United Power Trades Organization (Union) and United States Department of the Army, U.S. Army Corps of Engineers (Agency)

[ v62 p493 ]

62 FLRA No. 90

UNITED POWER
TRADES ORGANIZATION
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
(Agency)

0-AR-4149

_____

DECISION

June 19, 2008

_____

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 Marvin L. Schurke filed by the Union under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. The Union subsequently filed a Motion to Strike the Agency's opposition, pursuant to § 2429.26 of the Authority's Regulations. The Agency responded to the Union's Motion to Strike.

      The Arbitrator found that Article 26.4 of the collective bargaining agreement (CBA) is "flawed" and therefore does not preclude the Agency from giving effect to a bargaining unit employee's request to terminate dues withholding. Award at 16. Consequently, the Arbitrator ordered the parties to engage in collective bargaining to correct the flaw in Article 26.4.

      For the reasons that follow, we deny the Union's Motion to Strike the Agency's opposition, and we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      Article 26.4 of the CBA provides that employees who want to terminate the withholding of union dues from their paychecks may do so after they have participated in union dues withholdings for one year. Article 26.4 also provides that the dues withholdings will not be terminated until the first pay period after January 1, regardless of when the employee submits a request to terminate.

      In March 2000, a unit employee authorized dues withholding, which was processed and implemented by the Agency two months later. In May 2005, the same employee requested that dues withholding be terminated. The Agency processed the termination request in August 2005, and terminated dues withholding the following month. The Union filed a grievance, claiming that Article 26.4 required the Agency to wait until January 2006 to terminate dues withholding in that instance. When the grievance was not resolved, it was submitted to arbitration.

      The parties were unable to agree on the issues to be decided at arbitration, and the Arbitrator framed the issues as follows:

1.      Did the parties' [CBA] preclude the employer from acting on a request for cancellation of dues deduction during or about August 2005?
2.      What is/are the appropriate next step(s) for these parties based on the outcome of Issue 1?

Award at 2-3.

      As to the first issue, the Arbitrator found that the parties' CBA did not preclude the Agency from giving effect to the employee's May 2005 request to terminate dues withholding in August 2005 because Article 26.4 of the contract is "flawed." Award at 16. In particular, the Arbitrator determined that Article 26.4 conflicts with Authority precedent prohibiting dues withholding provisions from requiring employees to pay union dues for more than one year. With regard to the second issue, the Arbitrator ordered the parties to engage in collective bargaining to correct the flaw in Article 26.4.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator's award is contrary to law, specifically §§ 7115 and 7116 of the Statute and Authority precedent, which the Union claims "mandate[] that any union dues withholdings authorization be in effect for one year intervals." Exceptions at 4 (emphasis in original). The Union claims that the Agency should have terminated the affected employee's dues withholding either in January 2006, as required by Article 26.4, or March 2006, which the Union claims is the anniversary date of the employee's authorization for dues withholding. The [ v62 p494 ] Union maintains that the Arbitrator incorrectly decided that the Agency could refuse to give effect to Article 26.4 and terminate the affected employee's dues withholdings in August 2005. According to the Union, whether the affected employee's anniversary date "is measured by reference to a date in the month of March (when he [authorized dues withholdings]) or by reference to a date in the month of January (the effective date of a revocation of dues withholdings under the [CBA]), cancelling his dues withholdings in the month of August was contrary to both the Statute and the [CBA]." Id. (emphasis in original).

      Next, the Union contends that the award fails to draw its essence from the CBA because the Arbitrator found that Article 26.4 was "flawed" without evaluating the effect of this "flaw" according to the law. Id. at 4-5. The Union argues that because the Arbitrator did not find Article 26.4 contrary to law, it is "valid and enforceable for the term of the labor contract," even if it is "flawed." Id. at 4.

      The Union also maintains that the Arbitrator's award is based on a nonfact because the Arbitrator found that the contract language at issue involved a permissive and not a mandatory subject of bargaining. According to the Union, the Authority "has consistently ruled" that union dues withholdings is a mandatory subject of bargaining. Id. at 5.

      Additionally, the Union claims that the Arbitrator failed to resolve the central question presented in the grievance, which the Union states was "whether or not management had committed an [u]nfair [l]abor [p]ractice when they unilaterally abrogated part of the labor contract and prematurely terminated the union dues withholdings of [the affected employee]." Id. The Union requests that the Authority set aside the award and order the Agency to rescind its cancellation of Article 26.4 and to make the Union whole for all dues not paid to the Union as a result of the Agency's "improper and illegal conduct." Id.

