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55 FLRA No. 50
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS
March 29, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on cross-exceptions to an award of Arbitrator Laurence M. Evans, filed by the Union and 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 Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by unilaterally changing its past practice regarding the granting of official time. The Arbitrator did not, however, extend the status quo ante remedy to the past practice of granting official time to attend Union executive board meetings because, according to the Arbitrator, the Agency was required under the Statute to end the practice. The Agency and the Union both filed exceptions to the award and oppositions to each other's exceptions.
We find for the reasons stated below, that the Agency's exceptions do not establish that the award is deficient. With respect to the Union's exceptions, we conclude that the Arbitrator made insufficient factual findings for us to determine whether the award is contrary to law. Accordingly, we remand this issue to the parties with the direction that, absent settlement, the issue should be submitted to the Arbitrator for fact finding. [ v55 p323 ]
II. Background and Arbitrator's Award
The Union filed a grievance challenging changes it alleged the Agency had made concerning official time. When the grievance was submitted to arbitration, the Arbitrator framed the issues to be resolved as follows:
1. Whether the [Agency] violated law or Articles 2, 3, or 7 of the parties' collective bargaining agreement when it changed its past practice of allowing . . . representatives official time in excess of that set forth in the parties' agreement.
2. Whether allowing [Union] regional vice presidents to attend National Executive Board meetings on official time is contrary to Section 7131(b) of the Statute?
3. If any portion of [the Union's] . . . national grievance is sustained, what shall the remedy be?
Award at 5.
The Arbitrator found that the Agency had allowed the following four practices to become past practices under Articles 2, 3, and 7 of the parties' Agreement: [n1] (1) allowing Union regional vice presidents to attend Union executive board meetings on official time; (2) allowing regional vice presidents to receive 100 percent official time; (3) permitting principal facility representatives to receive more official time than was provided for in the collective bargaining agreement; and (4) allowing field representatives to receive official time to handle labor-management issues, even though the collective bargaining agreement does not provide for any official time for field representatives.
The Arbitrator determined that the Agency "violated Articles 2, 3, and 7 of its . . . Agreement with [the Union] with respect to [the] official time past practices . . . [when the Agency] unilaterally chang[ed] those practices without proper notice and negotiations." Id. at 8. The Arbitrator rejected the Agency's argument that "it satisfied its legal obligations to negotiate" with the Union prior to changing the official time practices. Id. at 6. The Arbitrator found, in this regard, that the process leading to the change in practices "did not rise to the level of collective bargaining[.]" Id. at 7. The Arbitrator stated that "at best" the Union "might have agreed to . . . documenting official time" but that the Union "never gave up [its] position that official time hours should not be rolled back to contract levels or eliminated altogether." Id.
With respect to the Agency's termination of official time for Union regional vice presidents attending Union executive board meetings, the Arbitrator found that the Agency was correct that such practice was contrary to section 7131(b) of the Statute because the meetings concerned internal Union business. [n2] According to the Arbitrator, "union executive board meetings [are] an activity fundamentally essential for the functioning of the union qua union." Id. at 9. Thus, he found that executive board meetings concern internal Union business for which unit employees are prohibited from receiving official time under section 7131(b) of the Statute. Although the Arbitrator found that the Agency was justified in ending its policy of granting official time for these meetings, the Arbitrator also found that the Agency should have bargained over the impact and implementation of its decision to end the practice. Id.
