Equal Employment Opportunity Commission and EEOC Council of Locals No. 216, American Federation of Government Employees

 2 FLRA No. 29
 
 MR. LEROY B. CURTIS, CHIEF
 LABOR-MANAGEMENT RELATIONS BRANCH
 DIVISION OF PERSONNEL
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 2401 E STREET, NW., ROOM 3214
 WASHINGTON, D.C.  20506
 
                       RE:  EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
                            AND EEOC COUNCIL OF LOCALS NO. 216, AMERICAN
                            FEDERATION OF GOVERNMENT EMPLOYEES (DALY,
                            ARBITRATOR), FLRC No. 78A-174
 
 DEAR MR. CURTIS:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
  /1/
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS CASE AROSE WHEN THE
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (THE AGENCY) ISSUED A
 MEMORANDUM
 CONCERNING A "MANAGEMENT ACCOUNTABILITY SYSTEM" (MAS) WHICH WAS TO BE A
 KEY ELEMENT IN THE REORGANIZATION OF THE AGENCY.  THE UNION REQUESTED A
 MEETING TO DISCUSS NEGOTIATIONS ON THE IMPACT OF THE NEW SYSTEM,
 EXPRESSING PARTICULAR CONCERN WITH THE IMPACT OF PROCEDURES FOR
 EVALUATING PERFORMANCE OF UNION OFFICIALS WHO ARE AUTHORIZED TO PERFORM
 LABOR RELATIONS DUTIES DURING WORKING HOURS.  SUBSEQUENTLY, HAVING NOT
 RECEIVED AN ANSWER TO ITS LETTER REQUESTING IMPACT NEGOTIATIONS, THE
 UNION FILED A GRIEVANCE.  THE MATTER ULTIMATELY WAS SUBMITTED TO
 ARBITRATION.
 
    THE ARBITRATOR FIRST DETERMINED THAT THE GRIEVANCE WAS ARBITRABLE AND
 WAS PROPERLY AND TIMELY FILED UNDER THE RELEVANT TERMS OF THE PARTIES'
 NEGOTIATED AGREEMENT.  HE THEN CONCLUDED THAT THE AGENCY HAD VIOLATED
 ARTICLE 6, SECTIONS A AND F, /2/ AND ARTICLE 7, SECTION D, /3/ OF THE
 PARTIES' AGREEMENT, AND THAT IT HAD PARTIALLY VIOLATED ARTICLE 14,
 SECTION A /4/ OF THE AGREEMENT.
 
    HIS AWARD, INSOFAR AS IS RELEVANT HEREIN, WAS AS FOLLOWS:  /5/
 
    THE PARTIES MUST INITIATE FORMAL IMPACT NEGOTIATIONS IMMEDIATELY ON
 THE PERFORMANCE
 
    STANDARDS INHERENT IN THE MAS.  (UNION RELIEF REQUEST #1)
 
    THE AGENCY MUST CEASE AND DESIST ALL BARGAINING UNIT EMPLOYEE
 EVALUATION RATING SYSTEMS
 
    THAT TAKE FACTORS INTO CONSIDERATION THAT DIFFER FROM THOSE
 CONSIDERED BEFORE DECEMBER 1,
 
    1977, FOR FIELD OFFICES AND OCTOBER 25, 1977, FOR HEADQUARTERS EEOC.
 (UNION RELIEF REQUEST
 
    #6)
 
    THE AGENCY REQUESTED THE FEDERAL LABOR RELATIONS COUNCIL TO ACCEPT
 ITS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD ON THE GROUNDS
 DISCUSSED BELOW.  THE UNION DID NOT FILE AN OPPOSITION.
 
    THIS MATTER WAS PENDING BEFORE THE COUNCIL ON DECEMBER 31, 1978. IN
 ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES OF THE FEDERAL
 LABOR RELATIONS AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
 RULES OF PROCEDURE OF THE COUNCIL, 5 C.F.R. PART 2411(1978), REMAIN
 OPERATIVE WITH RESPECT TO ALL ARBITRATION CASES PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978, SUCH AS THE PRESENT CASE, EXCEPT THAT THE
 WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD
 "COUNCIL" APPEARS IN SUCH RULES.
 
    PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THIS EXCEPTION THE AGENCY ASSERTS
 THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN GRANTING THE UNION THE
 RELIEF IT REQUESTED, BY ORDERING THE PARTIES TO NEGOTIATE ON A MATTER
 NOT INCLUDED IN THE UNION REQUEST FOR RELIEF, BY CHANGING THE MEANING
 AND INTENT OF THE PARTIES IN CERTAIN PROVISIONS OF THE AGREEMENT, AND BY
 IGNORING CERTAIN PROVISIONS OF THE AGREEMENT IN REACHING HIS DECISION.
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED ON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE ARBITRATOR
 EXCEEDED HIS OR HER AUTHORITY.  THUS A PETITION FOR REVIEW WILL BE
 GRANTED WHERE IT APPEARS THAT THE ARBITRATOR EXCEEDED HIS OR HER
 AUTHORITY BY DETERMINING AN ISSUE NOT INCLUDED IN THE QUESTION(S)
 SUBMITTED TO ARBITRATION, LONG BEACH NAVAL SHIPYARD AND FEDERAL
 EMPLOYEES METAL TRADES COUNCIL (STEESE, ARBITRATOR), 3 FLRC 83 (FLRC NO.
 74A-40 (JAN.  15, 1975), REPORT NO. 62);  OR BY GOING BEYOND THE SCOPE
 OF THE SUBMISSION AGREEMENT, PACIFIC SOUTHWEST FOREST AND RANGE
 EXPERIMENT STATION, FOREST SERVICE, DEPARTMENT OF AGRICULTURE AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3217 (MEYERS,
 ARBITRATOR), 4 FLRC 198 (FLRC NO. 75A-4 (MAR. 18, 1976), REPORT NO.
 101);  OR BY ADDING TO OR MODIFYING ANY OF THE TERMS OF THE NEGOTIATED
 AGREEMENT, NATIONAL LABOR RELATIONS BOARD UNION AND THE GENERAL COUNSEL
 OF THE NATIONAL LABOR RELATIONS BOARD (FALLON, ARBITRATOR), 5 FLRC 286
 (FLRC NO. 76A-90 (APR. 21, 1977), REPORT NO. 124).
 
    IN THIS CASE, HOWEVER, THE AGENCY'S PETITION FAILS TO DESCRIBE FACTS
 AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION.  IN THIS REGARD, THE
 ASSERTION RAISED BY THE AGENCY IN SUPPORT OF ITS EXCEPTION ARE DIRECTED
 TOWARDS THE ARBITRATOR'S REASONING AND CONCLUSION IN ARRIVING AT HIS
 AWARD AND WITH HIS INTERPRETATION OF THE COLLECTIVE BARGAINING
 AGREEMENT.  IT IS WELL ESTABLISHED UNDER THE ORDER THAT IT IS THE
 ARBITRATOR'S AWARD RATHER THAN HIS CONCLUSION OR SPECIFIC REASONING THAT
 IS SUBJECT TO CHALLENGE.  PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION, MEBA, AFL-CIO AND FEDERAL AVIATION ADMINISTRATION,
 DEPARTMENT OF TRANSPORTATION (WALT, ARBITRATOR), FLRC NO. 78A-25 (AUG.
 3, 1978), REPORT NO. 153. IT IS FURTHER WELL ESTABLISHED THAT THE
 INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO THE
 ARBITRATOR'S JUDGMENT AND MAY NOT BE CHALLENGED UPON APPEAL.  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2649 AND OFFICE OF
 ECONOMIC OPPORTUNITY (SISK, ARBITRATOR), 2 FLRC 288, 292 (FLRC NO.
 74A-16 (DEC. 5, 1974), REPORT NO. 61);  LABOR LOCAL 12, AFGE (AFL-CIO)
 AND U.S. DEPARTMENT OF LABOR (MALLET-PREVOST, ARBITRATOR), 3 FLRC 569,
 572 (FLRC NO. 75A-36 (SEPT. 9, 1975), REPORT NO. 82).
 