B.      Agency's Opposition

      The Agency claims that the Authority should dismiss the Union's exceptions because the Union failed to submit all pertinent documents from arbitration as required by § 2425.2 of the Authority's Regulations. Specifically, the Agency argues that the Union failed to submit two exhibits, A9 and A11, which according to the Agency support the Agency's claim that May should have been the grievant's anniversary date for dues termination.

      The Agency argues that the Arbitrator correctly determined that Article 26.4 is unenforceable because "current law does not allow a calendar date provision that is applicable to all dues payers, including those in the first year of dues withholdings." Opposition at 4. The Agency claims that it offered the Union an opportunity to bargain over the establishment of a valid dues termination provision, which the Union refused even though the Union knew that the current provision was "beyond the duty to bargain[.]" Id. at 6. Thus, the Agency argues that it had no choice but to implement an interim provision, limiting revocations to the anniversary of the payment of dues for all employees whose anniversary of their first allotment is known, and to the first pay period in January of each year if the first payment date is not known. The Agency therefore claims that terminating the affected employee's dues withholding after the submission of his cancellation request in May 2005 was appropriate given that the first week of May was the anniversary date of his first dues allotment. The Agency also disputes the Union's arguments that the award fails to draw from the essence of the agreement, does not resolve the central question of the grievance, and is based on a nonfact.

IV.     Preliminary Matters

A.     The Union's Motion to Strike is denied.

      The Union claims in its Motion to Strike that the Authority should not consider the Agency's opposition because, according to the Union, Department of Defense (DoD) regulations do not give the Portland Division of the Army Corps of Engineers the authority to file an opposition. [n1]  The Agency responds that the regulations grant the Portland Division of the Army Corps of Engineers the authority to file an opposition, noting that the opposition was specifically authorized by the DoD in this case.

      Section 2425.1(c) of the Authority's Regulations provides that an opposition to an exception to an arbitration award "may be filed by a party within thirty (30) days after the date of service of the exception." 5 C.F.R. § 2425.1(c). The United States Department of the Army, Corps of Engineers, Portland District was a named party at arbitration. Moreover, as the Agency claims, the DoD regulation relied on by the Union does not prohibit the filing of submissions by offices other [ v62 p495 ] than the primary point of contact with the Authority. Thus, under § 2425.1(c) of the Authority's Regulations, the Portland District has the authority to file an opposition to the Union's exceptions, and we deny the Union's Motion to Strike.

B.      The Union's exceptions comply with 5 C.F.R. § 2425.2.

      Section 2425.2 of the Authority's Regulations provides that:

An exception must be a dated, self-contained document which sets forth in full: (a) A statement of the grounds on which review is requested; (b) Evidence or rulings bearing on the issues before the Authority; (c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities; and (d) A legible copy of the award of the arbitrator and legible copies of other pertinent documents. (e) The name and address of the arbitrator.

5 C.F.R. § 2425.2.

      The requirements under 5 C.F.R. § 2425.2 are met where the record is sufficient to address the exceptions. United States Dep't of Agric. Food and Consumer Serv., Dallas, Tex., 60 FLRA 978, 980 (2005) (Authority found record sufficient where exceptions did not include copy of relevant portions of parties' agreement but agreement's specific language was set forth in the award). The Agency claims that the Authority should dismiss the Union's exceptions because the Union failed to submit two exhibits, A9 and A11 with its exceptions, which the Agency contends support the Agency's assertion that May should have been the grievant's anniversary date for dues termination. However, the Union attached the Agency's post-hearing brief to its exceptions, which addresses that very issue. See Exceptions Attach., Agency Post-hearing Brief at 7-11. Additionally, the Arbitrator's award also addresses the anniversary date issue. See Award at 13. Thus, the record is sufficient under § 2425.2 to address the Union's exceptions.

V.     Analysis and Conclusions

A.      The award is not contrary to law.

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, then the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. AFGE, Local 2612, 55 FLRA 483, 486 (1999).

