[ v45 p1226 ]
The decision of the Authority follows:
45 FLRA No. 123
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Roger P. Kaplan filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator found that the Agency violated a provision of Public Law 100-440, entitled "Treasury, Postal Service and General Government Appropriations Act, 1989," by failing to hire 50 Federal Protective Officers (FPOs) each fiscal year until it reached a prescribed staffing level of 1000 FPOs. Despite the finding of a violation, the Arbitrator declined to order a remedy as requested by the Union. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievance pertains to the Agency's alleged failure to abide by Pub. L. 100-440 which, as relevant here, provides as follows:
Sec. 10 The Administrator of General Services is authorized and directed to hire up to and maintain an annual average of not less than one thousand full-time equivalent positions for Federal Protective Officers. This shall be accomplished by increasing staff levels at the end of the fiscal year 1988 at a rate of not less than fifty positions per year until the full-time equivalency of one thousand is attained by not later than fiscal year 1992.
When the parties could not resolve the dispute, it was submitted to arbitration. The Union requested that the Arbitrator direct the Agency to comply with the law and "apply a status quo ante remedy regarding the core cities implementation until such time as the Agency complie[s] with this Public Law." Award at 3. 1/
The Arbitrator framed the issues as follows:
1. Is the grievance arbitrable?
2. Did the Agency violate Section 10 of Public
3. If so, did this violation adversely affect
members of the [Union's] bargaining unit?
4. If so, what should the remedy be?
Id. at 1.
The Arbitrator first rejected the Agency's claim that the dispute was not arbitrable. In reaching this result, the Arbitrator examined the relevant portions of the parties' collective bargaining agreement and the pertinent sections of the Statute. He found that Article 2, section 1 of the agreement provides that the parties "'shall be governed by existing or future laws.'" Id. at 7. He further found that the language of Article 34, section 2 of the agreement permits the filing of grievances over "'any claimed violation, misinterpretation, or misapplication of any law . . . affecting conditions of employment.'" Id. Further, the Arbitrator noted that "[t]he broad scope of the grievance procedure [under the Statute] renders a presumption in favor of arbitrability." Id. On the basis of these authorities, and noting that the Union had alleged a violation of law, the Arbitrator concluded that the grievance was arbitrable.
The Arbitrator then addressed whether the Agency had violated Pub. L. 100-440. The Arbitrator found that the language of section 10 was "clear and unambiguous[,]" and that it directed the Agency to hire 50 FPOs each year until a staffing level of 1000 FPOs was reached by the end of fiscal year 1992. Id. at 9. The Arbitrator also found that the parties were in agreement concerning the fact that the Agency did not hire 50 FPOs every year since Pub. L. 100-440 was enacted and that the Agency did not fulfill the congressional directive to maintain a workforce of 1000 FPOs. The Arbitrator examined the Agency's testimony concerning why it had failed to comply with the hiring requirement and why the total complement of FPOs employed by the Agency had diminished. Among the reasons advanced, the Arbitrator cited the asserted lack of congressional funding after 1989, the disparity in salaries between FPOs and their private sector counterparts, and the effect of the Anti-Deficiency Act, 31 U.S.C. § 1341, on the Agency's expenditures of funds. The Arbitrator weighed these contentions against the Union's assertions that Congress had appropriated the funds necessary for the implementation of the law, and that the Agency had the discretion within its budget to hire 1000 FPOs but failed to do so due to "the inaction of officials within the Agency." Id.
After taking these arguments into consideration, the Arbitrator concluded that the Agency violated Pub. L. 100-440 by failing to fulfill the law's hiring requirements. In so finding, the Arbitrator rejected the Agency's assertion that the lack of appropriated funds excused its failure to comply with the hiring requirements. Rather, the Arbitrator found that this contention "only provides an excuse as to why Public Law 100-440 was violated." Id.
