24:0442(47)AR - HUD and AFGE Local No. 3412 -- 1986 FLRAdec AR

 24 FLRA No. 47
 
 U.S. DEPARTMENT OF HOUSING 
 AND URBAN DEVELOPMENT
 Agency
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL NO. 3412
    Union
 
                                            Case No. 0-AR-1124
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Alred J. Goodman files by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the Agency's implementation of
 space reductions and alterations in its Jacksonville office.  As the
 office alterations began, the parties met to netotiate appropriate
 arrangements for bargaining unit employees adversely affected by the
 alterations.  When management declared most of the Union's proposals
 were not negotiable and proceeded with the alterations, the Union filed
 a grievance claiming management violated Article 36 and Article 3,
 Section 3.01 and 3.08 of the parties' collective bargaining agreement.
 The dispute was submitted to arbitration where the parties could not
 agree on a stipulation of the issues.  The Arbitrator framed the issues
 before him as follows:
 
       Did Management violate the HUD-AFGE Agreement by failing to
       bargain in good faith and by violating Article 36;  Article 3,
       Sections 3.01 and 3.08;  Article 5, Section 5.02;  the Space
       Management Handbook;  and other regulations?
 
    In framing the issues to be resolved, the Arbitrator explained that
 in its grievance the Union specifically alleged a violation of Article
 36 of the agreement and that Article 36 made pertinent the Agency's
 space management handbook, including provisions for acoustic screens.
 After considering the evidence and testimony, including testimony by
 management's director of administrative services on the use of acoustic
 screens under the space management handbook and testimony confirming
 management's offer during negotiations to use additional partitions, the
 Arbitrator ruled that management violated Article 36 of the agreement
 because acoustic screens had not been provided in accordance with the
 space management handbook.  Accordingly, as his award, the Arbitrator
 ordered as follows:
 
       Management will survey all floors occupied by HUD in Jacksonville,
       Florida, and provide free-standing acoustic screens in the ratio
       of at least one linear foot for each 30 occupiable square feet in
       accordance with Section 4-2d, consistent with the provisions of
       Section 4-3c of the Space Management Handbook No. 2216.1 dated
       November 30, 1983.
 
                              III.  EXCEPTION
 
    The Agency contends that the award is deficient because the
 Arbitrator exceeded his authority in a number of ways.  The Agency
 contends that the Arbitrator exceeded his authority by deciding the
 issue of placement of partitions because that issue was not submitted to
 arbitration.  More specifically, the Agency argues that nothing in the
 grievance suggested any dispute relating to the placement of partitions
 and that the Arbitrator's use of the claimed violation of Article 36 to
 authorize him to address the Agency's space management handbook was
 tenuous.  The Agency further argues that the Arbitrator exceeded the
 limits of his authority under the parties' collective bargaining
 agreement and that management was harmed by the issue of partitions
 being raised for the first time without warning at the arbitration
 hearing.  The Agency also contends that the Arbitrator exceeded his
 authority by rendering an award that encompasses personnel outside the
 bargaining unit.  The Agency maintains that the Arbitrator's award is
 not limited to space occupied by bargaining unit employees and claims
 that it would be impossible to limit the implementation of the award to
 the bargaining unit because of office configuration placing bargaining
 unit employees and nonbargaining unit personnel together.
 
    In its opposition the Union disagrees with the Agency.  The Union
 argues that the Article 36 claim properly authorized the Arbitrator to
 address and resolve whether management complied with its own regulations
 including the space management handbook.  The Union specifically
 disputes that the issue of partitions was raised for the first time and
 without warning at the hearing.  The Union asserts that the issue of
 partitions was extensively covered in its proposals that management
 declared nonegotiable.  The Union also specifically disputes that the
 award improperly encompasses personnel outside the bargaining unit.
 Contrary to the contention of the Agency, the Union asserts that the
 award only affects bargaining unit employees because all nonbargaining
 unit personnel already have partitions or offices.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the Arbitrator did not exceed his authority by
 resolving the issue of partitions, but that he did exceed his authority
 to the extent that his award is not limited to bargaining unit
 employees.
 