      The Authority has interpreted § 7115(a) of the Statute as permitting employees to revoke union dues allotment at yearly intervals. Veterans Admin. Lakeside Med. Ctr., Chicago, Ill., 12 FLRA 244, 246 (1983) (citing United States Army, U.S. Army Materiel Dev. and Readiness Command, Warren, Mich., 7 FLRA 194, 198-9 (1981)). [n2]  In this connection, the Authority has held that under § 7115(a), an employee can be precluded from revoking an authorization for dues allotment for a period of one year, but cannot be precluded from revoking the authorization for a period of greater than one year. NAGE, SEIU, AFL-CIO, 40 FLRA 657, 688 (1991) (NAGE) (citing AFGE, AFL-CIO, Local 1931, 32 FLRA 1023, 1029 (1988) (dues allotment provision inconsistent with § 7115(a) because it precluded employees from revoking dues authorizations for almost two years)). Parties may define the intervals for dues revocation through negotiations as long as those intervals are consistent with § 7115(a). NAGE, 40 FLRA at 688-9; see AFGE, AFL-CIO, Dep't of Educ. Council of AFGE Locals, 34 FLRA 1078, 1082 (1990) (proposal that based effective date of revocation on the anniversary date of when deduction began found to be negotiable). However, negotiated agreements that allow for results inconsistent with § 7115(a) are contrary to law. Id.; Int'l Fed'n of Prof'l and Technical Eng'rs, Local 4, 35 FLRA 31, 41 (1990). Where an agreement is inconsistent with the law, the agreement is unenforceable. Dep't of the Navy, United States Marine Corps, 34 FLRA 635, 638-9 (1990).

      [ v62 p496 ] The Union asserts that the award is contrary to §§ 7115 and 7116 of the Statute because the Arbitrator failed to find that the Agency committed an unfair labor practice by terminating the affected employee's dues withholdings at a time that conformed to neither the requirements of the CBA nor the employee's anniversary date of joining the Union. However, here, as in NAGE, 40 FLRA at 688, the Arbitrator found that the dues allotment provision in the CBA prevented bargaining unit members from revoking their dues allotments for a period beyond one year. The Union does not dispute this interpretation of Article 26.4. Thus, consistent with NAGE, Article 26.4 is inconsistent with § 7115(a) of the Statute. Because Article 26.4 is contrary to law, the Arbitrator did not err by finding that the Agency properly terminated the affected employee's dues allotments at a time that was inconsistent with Article 26.4. See, e.g., Office of the Adjutant Gen., Ga., DoD, Atlanta, Ga., 54 FLRA 654, 666 (1998) (respondent's refusal to honor portion of agreement upheld because agreement was inconsistent with sections of DoD Appropriations Act).

      Based on the foregoing, we deny the Union's exception.

B.     The Union has not demonstrated that the award fails to draw its essence from the CBA.

      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; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union argues that the award does not draw its essence from the CBA because the Arbitrator found Article 26.4 merely "flawed," not contrary to law. Award at 16. While the Arbitrator did not use the exact language "contrary to law," he found Article 26.4 unenforceable because it could prevent employees from revoking their authorization for dues withholdings for a period of greater than one year, contrary to NAGE, 40 FLRA at 688. Thus, the Arbitrator effectively found the provision contrary to law. The Union has not demonstrated that the Arbitrator's interpretation of Article 26.4 is unfounded in reason and fact, implausible, irrational, or manifests a disregard of the agreement. Thus, the Union's exception provides no basis for finding that the award fails to draw its essence from the agreement, and we deny the exception. AFGE, Local 1749, 58 FLRA 459, 461 (2003).

C.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993).

      The Union argues that the Arbitrator's award is based on a nonfact, specifically, that the Arbitrator incorrectly found that the contract language at issue involved a permissive, rather than mandatory, subject of bargaining. The Arbitrator did not find that the contract language involved a permissive, rather than mandatory, subject of bargaining. Thus, the Union's argument is misplaced and does not demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. Accordingly, we deny the exception.

D.     The Union has not demonstrated that the Arbitrator exceeded his authority.

      The Union claims that the Arbitrator did not answer the central question of the grievance, namely "whether or not management had committed an [u]nfair [l]abor [p]ractice when they unilaterally abrogated part of the labor contract and prematurely terminated the union dues withholdings of [the affected employee]." Exceptions at 5. We construe this as a contention that the award is deficient because the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. Sport Air Traffic Controllers Org., 51 FLRA 1634, 1638 (1996); see also United States Dep't of Def., Def. Contract Audit Agency, Cent. Region, 51 FLRA 1161, 1164 (1996).

      The parties did not agree upon the issues to be determined at arbitration and, instead, agreed to allow the Arbitrator to frame the issues. See Award at 2. By doing so, the parties limited the scope of the