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



[ v02 p249 ]
02:0249(29)AR
The decision of the Authority follows:


 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