accessible to all correctional staff, for the purpose of giving those employees advance notice of assignments, days off, and shifts that are available for which they will be given the opportunity to submit their preference requests.

      As found by the Arbitrator, Article 18, Section d, does not preclude the Agency from filling a position and thus making it unavailable for assignment through the roster. See Award at 14. The Arbitrator further found that the Union did not provide any evidence or argument that, once a position is on the roster, the Agency cannot unilaterally remove it. See id. In these circumstances, the Union has not demonstrated that the Arbitrator's finding that, as a result of the Agency reinstating the employee as a Time and Leave Clerk to settle his EEO claim, the Agency had the right, under Article 18, Section d, to unilaterally remove that position from the roster is irrational, unfounded, or implausible, or that it evidences a manifest disregard for the agreement. Therefore, we find that the Union has not shown that the award fails to draw its essence from the parties' agreement.

      Accordingly, we deny this exception.

D.     The Award is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry [ v61 p845 ] AFB). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). In addition, an arbitrator's interpretation of a collective bargaining agreement cannot be challenged on nonfact grounds. See, e.g., United States DOD, Educ. Activity, Arlington, Va., 59 FLRA 806, 808 (2004) (DODEA) (citation omitted).

      The Union challenges the Arbitrator's finding that no member of the bargaining unit was harmed by the removal of the Time and Leave Clerk position from the roster. Assuming that this finding is properly characterized as "factual," it was disputed by the Union at arbitration and in its post-hearing brief, see Award at 8, 9, and, consequently, cannot be challen