Social Security Administration, Boston Region (Region 1), Lowell District Office, Lowell, Massachusetts (Agency) and American Federation of Government Employees, Local 1164 (Union)
[ v57 p264 ]
57 FLRA No. 55
SOCIAL SECURITY ADMINISTRATION
BOSTON REGION (REGION 1)
LOWELL DISTRICT OFFICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1164
June 13, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James S. Cooper filed by the Agency under § 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.
The Arbitrator determined that the Agency had violated various provisions of the parties' agreement, and directed the Agency to cease and desist from searching the overhead bins within the grievant's work cubicle without prior written authorization from the Area Manager or Assistant Area Manager. The Arbitrator also directed the Agency to reassign the grievant to a different supervisor.
For the reasons that follow, we find that the portion of the award directing the Agency to reassign the grievant to a different supervisor is deficient, and we modify the award accordingly. Otherwise, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
On several occasions between March 10-24, 1997, while the grievant was on vacation, her supervisor entered the grievant's work cubicle and examined the pending work files in her file cabinet and overhead bins. The supervisor discarded outdated papers within certain files, completed work necessary to close selected files, and reassigned some files to other staff. The supervisor sorted the remaining files into separate stacks for the grievant's attention upon her return.
On at least one occasion during this time, the Union steward observed the supervisor in the grievant's office area looking through the grievant's files and advised the supervisor that his actions were inappropriate and grievable. However, the supervisor's superior, the Assistant Field Office Manager, supported the supervisor's actions as being within the supervisor's authority to mak[e] himself aware of what was in the unit. Award at 6. The Manager assured the steward that the supervisor's actions would not negatively impact the grievant.
On March 25, 1997, the grievant returned to work and became upset upon discovering that her desk area was not as she had left it and upon learning that her supervisor had examined and sorted her pending work files. The following day, the grievant became further upset when her supervisor told the grievant to bring her files directly to him as she completed processing them, because he believed she needed assistance managing her work. On April 7, 1997, the Union filed a grievance, on behalf of the grievant, claiming that:
[o]n 03/25/97 [the grievant] became aware that her cubicle had been searched, every draw[er] and file opened and every file reviewed/audited by her supervisor while she was on vacation. She was given no advance notice that her cubicle would be searched nor that her work would be reviewed. She has suffered a significant negative impact including under [sic] stress due to management's disregard of the National Agreement . . . .
Id. at 7. When the grievance was not resolved, the matter was submitted to arbitration.
Because the parties were unable to agree on an issue, the Arbitrator framed the issue as follows:
Whether management of the Lowell District Office violated Article 3, §§ 2A and C, Article 9, § 16, and/or Article 21, § 1 and § 6 of the National Agreement between AFGE and SSA when [the supervisor] opened file cabinet drawers and overhead bins, examined files, worked on files and took other actions in [the grievant's] workspace while she was on vacation between March 10, [ v57 p265 ] 1997 and March 24, 1997? If so, what shall be the remedy?
Id. at 3.
The Arbitrator found that the Agency violated Article 3, § 2A, second paragraph, of the parties' agreement when the supervisor failed to [treat the grievant] with dignity, courtesy and respect by searching her overhead bins and messing up her desk while she was on vacation." [n2] Id. at 21. The Arbitrator interpreted the parties' agreement, which incorporated the provisions of the Agency's Personnel Manual of Supervisors, S-297, subchapter 2, to include overhead bins "as part and parcel of the . . . desk," but not to include the five-drawer file cabinet within the grievant's work area. Id. at 19. The Arbitrator concluded that the Agency violated Article 3, § 2, ¶C, because the supervisor "failed to request and obtain written permission to open [the grievant's] overhead bins which contained her private possessions." [n3] Id. at 21. Finally, the Arbitrator found that the Agency violated Article 21, §§ 1 and 6 "by failing to provide [the grievant] with honest feedback and open two-way communication and by failing to provide her with performance assistance." [n4] Id. at 21-22.