As a remedy, the Arbitrator ordered the Agency to reinstate the status quo ante with regard to the past practices, other than official time for executive board meetings. The Arbitrator also ordered that any Union official who used annual leave or leave without pay in a situation which, before the Agency's policy change, would have warranted receiving official time, should be made whole, including backpay. With regard to the Agency's decision not to grant official time for executive board meetings, the Arbitrator ordered the Agency to bargain over the impact and implementation of this decision upon request from the Union. Finally, the Arbitrator retained jurisdiction over the case for 60 days to resolve any disputes over the application and interpretation of the award. [ v55 p324 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency excepts to the Award on three grounds. First, the Agency contends that the Arbitrator exceeded his authority by granting a status quo ante remedy and by retaining jurisdiction for the purpose of overseeing compliance with the remedy. The Agency asserts that the Arbitrator's order that the Agency return to the status quo ante means that the Agency will not be able to document official time usage. According to the Agency, the Arbitrator's failure to exclude such documentation from the status quo ante remedy exceeds the Arbitrator's authority to remedy the contract violation, because the question of documentation was not at issue before the Arbitrator. The Agency asserts in this regard that although the Arbitrator "conceded that [the Union] had agreed to the documenting of official time . . . he did not separate that administrative function from the Union's complaint over the rolling back of official time amounts." Agency's Exceptions at 6.
With respect to the Arbitrator's retention of jurisdiction to resolve disputes concerning the application and interpretation of the award, the Agency maintains that an Arbitrator may retain jurisdiction for "'clarification and interpretation' purposes," but that the Arbitrator's retention of jurisdiction in this case goes beyond that to fact finding. Id. at 7. According to the Agency, "[t]he Union . . . elected to leave an impoverished record and then requested that the Arbitrator retain jurisdiction so that the missing details could be developed and inserted after the fact." Id. at 8.
Second, the Agency asserts that the award violates the Back Pay Act. Specifically, the Agency argues that in order to award backpay, the Arbitrator must find that the Agency's "personnel action directly resulted in the withdrawal or reduction of the grievant's pay allowances or differentials." Id. According to the Agency, the Back Pay Act prohibits the Arbitrator from awarding backpay because he did not find that the Agency denied any particular employees official time. Id. at 10 (citing U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996).
Third, the Agency contends that the award is contrary to law because it affects management's rights. In this regard, the Agency states that the award "abrogates management's right to assign work, to determine the personnel to carry out work and to determine the budget by preventing information exchange, accountability and enforcement." Id. at 12.
B. Union's Opposition
The Union asserts that the Arbitrator did not exceed his authority by ordering a status quo ante remedy. According to the Union, the collective bargaining agreement does not provide for documentation of official time usage, and as a result, the status quo ante remedy is not inconsistent with the parties' agreement. The Union also argues that Authority precedent has allowed arbitrators to retain jurisdiction in order to resolve disputes over the implementation of awards, Union's Opposition at 11 (citing U.S. Department of Health and Human Services, Food and Drug Administration, Kansas City District and National Treasury Employees Union, Chapter 254, 53 FLRA 422, 424 (1997) (Food and Drug Administration), and to "ascertain facts relating to the remedy." Id. at 12.
In response to the Agency's assertion that the award is contrary to the Back Pay Act, the Union argues that the Authority does not require that an arbitrator identify particular individuals who lost pay as a result of an unjustified personnel action. The Union asserts that the Authority stated in Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521 (1988) (SSA) that if there is a relationship "between the improper change and the manner in which agencies determine the pay, allowances, or differentials of unit employees," that is sufficient for the arbitrator to find that an award of backpay is warranted. Union's Opposition at 14 (quoting SSA at 527).
With regard to the Agency's contention that the award affects management's rights, the Union argues that the Authority has found that an arbitrator's order to grant official time does not affect management's rights. Id. at 18 (citing American Federation of Government Employees and Social Security Administration, 29 FLRA 1568, 1572 (1987) and U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 152 n.7 (1997)).
C. Union's Exception
The Union excepts to the Arbitrator's conclusion that the Agency properly ended official time for attending Union executive board meetings. The Union maintains that the Arbitrator improperly made "an automatic finding that the. . . [e]xecutive [b]oard meetings constitute[d] internal union business," Union's Exception at 30, but should have considered the particular facts and [ v55 p325 ] circumstances of this case. See id. at 27-28 (citing Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, SSA General Committee, 46 FLRA 1118, 1123 (1993)) (SSA General Committee). The Union claims that the evidence presented to the Arbitrator established that the executive board meetings concerned representational matters and, therefore, official time could be granted under section 7131(b) of the Statute.
