United States Department of the Air Force, Luke Air Force Base, Phoenix, Arizona (Agency) and American Federation of Government Employees, Local 1547 (Union)

[ v62 p214 ]

62 FLRA No. 47

UNITED STATES
DEPARTMENT OF THE AIR FORCE
LUKE AIR FORCE BASE
PHOENIX, ARIZONA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1547
(Union)

0-AR-3984

_____

DECISION

October 31, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members  [n*] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator George Schatzki filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425. The Union did not file an opposition to the Agency's exceptions.

      This case concerns the meaning and application of a Memorandum of Understanding (MOU) regarding the consideration of bargaining unit candidates for position vacancies, prior to the consideration of outside candidates. For the reasons that follow, the award is modified to include only bargaining unit positions and to provide for the equal division of costs. In all other respects the exceptions are denied.

II.     Background and Arbitrator's Award

      The parties' MOU provides for the consideration of bargaining unit candidates for position vacancies prior to the consideration of outside candidates. According to the Arbitrator, the particular complaints in this case focus on decisions to select outside candidates when there were several qualified bargaining unit candidates for the vacant positions.

      The parties' MOU provides in pertinent part:

The Employer will utilize, to the fullest extent possible, the skill and talents of its bargaining unit employees. Absent higher mandatory placement priorities, qualified bargaining unit candidates must be given thorough consideration before referral of external candidates. . . . After considering the referred bargaining unit candidates, selecting officials may request an expanded list of candidates for consideration, written reasons for these requests will be provided to the Civilian Personnel Office (CPO) at the time the request is submitted. . . .

Award at 1. At the arbitration hearing, a personnelist testified that the lists of external candidates were prepared prior to selecting officials requesting the lists, but that the lists were not shared with the selecting officials until a request was made. The same personnelist also testified that "usually, perhaps almost always," selecting officials did not explain in writing their reasons for seeking the additional names. Id.

      The Arbitrator agreed with the Agency that the MOU only guarantees bargaining unit employees consideration for a position; it does not guarantee selection. The Arbitrator also found that the MOU does not prohibit the personnel staff from preparing a list of external candidates prior to a request from the selecting official; the MOU only provides that the list of external candidates is not to be shared with the selecting official until bargaining unit candidates have been considered and the selecting official then makes a request for a list of outside candidates from the personnel office. The Arbitrator then found that the Agency had failed to comply with the MOU requirement that selecting officials provide in writing the reasons for seeking additional candidates to consider for a position vacancy.

      The Arbitrator's award provided first that all selecting officials must give written reasons to the CPO when they request an expanded list of candidates. Second, the Arbitrator ordered the Agency to give the Union copies of all future written reasons offered by selecting officials to justify their requests for an expanded list of candidates. Third, the Arbitrator ordered the Agency to pay all the costs for the arbitration and reimburse the Union for the reasonable expenses and time it incurred in pursuing the relevant grievances to arbitration.

III.     Agency's Exceptions

      According to the Agency, Article XXVII, Section B of the parties' agreement provides that arbitrators cannot [ v62 p215 ] change, modify, or add to the agreement. The Agency asserts that the MOU qualifies as a supplement to the collective bargaining agreement, governed by the provision above. Accordingly, the Agency maintains that an arbitrator may not change, modify, or add to the MOU.

      The Agency contends that the Arbitrator exceeded his authority by adding to the agreement and requiring the Agency to provide the Union copies of all written requests to expand the referral lists to outside candidates. The Agency argues that neither the collective bargaining agreement nor the MOU provides for the Union to receive copies of the justifications for selecting officials to receive the lists of outside candidates. Therefore, the Agency contends that by requiring the Agency to provide the Union with copies of the selecting officials' requests for the expanded list of outside qualified applicants for vacant positions, the award impermissibly adds to the provisions of the MOU.

      The Agency next argues that the award's requirement that "`all selecting officials'" provide written reasons for requesting a list of outside qualified candidates for position vacancies, which are to be provided to the Union, exceeds the Arbitrator's authority because it extends to situations where employees not in the bargaining unit would be covered. Exceptions at 6 (quoting award at 3). The Agency asserts that the award's requirement would apply to the filling of all position vacancies, including supervisory and managerial positions that are excluded from the bargaining unit. Because the award would apply to non-bargaining unit positions, the Agency contends that the award exceeds the Arbitrator's authority.

