46:0862(76)CA - - OK City Air Logistics Center, OK City, OK and AFGE Local 916 - - 1992 FLRAdec CA - - v46 p862

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[ v46 p862 ]
The decision of the Authority follows:

46 FLRA No. 76









(Charging Party)



December 4, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to implement the terms of an arbitration award regarding the use of official time. The Judge found that the Respondent complied with the award and recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, except as noted below.

II. Background

An employee occupying the position of division level steward sought official time to represent employees outside his organizational area pursuant to section 4.07 of the parties' collective bargaining agreement.(1) His supervisor granted him a maximum of 6 hours of official time per pay period, regardless of the number of employees he represented during each pay period. The employee argued that the contractual cap on official time entitled him to 6 hours of official time per pay period for each employee represented. The employee filed a grievance regarding the Respondent's interpretation of section 4.07 of the parties' agreement. As the Judge noted in his decision, the parties' agreement contains various grievance procedures depending on whether a grievance is denominated an employee grievance, a Union grievance, or an employer grievance. The Judge found that the employee's grievance was processed "as an individual grievance." Judge's Decision at 2.

The grievance was not resolved and was submitted to arbitration. The parties did not jointly stipulate the issue to be presented to the arbitrator. Under the terms of the parties' agreement, the arbitrator was empowered to frame the issue based on statements submitted by each party. Additionally, the agreement limited the arbitrator to deciding only those issues contained in the formal grievance.

The arbitrator framed the issue as one of contract interpretation. The arbitrator found that section 4.07 of the parties' agreement was ambiguous in terms of how grants of official time were to be capped, and resolved the grievance in favor of the Union's interpretation. Accordingly, the arbitrator concluded that section 4.07 required that the Respondent separately cap the "steward's pay" on an individual case basis.(2) General Counsel Exhibit 2 at 5.

No exceptions were filed to the award. Accordingly, it became final and binding under section 7122(b) of the Statute. Subsequently, the Respondent applied the arbitrator's award only to the grievant and continued to apply its own interpretation of section 4.07 to other stewards. Upon learning of the Respondent's limited application of the award, the Union asked the Respondent to join in a request for clarification of the award. The Respondent refused to do, so stating that, in its view, the award did not need clarification. There is no evidence in the record that the Union separately sought clarification. Instead, the Union filed an unfair labor practice charge.

III. Administrative Law Judge's Decision

After noting the parties' varying interpretations of the arbitrator's award, the Judge stated that the test for determining whether an agency has committed an unfair labor practice by failing or refusing to comply with an arbitration award is that set forth in United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA 71, 72 (1987) (IRS, Austin). The Judge stated that under the IRS, Austin test, the adequacy of the Respondent's compliance with the award must be determined by the reasonableness of the Respondent's construction of the award. The Judge also explained that, under the test, "an agency will rarely . . . commit an unfair labor practice if the award is ambiguous and the agency applies it in a manner that is arguably consistent with its meaning." Judge's Decision at 5. The Judge found that the Respondent complied with the arbitrator's award because its construction of that award was reasonable.

In reaching this conclusion, the Judge rejected the General Counsel's contention that the award was clear and unambiguous on its face. Instead, the Judge found that the award was not "so clear" and that, as a result, it was appropriate to examine the nature of the underlying grievance as well as the award itself. Judge's Decision at 5. In doing so, the Judge looked at the scope of the requested remedy and found that it was personal to the grievant. The Judge noted that arbitrators normally do not grant relief to nongrievants despite the fact that there may be other employees similarly situated to the grievant. The Judge also looked to generally accepted principles of arbitration and found that the Respondent's construction of the arbitration award was "consistent with a labor relations professional's understanding of 'how arbitration works' and is not inconsistent with the language of the award seen in the light of that understanding." Id. at 7 (footnote omitted), quoting Elkouri and Elkouri, How Arbitration Works, (4th ed. 1985).

Based on his finding that the Respondent's construction of the award was reasonable, the Judge concluded that the Respondent had complied with the award. Consequently, he recommended that the complaint be dismissed.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel contends that the Judge erred by: (1) applying a less rigorous standard for compliance with the arbitration award than is required by IRS, Austin; (2) admitting into evidence and considering the underlying grievance file; and (3) concluding that the Respondent complied with a final and binding arbitration award.

With respect to its first contention, the General Counsel argues that the Judge failed to apply the standard of reasonableness set forth in IRS, Austin in determining whether the Respondent complied with the arbitration award. Instead, the General Counsel claims that the Judge only required that the Respondent's construction of the award be "arguably consistent" with its meaning. Exceptions at 10, quoting Judge's Decision at 5. The General Counsel maintains that any interpretation of an arbitration award may be arguable, but that not every interpretation is reasonable. In the General Counsel's view, the IRS, Austin test requires a higher threshold for the Respondent to meet than does the Judge's test.