D. Agency's Opposition
The Agency asserts that the Union is disputing the Arbitrator's "finding concerning the nature of activities appropriate for the granting of official time under 5 U.S.C. 7131(b)." Agency's Opposition at 5. According to the Agency, the Union "neglected to provide [the Arbitrator with] any [evidence concerning the] 'particular facts and circumstances'" of this case that would have allowed the Arbitrator to conclude that the executive board meetings did not concern internal Union business. Id. at 6.
IV. Analysis and Conclusions
A. The Arbitrator did not Exceed his Authority.
Under Authority case law, an arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 40 FLRA 644, 649 (1991). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issues to be resolved in a grievance. See, e.g., U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1055 (1991); U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448 (1991). See also International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012, 1023-24 (1992).
The Agency concedes that the Arbitrator framed the issues before him in the absence of a stipulation by the parties. See Agency's Exceptions at 4. The Agency does not allege that the Arbitrator failed to resolve the issues he formulated. The Agency also does not claim that the remedy was not directly related to the issue before the Arbitrator. Instead, the Agency asserts that a result of the remedy is that the Agency will not be able to require official time documentation, even though the Arbitrator "conceded that [the Union] had agreed to the documenting of official time . . . ." Id. at 6.
It is not clear that the Arbitrator's remedy would affect the Agency's ability to document official time. However, even if it did, the fact that the remedy may incidentally affect a practice not directly before the Arbitrator does not demonstrate that the Arbitrator resolved an issue not submitted to arbitration, or awarded relief to persons who are not encompassed within the grievance. Moreover, the Arbitrator rejected the Agency's argument that the Union agreed to documentation of official time, and the Agency has not excepted to that aspect of the award. Accordingly, the Agency's claim does not provide a basis for a finding that the Arbitrator exceeded his authority. See General Services Administration and American Federation of Government Employees, Council 236, 47 FLRA 1326, 1331 (1993).
With respect to the Agency's contention that the Arbitrator exceeded his authority by retaining jurisdiction, the Agency has not questioned the applicability of the precedent uniformly upholding the retention of jurisdiction by arbitrators for the purpose of resolving any disputes over implementation of an award. See, e.g., Food and Drug Administration, 53 FLRA at 424; see also, U.S. Department of Veterans Affairs, Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 40 FLRA 160, 169-70 (1991). The Agency also has not indicated how the Arbitrator's retention of jurisdiction in this case is distinguishable from this precedent. As such, this argument does not provide a basis for concluding that the Arbitrator exceeded his authority.
Because the Agency has not demonstrated that the Arbitrator resolved an issue not submitted to arbitration or improperly retained jurisdiction over the implementation of his award, we deny this exception.
B. The Award is Not Contrary to the Back Pay Act.
The Authority reviews questions of law raised in a party's exceptions and an arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998) (Army Research). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the [ v55 p326 ] applicable standard of law. Id. at 1710. In making that assessment, we defer to the arbitrator's underlying factual findings.
Under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998).
The Arbitrator expressly found that the Agency violated the parties' agreement. A violation of a collective bargaining agreement constitutes an unjustified and unwarranted personnel action, within the meaning of the Back Pay Act. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1528 (1997).
The Arbitrator also found that as a result of the Agency's violation of the parties' agreement, grievants used "annual leave or leave without pay in lieu of official time" as provided for under Articles 2, 3, and 7 of the Agreement. Award at 10. The Agency does not contest this finding of fact. The Agency claims, instead, that this finding is insufficient under the Back Pay Act because the Arbitrator failed to identify particular grievants who had lost pay. Consistent with longstanding precedent, however, there is no requirement under the Back Pay Act for the Arbitrator to have identified specific employees. See U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Sheridan, Oregon and American Federation of Government Employees, Local 3979, 55 FLRA 28 (1998) (arbitrator made the necessary findings for an award of backpay, although he did not identify the affected employees) (Federal Bureau of Prisons); Federal Employees Metal Trades Council, Local 831 and U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California, 39 FLRA 1456, 1459 (1991) (Long Beach Naval Shipyard) (when an arbitrator has found the specific circumstances giving rise to an entitlement to backpay, there is no requirement in the Act or its implementing regulations for the arbitrator to identify the specific employees entitled to backpay as a result of the unwarranted action); Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386, 387 (1983) (arbitrator made the necessary findings for an award of backpay because he determined that when overtime had been assigned in violation of the collective bargaining agreement, unit employees were available to perform such work; there is no requirement under the Act to identify any specific employees).