      The Agency further contends that the award fails to draw its essence from the parties' agreement regarding the payment of arbitration fees and expenses. In particular, the Agency asserts that the parties' agreement provides that arbitration expenses are to be shared equally. In that regard, Article XXVII, Section D of the parties' agreement provides:

All costs, fees and expenses of the arbitration will be borne equally by Management and the Union unless specified differently elsewhere in this Article and the regulatory limits of arbitrator fees and expenses will be honored. These costs include the arbitrator's fees and expenses.

Exceptions at 7. The Agency maintains that the parties' agreement clearly requires the parties to equally split the costs of arbitration. Accordingly, the Agency contends that the award fails to draw its essence from the parties' agreement.

IV.     Analysis and Conclusions

A.      The Arbitrator Did Not Exceed His Authority by Requiring the Agency to Provide the Union a Copy of the Supervisor's Reasons for Requesting External Candidates

      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 persons who are not encompassed within the grievance. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). Moreover, the Authority grants an arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. See United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998).

      The Agency alleges that the Arbitrator exceeded his authority by adding to the agreement a requirement that the Agency provide the Union with a copy of each justification for an expanded referral list. In this regard, the parties' agreement requires selecting officials to provide the personnel office with the justification for the expanded list. However, it contains no specific limitation that would preclude the official from providing this information to the Union or preclude an arbitrator from ordering the Agency to take this action. See Soc. Sec. Admin., 57 FLRA 530, 537 (2001).

      The Agency makes no claim that the Arbitrator failed to resolve an issue submitted to arbitration or resolved an issue not submitted to arbitration. The Agency also points to no specific limitation in the agreement concerning the Arbitrator's remedial authority. As such, we find that the Arbitrator did not exceed his authority by requiring that the Agency provide the Union a copy of the justifications submitted by selecting officials to receive the expanded list of external candidates.

B.      The Arbitrator Exceeded His Authority to the Extent that the Order Applies to Non-bargaining Unit Positions

      An arbitrator exceeds his or her authority by failing to confine a remedy to bargaining unit employees. See, e.g., Bureau of Indian Affairs, 25 FLRA 902 , 906 (1987). In this case, the Arbitrator's award could be construed as requiring all selecting officials to give written reasons to the personnel office when they request an [ v62 p216 ] expanded list of candidates. According to the Arbitrator, "to ensure this practice, the Agency must give the Union copies of all future written reasons offered by selecting officials to justify their requests for expanded lists of candidates." Award at 3 (emphasis added).

      As set out above, the Arbitrator's award could be construed to apply to all vacancies, not just the vacancies for bargaining unit positions. Insofar as the award's requirement to provide the Union with a copy of the justification for expanding the list of candidates extends to all vacancies, this portion of the award exceeds the Arbitrator's authority.

      Where an award is deficient because it extends to non-bargaining unit employees, the Authority has modified the award to pertain only to bargaining unit positions. See Bureau of Indian Affairs, 25 FLRA at 906. Accordingly, we grant the exception as it pertains to non-bargaining unit positions and modify the award to pertain only to bargaining unit positions.

C.      The Arbitrator's Ruling that the Agency Should Bear the Full Cost of the Arbitration Fails to Draw Its Essence from the 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).

      The Authority has found that an award requiring an agency to pay all the costs and expenses of an arbitration proceeding failed to draw its essence from a contractual provision that required the arbitrator's fees and expenses to be borne equally by the parties. United States Dep't of the Air Force, United States Air Force Acad., Colorado Springs, Colo., 59 FLRA 540, 541 (2003) (Air Force Acad.) (citing United States Small Business Admin., 55 FLRA 179, 182 (1999) (SBA)).

      In this case, the Arbitrator ordered the Agency to pay all the costs of the arbitration because "the Agency's failure to comply with the `written reasons' requirement was open, continuing and deliberate." Award at 3. However, the Arbitrator's award disregards the contract language providing for equal sharing of arbitral fees and expenses. In particular, Article XXVII, Section D of the parties' agreement provides:

All costs, fees and expenses of the arbitration will be borne equally by Management and the Union unless specified differently elsewhere in this Article and the regulatory limits of arbitrator fees and expenses will be honored. These cost[s] include the arbitrator's fees and expenses.

Exceptions at 7.

      Like the agreements at issue in Air Force Acad. and SBA, this contract language does not provide any exception permitting the Arbitrator to exercise discretion in the apportionment of fees. See Air Force Acad., 59 FLRA at 541. Further, this case is unlike situations where the Authority has upheld the apportionment of fees in a manner different from that set out in an agreement. See United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, 48 FLRA 833, 837 (1993) (SSA, Hearings & Appeals) . In SSA, Hearings & Appeals, the authority found that the Arbitrator did not ignore the fee splitting provision of the agreement, because he relied on another procedural requirement in the same article of the contract to apportion costs related to witness travel.