    AS TO THE AGENCY'S ARGUMENTS IN SUPPORT OF THIS EXCEPTION CHALLENGING
 THE REMEDY FORMULATED BY THE ARBITRATOR, IT IS ALSO WELL ESTABLISHED
 UNDER THE ORDER THAT ARBITRATORS HAVE DISCRETION IN FASHIONING REMEDIES
 SO LONG AS THOSE REMEDIES DO NOT VIOLATE APPLICABLE LAW, APPROPRIATE
 REGULATION OR THE ORDER.  FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
 TRANSPORTATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
 (SCHEDLER, ARBITRATOR), 3 FLRC 451 (FLRC NO. 74A-88 (JULY 24, 1975),
 REPORT NO. 78).  THEREFORE, THE AGENCY'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE RULES OF PROCEDURE.
 
    IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT
 OF THIS EXCEPTION, THE AGENCY REFERS TO VARIOUS PROVISIONS OF THE
 PARTIES' AGREEMENT AND DESCRIBES HOW THE AGENCY'S INTERPRETATION THEREOF
 WOULD HAVE LED TO DIFFERENT CONCLUSIONS FROM THOSE REACHED BY THE
 ARBITRATOR.
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED ON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE NEGOTIATED AGREEMENT.  NAGE LOCAL R8-14 AND
 FEDERAL AVIATION ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA (STRATTON,
 ARBITRATOR), 3 FLRC 475 (FLRC NO. 74A-38 (JULY 30, 1975), REPORT NO.
 79).  HOWEVER, IN THIS CASE THE AGENCY'S EXCEPTION IS NOT SUPPORTED BY
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN ITS PETITION.  RATHER, THE
 AGENCY APPEARS TO BE DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION
 AND APPLICATION OF THE AGREEMENT PROVISIONS AT ISSUE AND HIS REASONING
 IN CONNECTION THEREWITH.  AS PREVIOUSLY INDICATED, SUCH ASSERTIONS DO
 NOT PROVIDE A BASIS FOR ACCEPTING A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD.  THEREFORE, THE AGENCY'S SECOND EXCEPTION PROVIDES
 NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE RULES OF PROCEDURE.
 
    IN ITS THIRD EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD IS
 AMBIGUOUS AND CONTRADICTORY TO THE POINT THAT IMPLEMENTATION OF THE
 AWARD IS IMPOSSIBLE.  HOWEVER, IN ITS PETITION FOR REVIEW, THE AGENCY
 DOES NOT DESCRIBE ANY FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.
 
    IT IS WELL ESTABLISHED UNDER THE ORDER THAT A PETITION FOR REVIEW OF
 AN ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTION TO
 THE AWARD PRESENTS THE GROUND THAT THE AWARD IS INCOMPLETE, AMBIGUOUS OR
 CONTRADICTORY SO AS TO MAKE IMPLEMENTATION OF THE AWARD IMPOSSIBLE.
 HEADQUARTERS, WESTERN AREA MILITARY TRAFFIC MANAGEMENT COMMAND AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1157 (GRODIN,
 ARBITRATOR), 5 FLRC 692, 697 (FLRC NO. 77A-57 (AUG. 2, 1977), REPORT NO.
 133).  HOWEVER, IN THIS CASE THE AGENCY HAS FAILED TO DESCRIBE ANY FACTS
 AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION.  A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WILL NOT BE GRANTED WHERE THE PETITION FAILS TO SET
 FORTH ANY SUPPORT FOR THE EXCEPTION PRESENTED.  AIRWAY FACILITIES
 DIVISION, FEDERAL AVIATION ADMINISTRATION, EASTERN REGION AND NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R2-10R (KRONISH, ARBITRATOR),
 3 FLRC 547, 549 (FLRC NO. 75A-50 (AUG. 15, 1975), REPORT NO. 82).
 THEREFORE, THE AGENCY'S THIRD EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE
 OF ITS PETITION UNDER THE RULES OF PROCEDURE.
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.  THE AGENCY'S REQUEST FOR A STAY OF THE
 AWARD IS ALSO DENIED.  /6/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  E. WATKINS
 
    NAT'L COUNCIL OF EEOC LOCALS
 
    /1/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.
 