The terms of the award further assure its consistency with the Back Pay Act. Pursuant to the award, no employee will receive backpay unless the employee would have received official time prior to the unilateral change. Award at 10. Thus, the Agency's complaint that the Arbitrator has not identified the affected employees concerns a matter of compliance and implementation, and not the requirements of the Back Pay Act. See Federal Bureau of Prisons, 55 FLRA at 29; Long Beach Naval Shipyard, 39 FLRA at 1460.
The award satisfies the requirements under the Back Pay Act that aggrieved employees were affected by an unjustified or unwarranted personnel action, and that the personnel action directly resulted in the withdrawal or reduction of the grievants' pay, allowances or differentials. The Agency's exception regarding the Arbitrator's failure to identify particular grievants to whom backpay is owed does not provide a basis for finding the award deficient. Accordingly, we deny this exception.
C. The Award does not Violate Management's Rights.
According to the Agency, the Arbitrator's status quo ante remedy precludes the Agency from documenting official time. The Agency argues in this regard that the award "abrogates management's right to assign work, to determine the personnel to carry out work and to determine the budget by preventing information exchange, accountability and enforcement". Agency's Exceptions at 12.
As noted above, the award does not address in any way documentation of official time. Accordingly, it is not clear that the award implicates this matter. However, even if it does, the Agency has not demonstrated a connection -- and has not cited precedent showing a connection -- between documentation of official time usage and the assignment of work or determination of personnel. The Agency has made only a bare assertion, in this regard. Accordingly, we find that the award does not affect management's right to assign work or determine personnel.
The Agency also contends that the Award affects management's rights to determine its budget. This bare assertion similarly does not establish that the award affects that management right under the budget test set forth in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, [ v55 p327 ] 608 (1980), aff'd sub nom. Department of Defense, Army Air Force Exchange Service v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1980) (among other things an agency must make a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits). Accordingly, we find that the award does not affect management's right to determine its budget.
D. The Award does not Contain Sufficient Factual Findings to Support a Conclusion that Granting Official Time to Attend Union Executive Board Meetings is Contrary to Law
The Union's exception challenges as contrary to law the portion of the Award concluding that because granting official time to attend Union executive board meetings violates the Statute, the Agency was free to terminate this practice without negotiating the substance of the change. Consistent with Authority precedent, in applying the standard of de novo review to resolve this exception, we defer to the Arbitrator's underlying factual findings, and assess whether they support his legal conclusion that official time for such purpose is prohibited by law. See Army Research, 53 FLRA at 1709.
Section 7131(b) of the Statute states that "[a]ny activities performed by any employee relating to the internal union business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status." The legislative history of section 7131(b) indicates that this section of the Statute does not bar the granting of official time for representational and contract administration activities "related to the performance of labor-management functions contributing to the efficient administration of the agency[.]" S. Rep. No. 95-969, 95th Cong. 2d Sess. 105 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong. 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) at 773 (Legislative History). The House Report accompanying the Legislative History explains further that:
Examples of such representational and contract administration activities include the investigation and attempted informal resolution of employee grievances, participation in formal grievance resolution procedures, attending or preparing for meetings of committees on which both the labor organization and management are represented and discussing problems in [collective bargaining] agreement administration with management officials.