      Unlike the arbitrator in SSA, Hearings & Appeals, the Arbitrator here ignored the parties' fee splitting agreement and awarded fees to one party based solely on the "continuing and deliberate" character of the other party's underlying contract violation leading to the grievance. Award at 3. Applying the Authority's essence standard, it is not plausible to interpret a fee splitting agreement that has no exceptions to have an exception in such cases. See DOL, 34 FLRA at 575. Permitting arbitrators to add general exceptions to such agreements where the parties have not agreed to them would eliminate the predictability that such agreements provide and could chill a party from invoking arbitration in situations where its resources are limited. As the award in this case is similar to the awards in Air Force Acad. and SBA, the award fails to draw its essence from the parties' collective bargaining agreement and is deficient under § 7122(a)(2) of the Statute.

      Therefore, we find that the Arbitrator's award as to costs is deficient under § 7122(a)(2) of the Statute because it fails to draw its essence from Article XXVII, Section D of the parties' collective bargaining agreement. We modify the award to provide for the equal sharing of costs.

V.     Decision

      The award is modified to include only bargaining unit positions and to provide for the equal division of costs. In all other respects, the exceptions are denied. [ v62 p217 ]


Chairman Dale Cabaniss, dissenting in part:

      I dissent in part from the Majority as to the finding that the Arbitrator did not exceed his authority by requiring the Agency to provide the Union with a copy of the supervisor's reasons for requesting external candidates. The Majority finds that the award does not modify the parties' MOU because "it contains no specific limitation that would preclude the official from providing this information to the Union or preclude an arbitrator from ordering the Agency to take this action", citing Soc. Sec. Admin., 57 FLRA 530, 537 (2001) (SSA).

      The contract provision in SSA addressed the rights of employees in requesting priority consideration:

"the names of employees wishing to exercise their priority consideration right in applying for a position will be referred to the selecting official prior to the referral of other qualified candidates." Id. at 531 n.2.

The arbitrator found that bona fide consideration should be in written form and transmitted to the candidate. We agreed that was a reasonable interpretation of the agreement and that the arbitrator did not exceed his authority. Id. at 537.

      Here, however, the agreement between the parties was specific as to what was required of the selecting official.

"After considering the referred bargaining unit candidates, selecting officials may request an expanded list of external candidates for consideration, written reasons for these requests will be provided to the Civilian Personnel Office (CPO) at the time the request is submitted". Award at 1 (emphasis added).

Unlike the provision in SSA, this term is specific both as to whom the written request will be provided and when it will be provided. The parties could have negotiated for a provision that required the selecting official to provide the written justification to the Union, but they did not. Accordingly, the Arbitrator's award clearly expands the terms of the agreement and imposes a condition on the Agency that was not contained in the agreement.

      The Arbitrator's finding that the Agency's actions were "deliberate and continuing" is therefore without foundation. The parties simply disagreed regarding their respective obligations under this MOU.

      I would vacate the Arbitrator's award in all respects. [ v62 p218 ]


Member Carol Waller Pope, dissenting in part:

      I dissent on only one point. In my view, the Arbitrator's determination to allocate the fees and expenses of arbitration to the Agency is indistinguishable from the arbitrator's determination to do so in United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, 48 FLRA 833, 835-39 (1993) (SSA, Hearings & Appeals). There, in the face of a contract provision allocating fees and expenses equally between the parties, the arbitrator found that the agency's violation of the parties' agreement extended the length of the arbitration hearing and, as a result, the agency should be required to pay more than half of the fees and expenses. On exception by the agency, the Authority found that the award did not fail to draw its essence from the agreement. Id. at 837. Here, also in the face of a contract provision allocating fees and expenses equally between the parties, the Arbitrator found it possible that the "arbitration matter would have proved unnecessary if the Agency had complied with the [agreement]." Award at 3. Accordingly, the Arbitrator found "that it is appropriate that the Agency pay for this entire grievance and arbitration proceeding." Id. If an agency's contract violation that merely extends the length of an arbitral proceeding survives an essence challenge, then surely an agency's contract violation that creates a need for an entire arbitral proceeding also should survive such challenge.

      The majority's insistence that the award here is unlike the award in SSA, Hearings & Appeals because the Arbitrator here "ignored the parties' fee[-]splitting agreement" evidences a misreading of both that decision and this award. Majority Opinion at 6. In SSA, Hearings & Appeals, the Authority noted the arbitrator's finding that the agency's violation of the parties' agreement prolonged the arbitrati