As a remedy, the Arbitrator directed the Agency to "cease and desist" from entering the grievant's overhead bins during her absence without the Area Manager's or Assistant Area Manager's prior written authorization "for a specific purpose," to be shared with the Union upon request. Id. at 22. The Arbitrator also directed the Agency to reassign the grievant to a different supervisor.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that the Arbitrator exceeded his authority by ignoring the specific terms of the parties' agreement and raising and deciding an issue not properly before him. Exceptions at 16. According to the Agency, the Arbitrator ignored the term desk and focused, instead, on the terms overhead bins and file cabinets, both of which describe types of office furniture neither contemplated nor dealt with in the Personnel Manual of Supervisors, PMS Guide S-297. Id. at 14. According to the Agency, by expanding the language of the PMS Guide S-297 to include terms that the parties never negotiated, the Arbitrator exceeded his authority. Id. at 18. The Agency also asserts that the disputed language is incorporated by reference into the parties' agreement. Id. at 13.
The Agency further claims that the award is based on the nonfact that the supervisor trash[ed] the grievant's office area. Id. at 20-21. The Agency argues that even if the supervisor had inadvertently left debris on the grievant's desk, such an act does not reach the level necessary to find that the supervisor failed to comport himself with courtesy, dignity and respect. Id. at 22. The Agency further claims that the Arbitrator's determination that there were other employees and supervisors who must have observed the alleged strained relationship between the grievant and her supervisor represents a non-finding finding and a negative inference that the Arbitrator wrongfully applied against the Agency simply because the Agency did not call rebuttal witnesses. Id. at 19-20. According to the Agency, had the Arbitrator not relied on these nonfacts, the result in this case would have been different.
Finally, the Agency claims that the award violates management's rights to assign and direct employees under § 7106(a)(2)(A) of the Statute because it fails to satisfy either prong of the Authority's framework under United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP). Exceptions at 23-24. [ v57 p266 ]
B. Union's Opposition
The Union maintains that the Agency's exceptions are simply a reflection of the Agency's disagreement with the Arbitrator's reasoning and an attempt to re-litigate the merits of the case. Opposition at 4. First, the Union asserts that the Arbitrator did not exceed his authority, because his award addressed and resolved the issue presented by the grievance. Id. at 2-3. According to the Union, the reference to new furniture reflected the parties' understanding that the Agency would install modular workstations. In this regard, the Union argues that workstation components, including overhead bins or file cabinets, are within societal norms of what could be considered a desk in a modern office cubicle, and therefore, employees would expect such compartments to be included within the scope of the areas where searches may only be conducted in limited situations under the parties' agreement. Id. at 3-4.
Next, the Union contends that the Agency's claim that the award is based on nonfacts represents dissatisfaction with the Arbitrator's reasoning and conclusions, which may not be questioned. Id. at 5.
Finally, the Union asserts that no management right has been violated in this case. The Union claims that reassigning the grievant to another supervisor does not abrogate management's right to assign work, because the award preserved management's discretion to determine the identity of the new supervisor. Id. at 8. The Union contends that even if BEP applies, the award satisfies both prongs. According to the Union, a contract provision requiring management to provide assistance for improvement of performance is enforceable as an appropriate arrangement under § 7106(b)(3) of the Statute. Id. at 9-10. In addition, the Union asserts that [r]eassigning [the grievant] . . . seems reasonable given the multiple contract violations and strong evidence of hostility exhibited [by the supervisor]. Id. at 10.
Alternatively, the Union, citing Authority regulations and precedent, claims that because the Agency reassigned the grievant to a new supervisor after the events triggering the grievance, but before the Arbitrator's decision was issued, the Agency's exception to portion of the Award directing reassignment of the grievant to a different supervisor should be dismissed as moot. Id. at 11.