Consistent with Authority precedent, determining whether a union meeting concerns matters for which union officials may receive official time under section 7131(b), requires examining the "activities [associated with the meeting] . . . based on the particular facts and circumstances of each case." SSA General Committee, 46 FLRA at 1123. In SSA, General Committee, the Authority rejected the agency's contention that a union convention necessarily constitutes internal union business, and found that the arbitrator's factual findings that 1 day of the union meeting concerned internal union business, such as elections, and 4 days concerned general labor relations matters, such as representational issues, were sufficient under section 7131(b) to grant official time for the 4 days concerning general labor relations matters. See also National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366, 1368 (1991) (Department of the Treasury) (preparing records and reports required by Federal agencies is not internal union business); National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Medical Center, Brockton/West Roxbury, Massachusetts, 23 FLRA 542, 543 (1986) (internal union business concerns the institutional structure of the union, but "[a]ctivities involving labor-management contacts, as well as preparation for them, are not internal union business"); Military Department of Arkansas, Office of the Adjutant General, Arkansas National Guard and Local 1671, National Federation of Federal Employees, 23 FLRA 114, 115 (1986) (training in the conduct of union business constitutes internal union business); Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878, 885 (1985) (internal union business includes "union business meetings, communication with members, contracting for goods and services, payment of bills, and other similar and associated activities").
In this case, the Arbitrator speculated that in general some of the time that union officials spend at executive board meetings might concern matters for which official time may not be granted under section 7131(d), and on that basis concluded that the Agency correctly terminated its official time practice without bargaining over the substance of the change. However, the Arbitrator made no factual findings. He stated only that:
I see union executive board meetings as an activity fundamentally essential for the functioning of the [ v55 p328 ] union qua union. It seems to me, generally speaking that union executive board meetings "solely relate to the structure and institution of the labor organization." IRS, [38 FLRA] at 1368. And, it would be [a] major stretch to conclude otherwise. Here, [the Union] argues that its executive board meetings deals primarily with representational issues generated by [the Agency]. That may well be the case, but debating and planning tactics and strategy in response to [Agency] initiatives, certainly at [the Union's] highest levels, absent representational interface or other compelling representational circumstances is not sufficient to convert this time into official time, in my opinion. Where, however, a portion of these [Union] meetings is spent dealing with [Agency] officials on matters of mutual concern 'in the public interest," then that time would certainly be negotiable under Section 7131(d) of the Statute and might include certain representational activity if that can be agreed on.
Award at 9.
When an award fails to contain factual findings necessary to assess an arbitrator's legal conclusions, and the findings cannot be derived from the record, the award will be set aside and the case remanded to the parties for submission to the arbitrator so that the requisite findings can be made. See Army Research, 53 FLRA at 1710. In this case, the Arbitrator provides no factual basis for his conclusion that Union executive board meetings necessarily concern internal Union business. Accordingly, consistent with Army Research, we remand this issue to the parties with the direction that, absent settlement, the issue should be submitted to the Arbitrator to make the necessary findings regarding the business conducted at the Union executive board meetings. On the basis of these factual findings, the Arbitrator should make the necessary conclusions as to whether any official time is warranted for the business conducted at the meetings and whether the Agency properly terminated all official time to attend the meetings.
The Agency's exceptions are denied.
The issue of whether the Agency properly terminated all official time to attend Union executive board meetings is remanded for further proceedings consistent with this decision.
Footnote # 1 for 55 FLRA No. 50
Unless prohibited by operational requirements, each Principal Facility Representative shall, on request, be granted . . . official time . . . to prepare for meetings with Management and perform other representational duties[.]
Article 3, Section 2 provides that:
Each Regional Vice President of the Union shall be granted forty (40) hours of official time per pay period to perform the representational duties of the office.
Article 7, Section 1 provides, in pertinent part that:
It is agreed that personnel policies, practices, and matters affecting working conditions, not specifically covered by this Agreement, shall not be changed by the Employer without prior notice to, and negotiation with the Union.
See Agency's Exceptions, Attachment 1 at 5-6, 7, 14.
Footnote # 2 for 55 FLRA No. 50
Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status.