In determining an appropriate remedy, the Arbitrator found that the violation of law did not have any adverse effect on bargaining unit employees. The Arbitrator noted the Union's assertion that the violation resulted in the reassignment of bargaining-unit employees pursuant to the core cities program. However, he concluded it would be inappropriate to grant the Union's request for a status quo ante remedy. The Arbitrator stated that under section 7106 of the Statute, the Agency has the unilateral right to reassign employees and that he "lack[ed] the authority to infringe upon such a clearly defined management right." Id. at 10. The Arbitrator also found that because the Statute and Article 3 of the parties' collective bargaining agreement give the Agency an unfettered right to decide upon the number of FPOs within its workforce, any adverse effect on the bargaining unit due to the Agency's violation of Pub. L. 100-440 could not result in a substantive remedy to the Union.2/ In addition, the Arbitrator noted that the parties had, in fact, negotiated and reached agreement over the impact and implementation of the reassignment of FPOs. Finally, the Arbitrator concluded that he could not direct the Agency to hire additional FPOs because such an order would cause the Agency to violate the Anti-Deficiency Act.
III. Positions of the Parties
A. Union's Exception
The Union asserts that the award is deficient because the Arbitrator misinterpreted the management rights provision of the Statute. The Union claims that while the Arbitrator found that the Agency violated section 10 of Pub. L. 100-440, the Arbitrator further found that management had an unfettered right under section 7106 of the Statute and Article 3 of the parties' agreement to determine the number of FPOs within its workforce. The Union argues that the Agency does not have an unfettered right to exercise its management rights and that "[t]here are three (3) areas in which Congress put restraint[s] on [m]anagement rights under [section 7106 of the Statute]." Exception at 3. The Union asserts that the restraints placed on the exercise of management's rights include compliance with law, and negotiations over both the procedures and appropriate arrangements for employees adversely affected by the exercise of management's rights. The Union also argues that the Arbitrator's interpretation of the management rights section of the Statute is inconsistent with the Authority's holding in U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 43 FLRA 147 (1991) (Aerospace Center).
Further, the Union argues that the Agency's violation of Pub. L. 100-440 created an adverse effect on bargaining unit employees. Specifically, the Union asserts that the only reason employees were reassigned was because of the insufficient number of FPOs in the core cities. The Union argues that if the Agency had complied with the law, "the adverse effect would not have occurred." Exception at 5. The Union asserts that the Arbitrator had the authority to order the Agency to comply with the law and that a status quo ante remedy would be proper under the circumstances. Consequently, the Union requests that the Authority "remand this case to the Arbitrator to provide a remedy in view of the violation." Id.
B. Agency's Opposition
The Agency contends that the award is not contrary to law and that the Arbitrator correctly found that management was legally entitled under section 7106(a) of the Statute to reassign FPOs under its core cities program. The Agency also asserts that the Arbitrator was correct in finding that he had no legal authority to order the Agency to hire additional FPOs to reach the 1000 target level set forth in Pub. L. 100-440. The Agency claims that such an order would violate the Anti-Deficiency Act and would directly interfere with management's right to determine its budget under section 7106(a)(1) of the Statute.
With respect to the Union's claim that there was a bargaining obligation under section 7106(b)(2) and (3) of the Statute, the Agency maintains that the Arbitrator correctly found that the Agency bargained over the impact and implementation of its core cities reassignment program. Thus, it asserts that the Arbitrator "considered the issue of arrangements and . . . concluded that [the Agency] met its obligations." Opposition at 5. As to bargaining over procedures, the Agency argues that an order directing the Agency to hire an additional 350 FPOs in order to comply with section 10 of Pub. L. 100-440 would directly interfere with management's rights and "is clearly not a procedure as the Authority defines the term." Id.