C. Agency Supplemental Submission
In response to an Order to Show Cause issued by the Authority on May 11, 2000, the Agency denies the Union's assertion that the portion of the Award directing the Agency to assign the grievant to a different supervisor is moot. The Agency acknowledges that between the time of the events addressed in the award and the time of the hearing, the supervisor was laterally reassigned to a position where he does not supervise the grievant. However, according to the Agency, the supervisor could be reassigned back to the position [supervising the grievant] at any time when [Agency] management determines such action to be appropriate. Response to Order to Show Cause at 2. In this regard, the Agency contends that [r]eassignment of an employee from one supervisor to another is a routine matter within the Agency. Id. at 4. Furthermore, the Agency asserts that the Supervisor's new position is a management position wherein the supervisor may be called upon at any time to assign, review, and evaluate the work performance of the grievant, and that any restrictions on its right to assign or reassign such duties to the supervisor violates its rights to assign work and direct employees. Id. at 3. [n5]
IV. Analysis and Conclusion
A. The Arbitrator did not exceed his authority
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, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995).
The Authority will find an award deficient when it is established that the arbitrator determined an issue not included in the subject matter submitted to arbitration. Veterans Admin., 24 FLRA 447, 450 (1986). However, the Authority, like the Federal courts, will accord an arbitrator's interpretation of the parties' stipulation of the issue, or the arbitrator's formulation of the issue to be decided in the absence of a stipulation, the same substantial deference accorded an arbitrator's interpretation and application of a collective bargaining agreement. United States Dep't of Housing & Urban Dev., 24 FLRA 442, 444 (1986). Similarly, both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. Id.
In this case, the Agency has provided no basis for finding that the Arbitrator exceeded his authority by [ v57 p267 ] resolving the issue concerning overhead bins. The parties could not agree on the specific wording of the issue. Award at 1. The Arbitrator clearly specified the issue on the merits to be whether management violated various provisions within the parties' agreement when the grievant's supervisor opened file cabinet drawers and overhead bins, examined files, worked on files and took other actions in [grievant's] workspace while she was on vacation . . . . Id. at 3. The Arbitrator resolved precisely that issue. Moreover, he confined his remedy (to cease and desist from searching the overhead bins within the grievant's work cubicle) to the issues submitted as he unambiguously framed them.
Because the Agency has not established that the Arbitrator's decision relating to overhead bins indicates that the Arbitrator broadened the scope of the issue he was charged with resolving or resolved an issue not before him, we deny the Agency's exception.
B. The award draws its essence from the parties' agreement
The Agency argues that the Arbitrator's interpretation of the terms of the Agency's personnel guide, incorporated by reference into the parties' agreement, to include overhead bins or file drawers as part of a desk disregards the language of the personnel guide, which does not specifically refer to overhead bins or file drawers. See Exceptions at 13. We construe this argument as a claim that the award fails to draw its essence from the parties' agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Defense, Dependents Schools, 53 FLRA 196, 208 (1997), citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575-77 (1990).
We find that the Agency's exception fails to meet any of the above stated criteria. The Arbitrator interpreted the terms of the PMS, S-297, subchapter 2, as incorporated within Article 3, § 2, paragraph C, of the parties' agreement, such that [a] reasonable interpretation of the PMS . . . would include the overhead bins as part and parcel of the [grievant's] desk, but it would not include the five drawer file-cabinet. Award at 19. The Agency has not shown that the Arbitrator's interpretation of desk as including other similar storage areas is irrational, implausible, unfounded, or evidences a manifest disregard of the collective bargaining agreement. Therefore, this exception does not provide a basis for finding the Award deficient. Accordingly, the exception is denied.
C. The award is not based on a nonfact
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. United States Dep't of the Interior, Bureau of Mines, Pittsburgh Research Ctr., 53 FLRA 34, 40 (1997).
The Agency asserts that the Arbitrator based his award on the nonfacts that the supervisor: trash[ed] the grievant's office area; failed to comport himself with courtesy, dignity, and respect, toward the grievant; and had a strained relationship with the grievant that must have [been] observed [by others]. See Exceptions at 20-22. These assertions, however, challenge the Arbitrator's factual determinations on matters that were disputed at arbitration.