    The Authority has held that an arbitrator exceeds his or her
 authority if the arbitrator resolves an issue not submitted to
 arbitration.  For example, National Center for Toxicological Research,
 Jefferson, Arkansas and American Federation of Government Employees,
 Local 3393, NCTR, Jefferson, Arkansas, 20 FLRA No. 81 (1985).  But the
 Authority, like the Federal courts, will accord an arbitrator's
 interpretation of a submission agreement and an arbitrator's formulation
 of issues in the absence of a stipulation by the parties the same
 substantial deference accorded an arbitrator's interpretation and
 application of the collective bargaining agreement.  For example, Mobil
 Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982).
  Similarly, both the Authority and Federal courts have consistently
 emphasized the broad discretion to be accorded arbitrators in the
 fashioning of appropriate remedies.  For example, U.S. Department of
 Justice, Bureau of Prisons, Federal Correctional Institution, Lexington,
 Kentucky and American Federation of Government Employees, Local 817, 21
 FLRA No. 108 (1986);  IAM District 776 v. Texas Steel Co., 639 F.2d 279
 (5th Cir. 1981).
 
    In this case no basis is provided for finding that the Arbitrator
 exceeded his authority by resolving the issue concerning partitions.
 This contention constitutes nothing more than disagreement with the
 Arbitrator's formulation of the issue in the case in the absence of a
 stipulation by the parties and with the Arbitrator's fashioning of a
 remedy for management's violation of the agreement.  In its grievance
 the Union specifically alleged a violation of Article 36 which the
 Arbitrator found to encompass the space management handbook, including
 the provisions pertaining to placement of acoustic screens.  The
 Agency's assertion that this formulation by the Arbitrator is "tenuous"
 merely disagrees with the Arbitrator's formulation and, in view of the
 substantial deference accorded arbitrators, provides no basis for
 finding the award deficient.  The Agency also fails to establish that
 this issue was raised for the first time at the hearing or that the
 Agency was prejudiced.  The director of administrative services
 testified to management's offer during negotiations to use additional
 partitions and the Agency fails to substantiate that no proposals were
 offered by the Union relating to partitions.  Furthermore, we are unable
 to conclude that the Agency is prejudiced by the Arbitrator's remedy
 effectively ordering the Agency to comply with the acoustic screen
 provisions of its own space management handbook to the extent that the
 provisions apply.
 
    The Authority has also held that an arbitrator exceeds his or her
 authority when the arbitrator issues an affirmative order affecting
 positions and personnel beyond the scope of the matter submitted to
 arbitration.  For example, Environmental Protection Agency, Region 9 and
 Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA 365
 (1985).  In this case we find that the Arbitrator exceeded his authority
 by failing to confine his remedy to bargaining unit employees.  The
 issues submitted to arbitration were expressly confined to the parties'
 collective bargaining agreement and necessarily were focused on
 bargaining unit employees.  Consequently, the Arbitrator's award must be
 confined to bargaining unit employees.  We will modify the award
 accordingly.  In modifying the award, we find that the Agency has failed
 to establish that an award requiring the provision of acoustic screens
 to bargaining unit employees consistent with office configuration is
 impossible to implement.
 
                               V.  DECISION
 
    Accordingly, the award is modified to provide as follows:
 
       Management will survey all floors occupied by HUD bargaining unit
       employees in Jacksonville, Florida, and provide consistent with
       office configuration free-standing acoustic screens to those
       employees in the ratio of at least one linear foot for each 30
       occupiable square feet in accordance with Section 4-2d, consistent
       with the provisions of Section 4-3c, of the Space Management
       Handbook No. 2216.1, dated November 30, 1983.
 
    Issued, Washington, D.C. December 15, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY