[ v55 p169 ]
55 FLRA No. 29
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
WRIGHT-PATTERSON AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214
January 29, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S.Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joan Ilivicky filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
II. Background and Arbitrator's Award
A. Facts Giving Rise to this Grievance
This case concerns a dispute between the American Federation of Government Employees Council 214 (hereinafter referred to as "Union") and Air Force Materiel Command (hereinafter "Agency") over the Agency's asserted failure to "skills code" lower graded work in mixed grade positions. Skills coding is described in Air Force Regulation (AFR) Section 40-230 as the coding of employees' experience for inclusion in their personnel files. The skills codes are used as a basis for training and selection for other positions. Skills coding lower graded work entails entering into the personnel data system a record that an employee performed one or more lower graded duties.
In 1992, the Union requested that the Agency bargain over skills coding of lower graded work in mixed grade positions. The Union claimed that skills coding was being done at other Air Force facilities, placing Agency employees at a disadvantage when competing for promotions. The Agency declined to bargain. Subsequently, the parties entered into negotiations in settlement of an unfair labor practice charge. In July 1996, the Agency proposed the cessation of further negotiations until Air Force Manual 36-5-5, which superseded AFR 40-230, was issued. The parties ceased negotiations until the new manual was received on August 7, 1996.
On February 11, 1997, the Union filed a Freedom of Information (FOIA) request seeking documents to ascertain whether the Agency possessed an "exception" to the Air Force's required skill coding. Award at 8. The Air Force FOIA Manager responded that no records were located.
The Union thereupon filed a grievance alleging that the Agency violated Section 12.01 of the Master Labor Agreement (MLA). [n1] The grievance was denied, and the parties referred the matter to arbitration.
B. Arbitrator's Award
The Arbitrator stated that the "two issues identified by the parties" are:
1) Was this grievance filed in a timely manner, and
2) Did the Air Force Materiel Command and its predecessor Air Force Logistics Command violate Section 12.01 of the Master Labor Agreement by denying its employees the skills coding of lower graded work in mixed grade positions, by failing to comply with Department of the Air Force Regulation and published policy? If so, what shall be the remedy?
Id. at 2. [n2]
First, the Arbitrator ruled that the grievance was timely filed and arbitrable. In reaching this result, the Arbitrator found, among other things, that the Agency was continuing to enforce a policy that was allegedly in violation of the MLA [n3] [ v55 p170 ]
Second, the Arbitrator held that the Agency was in violation of Section 12.01 of the MLA and in violation of AFR 40-230 by not skills coding lower graded work in mixed grade positions for bargaining unit members. The Arbitrator noted that Section 12.01 of the MLA requires the Agency to use the skills of the bargaining unit employee "to the maximum extent possible[.]" Award at 15. The Arbitrator found that the Agency's exclusion of lower graded work from skills coding was in direct conflict with Section 12.01.
The Arbitrator rejected the Agency's contention that there was an exception in the MLA and AFR 40-230 that permitted it to exclude skills coding for lower grade work in mixed grade positions. The Arbitrator noted, in this connection, the Agency's response to the Union's FOIA request in which the Agency stated that there was no record of any documentation supporting the existence of an exception. The Arbitrator found that the Agency had offered no proof that an exception existed. To the contrary, the Arbitrator found that the Agency had acknowledged in an August, 1993 document, that it did not uniformly perform skills coding and that it "must develop a policy." Award at 12, 17. In sum, the Arbitrator ruled that the preponderance of evidence established that no exception existed.
The Arbitrator also held that the Agency's policy of excluding skills coding for lower graded work did not create an enforceable exception to AFR 40-230 and was not an enforceable past practice. In this regard, the Arbitrator found that the policy was unilaterally established without the express or implied consent of the Union and violated Air Force policy mandating consistency within all Commands. As a consequence of its policy of excluding lower graded work for mixed grade positions, the Arbitrator concluded that the Agency had "denied promotions to bargaining unit members, placed such members in a competitive disadvantage with other Air Force personnel and failed to align the bargaining unit members with the rest of the Air Force". Award at 16.
Accordingly, the Arbitrator sustained the grievance and ordered the Agency to take the following actions: (1) incorporate skills coding of all lower graded work in mixed grade positions performed by bargaining unit members into the Agency's Data System; (2) incorporate skills coding retroactive for a period of two years from the date of the award; (3) identify bargaining unit members who were candidates for promotion during the two-year period, but were denied promotion as a consequence of the failure to incorporate skills coding in the Data System and, together with the Union, "review the status of each such candidate and jointly determine whether alternative promotion action is now appropriate"; and (4) notify, jointly with the Union, bargaining unit members of the terms and conditions of the award in the usual and customary manner employed by the parties for notification of work force changes in conditions of employment. Id. at 19.
The Arbitrator gave the parties ninety days to comply with the award. She also retained jurisdiction for a period not to exceed one year for the purpose of resolving disputes that might arise during compliance with the award.
III. The Award is Not Based on Nonfact
A. Positions of the Parties
1. Agency's Exceptions
First, the Agency contends that the Arbitrator's award is based on the nonfact that the Agency did not have an exception to AFR 40-230. [n4] As evidence that the Arbitrator "misperceived the facts," the Agency cited the testimony of witnesses who stated that the Agency had an exception to the regulation. The Agency submitted that the lack of written documentation in response to the Union's FOIA request is not conclusive evidence that the exception never existed "when juxtaposed against the sworn testimony" of Agency officials who testified that the Agency did have an exception. Exceptions at 6. Therefore, the Agency asserted that the Arbitrator committed an error when she substituted her judgment that an exception did not exist for that of Agency personnel who testified that it did.
Second, the Agency contends that the Union submitted no evidence that any specific bargaining unit employee had been harmed. Accordingly, as the award was premised on the Arbitrator's determination that bargaining unit members were aggrieved by the Agency's actions, it is based on a nonfact.
2. Union's Opposition
The Union contends that the Agency incorrectly asserts that the award is based on nonfact. The Union claims that the Agency is dissatisfied with the way the [ v55 p171 ] Arbitrator weighed the evidence, which does not constitute a basis for reversal.
B. Analysis and Conclusions
To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
It is clear that the parties disputed before the Arbitrator whether the Agency had an exception to AFR 40-230. Both the Union's witness and the Agency's witnesses testified with regard to the existence of an exception. The Arbitrator found that, notwithstanding the testimony of the Agency's witnesses, the Agency did not meet its burden of proof to support the existence of an exception. Therefore, the Agency's contention that it did in fact have an exception was disputed at arbitration, and is not a basis for finding the award deficient.
Similarly, the Agency's contention that the award is based on a nonfact, because no evidence was presented that bargaining unit employees were aggrieved by the Agency's conduct, is not a basis for finding the award deficient. [n5] The Arbitrator noted that the Union had alleged that the lack of skills coding placed employees at "an extreme disadvantage" in merit promotion competition. Award at 5. The Arbitrator also stated, "[t]he Union contends that based upon the foregoing practice of Materiel Command, members of the Union were denied promotions to mixed grade positions because skills coding did not include lower graded work." Award at 12. Therefore, it is clear that the parties disputed before the Arbitrator that bargaining unit employees were actually harmed by the Agency's action. Accordingly, the Agency has not established that the award is deficient because it is based on nonfacts.
IV. The Arbitrator Did Not Exceed Her Authority
A. Positions of the Parties
1. Agency's Exception
The Agency submits that the issue of whether individual bargaining unit employees were harmed was not properly before the Arbitrator because the grievance was brought on behalf of "Council 214, and not any specific person represented by the Union." Exceptions at 7. Therefore, the Agency argues that the Arbitration improperly awarded relief for employees and exceeded her authority. The Agency cites several Authority decisions for the proposition that an award of retroactive relief to employees must be based on a demonstrated causal nexus between the agency's action and the alleged harm. According to the Agency, the Arbitrator exceeded her authority because no evidentiary basis exists to support the conclusion that individual employees would have been selected for promotion, absent the Agency's failure to skills code work for lower grade positions.
2. Union's Opposition
The Union responds that the Arbitrator did not order specific relief for specific employees, as alleged by the Agency. Also, the Union asserts that section 7.06(a) of the parties' collective bargaining agreement grants the Arbitrator broad powers to fashion an appropriate remedy, and that the Arbitrator's direction that the Agency identify adversely affected employees falls within the scope of the agreement. [n6]
B. Analysis and Conclusions
To the extent that the Agency is raising an exception alleging that the Arbitrator exceeded her authority, we will resolve the Agency's exception on that basis.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, dis- [ v55 p172 ] regards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996). There is no clear indication in the record that the parties stipulated the issues to be resolved by the Arbitrator. See n.2. In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command Robins Air Force Base, Warner Robins, Georgia, 50 FLRA 160, 162 (1995).
In this case, the Arbitrator formulated the issues to be resolved. The second issue specifically includes the matters that the Agency claims are beyond the scope of the Arbitrator's authority. In particular, the issue is formulated in terms of whether the Agency violated the MLA and failed to comply with Air Force Regulations and published policy "by denying its employees . . . skills coding" and "[i]f so, what shall be the remedy?" Award at 2. (emphasis added). Therefore, the Arbitrator was responsive to the issue when, in determining whether the Agency violated the MLA by not complying with AFR 40-230, she addressed whether bargaining unit employees were adversely affected by not receiving skills coding for lower graded work in mixed grade positions. The Arbitrator's finding that bargaining unit members had been adversely affected and her remedy were responsive to the issue. Consequently, the Agency fails to establish that the award is deficient on the ground that the Arbitrator exceeded her authority.
V. The Award Requires Clarification
A. Positions of the Parties
1. Agency's Exceptions
The Agency contends that the Arbitrator's direction that the Agency and Union "jointly determine whether alternative promotion action is now appropriate" is contrary to 5 U.S.C. § 7106(a)(2)(C) [n7] and 5 C.F.R. § 335.103(b)(4). [n8] Exceptions at 9. The Agency states that, "[g]enerally, the statute and federal manual provide that management has the right in filling positions to select from a group of properly ranked and certified candidates for promotion or from any other appropriate source." Id. at 9-10. The Agency asserts that the Arbitrator's award provides the Union the right to participate in determining the qualifications of bargaining unit employees and whether or not they should be promoted. According to the Agency, such an arrangement excessively interferes with the exercise of a management right. The Agency cites, as authority, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52 (1992), and American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985) (Bureau of the Mint), for the proposition that union participation in the selection process violates § 7106(a)(2)(C) of the Statute. Furthermore, the Agency states that a proposal allowing an individual to play a passive role as an observer at management meetings concerning the exercise of management rights is an undue interference with the agency's decision-making process. In support, the Agency cites American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA 17 (1984).
2. Union's Opposition
The Union contends that the Arbitrator's order that the parties "jointly" determine appropriate relief for adversely affected employees does not interfere with management's reserved right to fill positions. The Union asserts that under the plain meaning of the award, [ v55 p173 ] the Agency need not take any action proposed by the Union which would interfere with its rights.
B. Analysis and Conclusions
As the exceptions involve the award's consistency with law, the Authority must review questions of law raised by the Agency's exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.
The award is susceptible to at least two different interpretations. Under one interpretation, the award affects the Agency's right to make selections under section 7106(a) of the Statute. Under the other interpretation, the award does not affect that right. Thus, in order to resolve the Agency's exception that the award is contrary to management's right, it is necessary to determine which of these interpretations comports with the Arbitrator's intention.
As relevant here, the award requires the Agency and the Union to "review the status of each [affected] candidate [for promotion] and jointly determine whether alternative promotion action is now appropriate." Award at 19. If this jointly determined alternative promotion is intended to constitute the only method by which affected candidates can be promoted, then the failure of the Agency and the Union to agree would deny the Agency its ability to promote a candidate. The award, interpreted in this manner, would affect the Agency's right to make selections for appointment.
The Authority has held that joint labor-management committees that provide for union participation in the discussions and deliberations leading to decisions involving the exercise of management's rights impermissibly interfere with the exercise of those rights. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA decision making regarding promotions. See, e.g., Bureau of the Mint, 19 FLRA at 643-45 (proposal requiring a union representative on a promotion ranking panel interfered with management's right to select under § 7106(a)(2)(C) of the Statute). Here, the joint determination ordered by the Arbitrator could be interpreted to implicate the Union in the Agency's decision making process, and the Award would affect management's right to select.
If the award is interpreted to affect management's rights, determining whether the award is deficient would necessitate application of the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. [n9]
If, on the other hand, the jointly determined alternative promotion ordered by the Arbitrator in this case is not the only process by which an affected candidate can be promoted, then a failure of the Union and Agency to agree on a promotion will not deny the Agency its authority to determine whether to make promotions. Consistent with Authority precedent, the award, interpreted in this manner, would not affect management's right to make selections for appointments.
In American Federation of Government Employees Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1443 (1992), Proposal 10 stated that the union and management were to "jointly review all requests for personnel action." The Authority determined that the proposal did not impermissibly affect management's right to select under section 7106(a)(2)(C) of the Statute. In so doing, the Authority distinguished an established agency decision-making process from the proposal's alternative proce- [ v55 p174 ] dure, which did not replace management's ability to use regular channels to unilaterally exercise its rights. Id. at 1442-43. Similarly, in this case, if the Award merely requires joint determination as to "alternate" selection procedures, thereby leaving management's regular selection prerogatives unaffected, management rights would not be violated. In this circumstance, the BEP analysis is unnecessary and the Agency's exception would be denied.
We are unable to determine from the Award whether the Arbitrator intended the jointly determined alternative process to constitute the only method by which affected candidates can be promoted. Accordingly, it is necessary to remand the award to the parties. [n10] On remand, the parties are encouraged to resolve the dispute on their own. If the dispute is not resolved, the award must be resubmitted to the Arbitrator for clarification consistent with this decision.
The Agency's exceptions that the award is based on nonfact and exceeds the Arbitrator's authority are denied. The portion of award directing the Agency to "jointly determine whether alternative promotion action is now appropriate" is remanded to the parties for resubmission to the Arbitrator, absent settlement, for clarification of the basis of the award.
Footnote # 1 for 55 FLRA No. 29
Section 12.01 of the MLA states: It is agreed that the Employer will use the skills and abilities of bargaining unit employees to the maximum extent possible consistent with mission requirements, merit principles, and applicable laws and regulations.
Award at 4.
Footnote # 2 for 55 FLRA No. 29
Given that the Arbitrator did not state that the parties stipulated to the issues, and since it is not otherwise apparent from the award that they did so, we find that the Arbitrator formulated the issues.
Footnote # 3 for 55 FLRA No. 29
Footnote # 4 for 55 FLRA No. 29
The fact that AFR 40-230 was superseded by Air Force Manual 36-5-5 has no bearing on our disposition of the issues on appeal, when neither party argued that the new regulation had any effect on the Agency's ability to comply with the award.
Footnote # 5 for 55 FLRA No. 29
To the extent the Agency also argues that the Arbitrator's award of relief for bargaining unit employees goes beyond the issue submitted to the Arbitrator, we will address this contention in the next section.
Footnote # 6 for 55 FLRA No. 29
The arbitrator's authority is limited to deciding only the issue or issues considered in the formal grievance. If the parties fail to agree on a joint stipulation of the issue for arbitration, then each shall submit a separate stipulation and the arbitrator shall determine the issue or issues to be heard. The arbitrator is empowered to fashion an appropriate remedy consistent with the terms of this contract and in accordance with applicable law, rule or regulation. Either side reserves the right to argue to the arbitrator what such an appropriate remedy should be.
Opposition, Attachment 2 at 2-3.
Footnote # 7 for 55 FLRA No. 29
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency --
. . . .
(2) in accordance with applicable laws --
. . . .
(C) with respect to filling positions,to make selections for appointments from --
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source[.]
Footnote # 8 for 55 FLRA No. 29
Requirement 4. Selection procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources, such as re-employment priority lists, reinstatement, transfer, handicapped, or Veteran Readjustment Act eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals.
Footnote # 9 for 55 FLRA No. 29
Footnote # 10 for 55 FLRA No. 29
Clarification of the award also is necessary to resolve the Agency's exception that the award conflicts with 5 C.F.R. § 335.103(b)(4), which, as set forth supra note 8, provides that management has the right to make selections for promotion.