    /2/ ARTICLE 6, SECTIONS A AND F, OF THE PARTIES' AGREEMENT PROVIDES:
 
    SECTION A.  THE EMPLOYER SHALL IN NO WAY RESTRAIN, INTERFERE WITH,
 COERCE OR DISCRIMINATE
 
    AGAINST DESIGNATED REPRESENTATIVES FOR THE PURPOSE OF COLLECTIVE
 BARGAINING, HANDLING
 
    GRIEVANCES AND APPEALS, FURTHERING EFFECTIVE LABOR-MANAGEMENT
 RELATIONSHIPS, OR ACTING IN
 
    ACCORDANCE WITH APPLICABLE REGULATIONS AND AGREEMENTS ON BEHALF OF AN
 EMPLOYEE OR GROUP OF
 
    EMPLOYEES WITHIN THE BARGAINING UNIT.
 
    THE UNION AGREES NOT TO ENCOURAGE THE FILING OF GRIEVANCE WITHOUT
 JUST CAUSE.
 
    SECTION F.  IT IS RECOGNIZED THAT DURING THE LIFE OF THIS AGREEMENT
 CHANGES IN LAW,
 
    REGULATION OF APPROPRIATE AUTHORITY OR DECISIONS OF APPROPRIATE
 AUTHORITIES MAY NECESSITATE
 
    CHANGES IN PERSONNEL POLICIES, PRACTICES OR OTHER MATTERS AFFECTING
 WORKING CONDITIONS.  WHEN
 
    THE LAWS OR REGULATIONS LEAVE ADMINISTRATIVE DISCRETION TO THE
 EMPLOYER IN THE IMPLEMENTATION
 
    OF THE REQUIRED CHANGES, IT WILL CONSULT WITH THE UNION.
 
    /3/ ARTICLE 7, SECTION D OF THE AGREEMENT PROVIDES, IN RELEVANT PART:
 
    SECTION D.  UNION STEWARDS . . . SHALL REPRESENT ALL EMPLOYEES
 REGULARLY ASSIGNED WITHIN
 
    THE UNIT AND MAY RECEIVE AND INVESTIGATE THEIR COMPLAINTS OR
 GRIEVANCES DURING DUTY HOURS.  IT
 
    IS REQUIRED THAT UNION STEWARDS ARE EXPECTED TO BE JUDICIOUS IN THE
 TIME SPENT ON SUCH
 
    MATTERS.  REASONABLE TIME DURING WORKING HOURS, WITHOUT LOSS OF LEAVE
 OR REGULAR PAY, WILL BE
 
    ALLOWED UNION STEWARDS FOR PERFORMING THEIR DUTIES AS LISTED IN THIS
 SECTION AND FOR
 
    ATTENDANCE AT MEETINGS WITH SUPERVISORS OR MANAGEMENT OFFICIALS.
 
    /4/ ARTICLE 14, SECTION A OF THE AGREEMENT PROVIDES:
 
    SECTION A.  PERFORMANCE REQUIREMENTS WILL BE ESTABLISHED IN WRITING
 BASED ON THE EMPLOYEE'S
 
    OFFICIAL POSITION.  IN THE CASES OF NEWLY ASSIGNED EMPLOYEES OR
 SUPERVISORS, THE SUPERVISOR
 
    AND THE EMPLOYEE WILL DISCUSS THE POSITION DESCRIPTION AND WITHIN
 SIXTY (60) DAYS WILL
 
    ESTABLISH THE PERFORMANCE REQUIREMENTS.
 
    SIMILAR DISCUSSIONS BETWEEN THE SUPERVISOR AND THE EMPLOYEE WILL ALSO
 TAKE PLACE WHEN A
 
    SIGNIFICANT CHANGE OCCURS IN THE DUTIES AND RESPONSIBILITIES OF THE
 POSITION DESCRIPTION.
 
    /5/ OTHER PORTIONS OF THE ARBITRATOR'S AWARD ARE NOT AT ISSUE IN THIS
 CASE.
 
    /6/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. -1491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OR RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.