47:0355(27)AR - - Agriculture, Forest Service, Region 6 and NFFE, Forest Service Council - - 1993 FLRAdec AR - - v47 p355



[ v47 p355 ]
47:0355(27)AR
The decision of the Authority follows:


47 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

REGION 6

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

FOREST SERVICE COUNCIL

(Union)

0-AR-2344

_____

DECISION

April 8, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an exception to an award of Arbitrator Philip Kienast 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 denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by implementing procedures to place surplus employees. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

On or about August 2, 1991, the Agency notified the Union of its intent to downsize its staff through the identification of surplus positions. Pursuant to Article 32 of the parties' collective bargaining agreement, which governs the placement of surplus employees, the Union submitted proposals concerning the impact and implementation of the Agency's decision.(*) The local parties bargained over the proposals in September 1991, and sent the unresolved issues to the national parties for further negotiations. The national parties resolved some of those issues and returned the remaining issues to the local parties for additional negotiations. On October 8, 1991, the local parties signed a Memorandum of Agreement (MOU) with respect to all but five issues, which they agreed would "be left for future dispute resolution." Award at 4.

On November 1, 1991, the Union filed a grievance alleging that the Agency violated Article 32 of the parties' agreement in the manner in which it implemented matters relating to the surplus positions. Subsequently, the Union filed an unfair labor practice charge alleging that the Agency violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing its "policies regarding implementation of Article 32." Id. at 5. The charge was dismissed by the Authority's Regional Director on the basis that the Union had initially raised the dispute under the negotiated grievance procedure and, therefore, the issue was barred from consideration as an unfair labor practice under section 7116(d) of the Statute.

The grievance was not resolved and was submitted to arbitration. In the absence of a stipulation by the parties, the Arbitrator framed the issue as follows:

Did the Employer violate the Agreement in the way it implemented procedures to place surplus employees?

If yes, what is the appropriate remedy?

Id. at 1.

The Arbitrator found that the Agency did not violate the agreement and that there was "no evidence that the [Agency's] implementation policy in any way contradicted any clear and express provisions of Article 32." Id. at 7-8. In reaching this result, the Arbitrator addressed a number of Union contentions regarding the Agency's ability to implement policies under Article 32 despite the outstanding issues that had not been agreed to as a part of the MOU. The Arbitrator rejected the Union's argument that the dispute over the remaining issues had to be resolved through negotiations. The Arbitrator found no evidence that the Union requested further negotiations or that the Agency had an obligation to continue to bargain over its decision to implement its policies with respect to surplus positions.

The Arbitrator further found that the Union had acted in accordance with the parties' agreement by utilizing the dispute resolution processes of the agreement, including the negotiated grievance procedure. Noting that the contractual definition of a grievance includes "a complaint concerning the 'effect or interpretation, or claim of a breach, of a collective bargaining agreement[,]'" the Arbitrator concluded that the Agency was not barred from implementing its policies under Article 32 prior to reaching agreement with the Union. Id. at 6, quoting Article 9 of the parties' agreement.

The Arbitrator also found that Article 32, section 10 of the agreement represented a clear agreement that the Agency was free to reassign employees as long as it exercised its discretion in good faith and in a manner that was not arbitrary, capricious or discriminatory. However, the Arbitrator noted that the Agency was required to implement procedures that were consistent with Article 32, sections 1-9 and resort to its authority under section 10 "only if those procedures fail to meet the best interests of the [Agency]." Id. at 7.

In this case, the Arbitrator found that the parties agreed to give "surplused employees" placement alternatives and adopted procedures for doing so. Although the parties did not resolve all the disputed issues regarding the impact and implementation of the Agency's decision, the Arbitrator determined that the manner in which the Agency clarified and implemented its plan was not arbitrary, capricious or discriminatory and, therefore, did not violate the provisions of Article 32. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union's Exception

The Union contends that the award is deficient because the Arbitrator failed to address the underlying issue of the grievance--namely, whether implementation of the Agency's policies with respect to surplus positions violated the parties' agreement. The Union claims that the Arbitrator's failure to address this issue was based on the invalid assumption that when parties bargaining in the Federal sector do not reach agreement through negotiation, their duty to bargain can be met by good faith participation in their grievance procedure. The Union maintains that the Arbitrator erroneously determined that the only way for the parties to resolve a negotiation dispute in this case is for the Agency to implement its plan and for the Union to grieve the Agency's action as arbitrary and capricious.

The Union further contends that the Arbitrator's assumption is contrary to section 7119(b) of the Statute. That section provides, in relevant part, that if voluntary arrangements fail to resolve a negotiation impasse, either party may request the services of the Federal Service Impasses Panel (the Panel) or the parties may agree to adopt a procedure for binding arbitration of the impasse, upon approval by the Panel. In this regard, the Union claims that in "early January [1992]," it requested the services of the Panel and, therefore, the Agency could not implement its plan until the Panel acted. Exceptions at 1.

In sum, the Union argues that by failing to address the threshold issue of whether implementation of the Agency's policies violated the parties' agreement, the Arbitrator's award is deficient. The Union requests that the Authority remand the case to the Arbitrator for a decision on whether "the fact of implementation" violated the parties' agreement. Id. at 2.

B. The Agency's Opposition

The Agency contends that the Arbitrator addressed the issue of whether the implementation of its plan violated the parties' agreement. In this regard, the Agency claims that the Arbitrator found that the parties bargained over the Agency's intent to implement the provisions of Article 32 and that they concluded those negotiations upon signing the MOU. The Agency argues that the Arbitrator further found that although some issues remained unresolved, the Union properly invoked the contractual grievance procedure in challenging the Agency's decision to implement its policies. Consequently, the Agency asserts that the Arbitrator did not substitute the grievance procedure for the negotiation process.

Contrary to the Union's contention, the Agency maintains that the Arbitrator's award was not based on a misperception of the negotiation process in the Federal sector or an assumption that is contrary to section 7119(b) of the Statute. The Agency explains that the Arbitrator was provided with the text of the Statute, copies of the unfair labor practice charge and related documents. In addition, the Agency claims that the Arbitrator was aware of the Union's request for assistance from the Panel. The Agency notes that in connection with these procedures, the unfair labor practice charge was dismissed and the Panel declined to assert jurisdiction over the dispute. Accordingly, the Agency contends that the Union's exception constitutes mere disagreement with the Arbitrator's findings and, therefore, that it fails to establish that the award is deficient.

IV. Analysis and Conclusions

We construe the Union's claim that the Arbitrator failed to determine whether implementation of the Agency's decision to identify surplus positions violated the parties' agreement as a contention that the award fails to draw its essence from that agreement. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See American Federation of Government Employees, National Immigration and Naturalization Service Council, Local 2012 and U.S. Immigration and Naturalization Service, Eastern Region, 45 FLRA 329, 334 (1992).

The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the parties' agreement under any of the tests set forth above. The Arbitrator found that the issue before him was whether the Agency violated the parties' agreement in the manner in which it implemented procedures to place surplus employees. The Arbitrator found that in compliance with Article 32, the parties entered into negotiations concerning the impact and implementation of the Agency's decision to identify surplus positions. While finding that the parties had not resolved every issue resulting from these negotiations, the Arbitrator concluded that the Agency did not violate the agreement by implementing its decision upon the signing of the MOU. In our view, nothing in the Arbitrator's interpretation of Article 32 of the parties' agreement is irrational, unfounded or implausible. Moreover, and contrary to the Union's assertion, the Arbitrator did not fail to address "the fact of implementation . . . ." Exception at 2. The Arbitrator specifically addressed the Agency's implementation of its policies in the face of issues that remained unresolved following the execution of the MOU. As to those issues, which the parties agreed would be left to future dispute resolution, the Arbitrator found that the negotiated grievance procedure provided a mechanism for their resolution. We find that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such an exception provides no basis for finding the award deficient. See, for example, id.

We also find no merit to the Union's contention that the award is contrary to section 7119(b) of the Statute. We note that the Agency commenced implementation of its policies regarding surplus employees upon the signing of the MOU in October 1991. At that time, the Union had not requested the services of the Panel and, in fact, did not make such a request until January 1992. Consequently, there was no proceeding before the Panel that, under the Statute, would have required the Agency to maintain the status quo pending resolution of the matter before the Panel. See, for example, American Federation of Government Employees, General Committee and U.S. Department of Health and Human Services, Social Security Administration, 40 FLRA 584, 591 (1991). Moreover, we note that there was no allegation that the Agency implemented its policies while the matter was pending before the Panel. Rather, the issue before the Arbitrator was whether the Agency's conduct violated the provisions of the parties' agreement. The Arbitrator found no such violation and concluded that there was nothing in the agreement that precluded the Agency from implementing its policies. Consequently, we conclude that the Union has not established that the Arbitrator's interpretation of the agreement was inconsistent with the Statute.

Accordingly, we will deny the exception. In light of our conclusion, we find no basis on which to grant the Union's request that the case be remanded to the Arbitrator.

V. Decision

The Union's exception is denied.

APPENDIX

Article 32 Surplus Employee Placement

1. The identification of positions surplus to the needs of the Forest Service is a Management responsibility. This Article provides the procedures to be used in the placement of surplus employees. Management will provide the Union an opportunity to negotiate on the adverse impacts and implementation and will inform the Union of any changes. Negotiations will be in accordance with Article 11.

2. Definition: A surplus employee is a permanent employee in an unfunded position, or an employee in a position scheduled to be abolished.

3. Identification of Surplus Employees: When one or more unfunded positions have been identified among a group of positions within a competitive area and competitive level (Article 35, Section 10) being involved, Management will identify surplus employees in the following order:

a. employees wishin