Finally, the Agency asserts that if the Arbitrator committed an error it was in finding that Pub. L. 100-440 "had legal effect beyond fiscal year 1989." Id. at 6. In this regard, the Agency claims that this law fails to meet the General Accounting Office's test for determining when a provision in an appropriations act may be considered permanent legislation. The Agency asserts that the legislative history of the law demonstrates that it "was intended to be temporary legislation with no force or affect [sic] beyond fiscal year 1989." Id. at 8. 3/
IV. Analysis and Conclusions
We interpret the Union's exception as an assertion that the award is contrary to law. For the following reasons, we find that the Union has failed to establish that the award is deficient. Consequently, we will deny the exception.
First, we reject the Union's contention that the Arbitrator incorrectly interpreted section 7106 of the Statute. While the Arbitrator described management's right to determine the number of FPOs within its workforce as unfettered, it is apparent from his decision that he was cognizant of the Agency's obligation to bargain over procedures and appropriate arrangements. Thus, the Arbitrator specifically found that the Agency had fulfilled its obligations under section 7106(b)(2) and (3) of the Statute when it bargained over the impact and implementation of the core cities reassignment program. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's reasoning and conclusions and provides no basis for finding the award deficient. See, for example, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina and American Federation of Government Employees, Local 3347, 43 FLRA 87, 95-96 (1991) (disagreement with arbitrator's interpretation of contractual bargaining rights provided no basis on which to find award deficient).
The Union's claim that the Arbitrator's award is inconsistent with Aerospace Center is misplaced. In that case, we stated that where a contract provision is a reiteration of the management rights provision of the Statute the Authority will examine an award to ensure that the interpretation of the provision is consistent with the Statute. The Union has not established that the award here is in any manner inconsistent with the Statute.
Next, we find no basis on which to grant the Union's request that we remand this case to the Arbitrator to provide a remedy for the violation of Pub. L. 100-440. The Arbitrator specifically found that he could not provide a remedy directing the Agency to comply with that law because such an order would cause the Agency to violate the Anti-Deficiency Act. The Union did not except to this finding. In fact, the Union made no arguments that the Arbitrator could issue a remedy ordering the Agency to hire FPOs that would not be inconsistent with the Anti-Deficiency Act. See generally, American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 41 FLRA 73, 80 (1991) (proposed matter found not inconsistent with the Anti-Deficiency Act because proposal required that funds necessary to provide administrative leave to employees be appropriated before the proposal was effectuated). See also Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988) (Authority rejected exception that award was contrary to Anti-Deficiency Act insofar as award did not obligate agency to pay any monies to employees). Moreover, the Union has not shown that the granting of any remedy was required by Pub. L. 100-440 or any other authority. See, for example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 462-64 (1991) (arbitrator not obligated to provide a remedy for a violation of merit system principles).
The Arbitrator also addressed the Union's requested status quo ante remedy. The Arbitrator essentially found that there was no obligation to bargain over the decision to reassign employees and that the Agency had fulfilled its bargaining obligation when it negotiated over the impact and implementation of the core cities program. The Union has not established that the Arbitrator's refusal to grant a status quo ante remedy in these circumstances was deficient or warrants an order remanding this case to the Arbitrator.
The Union's exception is denied. The Agency's exception is dismissed as untimely.
(If blank, the decision does not have footnotes.)
1/ The core cities concept was developed by the Agency to reassign personnel, among other things, to fill critical vacancies in "cities [that] had inadequate staffing" in order for the Agency to fulfill its security and law enforcement responsibilities. Award at 6.
2/ Article 3 of the agreement entitled "Management Rights" provides:
Section 1. Statutory Rights
In accordance with 5 U.S.C. 7106, the Employer
retains the right:
1. To determine the mission, budget, organization,
number of employees, and internal security
practices of the agency[.]
Award at 2.
3/ The Agency's contention regarding the continued effect of Pub. L. 100-440 essentially constitutes an exception to the Arbitrator's award. Because the exception was not filed within the time period applicable to the filing of exceptions, it will be dismissed. See, for example, American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs Medical Center, Richmond, Virginia, 39 FLRA 1045, 1047-48 (1991) (dismissing an untimely exception included in a party's opposition).