The General Counsel further contends that the Judge improperly admitted the file and testimony of the Respondent's witness concerning the underlying grievance. The General Counsel states that the Authority does not permit substantive review of the underlying grievance file during an unfair labor practice proceeding arising out of alleged noncompliance with an arbitration award. According to the General Counsel, the subject matter of a grievance and the scope of an award are issues that must be submitted to an arbitrator and are not reviewable by a judge in an unfair labor practice proceeding. The General Counsel maintains that such limitations on arbitral review are necessary to prevent a party from presenting arguments it failed to make during an arbitration hearing or in timely exceptions to an award.

Finally, the General Counsel maintains that by considering arguments outside the scope of the arbitration award, the Judge erred in concluding that the Respondent's construction of the award was reasonable. The General Counsel notes the arbitrator's statement that he was resolving a matter of future contract interpretation and contends that, when the award is examined in its entirety, it is clear that the arbitrator was fashioning an award to govern the allocation of official time for the entire steward system and not solely for the individual grievant. The General Counsel maintains that the Respondent's application of the award is neither reasonable nor consistent with the entire award, as required under IRS, Austin. Accordingly, the General Counsel requests that the Authority find that the Respondent committed an unfair labor practice by failing and refusing to comply with a final and binding arbitration award.

B. Respondent's Opposition

The Respondent contends that the Judge properly applied IRS, Austin in determining that the Respondent's construction of the award was reasonable. The Respondent claims that where, as here, an arbitrator's award is ambiguous and susceptible to differing interpretations, an agency may not be faulted for failing to comply with such an award. Rather, the Respondent maintains that the adequacy of its compliance with the award depends on whether its construction of the award was reasonable. In this regard, the Respondent claims that it reasonably believed that the scope of the award was limited to the individual grievant. The Respondent adds that "if either party were to look exclusively at the award . . . neither party would be able to determine an adequate interpretation of that award." Opposition at 7. Additionally, the Respondent maintains that if the arbitrator had expanded his award to cover nongrievants, the Respondent would have been compelled to file an exception to the award because the Authority has held that "an arbitrator exceeds his or her authority when he or she awards relief to employees who did not grieve or who did not have the union file grievances for them." Opposition at 11, quoting United States Army Academy of Health Sciences, Fort Sam Houston, Texas and National Federation of Federal Employees, Local No. 28, 34 FLRA 598, 600 (1990). The Respondent argues that it was reasonable for it to assume that the arbitrator did not intend to render an award that was outside the scope of his authority.

The Respondent also contends that the Judge did not improperly admit the underlying grievance file and related testimony. According to the Respondent, the Judge did not substantively review the underlying grievance but, rather, considered only so much of the grievance as was necessary to determine whether the Respondent's construction was reasonable. The Respondent maintains that the Judge properly concluded that the Respondent's construction of the award was reasonable and that it complied with the final and binding arbitration award.

V. Analysis and Conclusions

For the following reasons, we adopt the Judge's conclusion that the Respondent complied with the arbitrator's award and that it did not commit an unfair labor practice, as alleged. Accordingly, we will dismiss the complaint.

First, we agree with the Judge's finding that the award was ambiguous. Examining the award itself, it is not clear whether the award was intended to apply only to the grievant or to other, similarly situated stewards as well. For example, we note that the grievant was specifically identified, by name, as the division level steward who filed the grievance. There was no reference to other stewards who were also grieving the Respondent's application of the disputed agreement provision or to the Union filing the grievance on behalf of its stewards. In addition, the actual award refers to a cap on the "steward's" use of time, indicating the applicability of the award to the lone grievant.(3) On the other hand, the arbitrator defined the grievance as involving future contract interpretation, suggesting that such an interpretation was to apply to all stewards invoking that provision of the parties' agreement.

We also agree with the Judge's finding that the Respondent's construction of the award was reasonable. In reaching that result, we note that in IRS, Austin, the Authority stated that "the adequacy of compliance with an arbitration award will be determined by whether the Respondent's construction of the award is reasonable, which would depend on whether the construction is consistent with the entire award and consistent with applicable rules and regulations." 25 FLRA at 72. Compare United States Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 44 FLRA 1306 (1992), and U.S. Department of the Air Force, Carswell Air Force Base, Texas, 38 FLRA 99 (1990) (Authority found that a failure to comply with an unambiguous award was a viol