It is clear from the record that the parties argued to the Arbitrator those facts each side thought relevant in regard to the actions of the grievant's supervisor, not only while he was in the grievant's office area, but also with respect to his behavior toward the grievant and others' observations of that alleged behavior. Award at 5, 8, 17. Because the matters the Agency now disputes before the Authority were disputed at the arbitration proceeding and resolved by the Arbitrator, this exception does not provide a basis for finding the award deficient. Accordingly, this exception is denied. [ v57 p268 ]
D. The portion of the award directing reassignment of the grievant to a different supervisor is deficient
1. The issue is not moot
The Union contends that the portion of the award directing reassignment of the grievant to a different supervisor is moot because the Agency reassigned the grievant to a different supervisor prior to the issuance of the Arbitrator's decision. Opposition at 11. We conclude that this argument is without merit, however.
It is well established that a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome. United States Small Bus. Admin., 55 FLRA 179, 183 (1999) (SBA), citing United States Dep't of Justice v. FLRA, 991 F.2d 285, 289 (5th Cir. 1993). Moreover, the Supreme Court has held that the burden of demonstrating mootness is a heavy one. SBA, 55 FLRA at 183, citing United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). The party urging mootness meets its burden of demonstrating that neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law, upon satisfaction of two conditions: (1) that `there is no reasonable expectation'. . . that the alleged violation will recur, and (2) interim relief or events have completely [or] irrevocably eradicated the effects of the alleged violation. SBA, 55 FLRA at 183, citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotations and citations omitted)).
Under § 2429.10 of the Authority's Regulations, the Authority is precluded from issuing an advisory opinion. 5 C.F.R. § 2429.10. If this issue is moot, deciding the question presented would be tantamount to issuing an advisory opinion.
In this case, the Union has not established that the Agency no longer has a legally cognizable interest in the disputed requirement of the Award. Rather, a real possibility exists that the supervisor could, in the future, be called upon to supervise the grievant again. The supervisor is still a management official, and the Agency could reassign him to supervise the grievant at any time. According to the Agency, such reassignments are routine. Thus, the record does not establish that there is no reasonable expectation of the situation addressed by this portion of the award recurring. See SBA, 55 FLRA at 183 (award was not moot which required agency to place grievant in an appropriate position even though the agency had terminated the grievant as she had filed a separate action seeking reinstatement). Accordingly, we will consider the merits of the Agency's exception.
2. The reassignment of the grievant to a different supervisor is contrary to management's right to assign employees
The Agency's exception that the Award is contrary to management's right to assign employees challenges the award's consistency with law. Therefore, the Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Where an agency asserts that an arbitrator's award violates management's rights, the Authority first determines whether the award affects management's rights. See SBA, 55 FLRA at 184. If it does, then the Authority applies the two-prong test set forth in BEP, 53 FLRA at 151-54. If the award does not affect management's rights, then the BEP analysis is not required.
The Authority has previously found arbitral efforts to order reassignment to be contrary to an agency's right to assign employees. See AFGE, Local 12, 34 FLRA 877 (1990) (award requiring reassignment of employees deficient because violated provision of agreement did not address or require reassignment of employees); cf. Nat'l Gallery of Art, Washington, D.C., 55 FLRA 480, 481 (1999) (where an arbitrator's award does not require the agency to assign the grievant to a new supervisor, the agency's right to assign employees under § 7106(a)(2)(A) is not affected). Cf. United States Dep't of the Treasury, United States Customs Serv., New York, NY, 39 FLRA 278 (1991) (award ordering the reassignment of an employee back to his original position after the agency had not followed proper contractual procedures in reassigning him was not contrary to law as the agency retained the right to reassign employees subject to the contractual procedures). We conclude, therefore, that the award affects management's rights under § 7106(a).
Upon satisfying the threshold requirement, the Authority applies a two-prong test to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. [ v57 p269 ] BEP, 53 FLRA 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 the BEP framework, 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, then the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. See United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Va., 54 FLRA 180, 185 (1998).
In order to apply the BEP test, it is first necessary to identify the contract provision that the Arbitrator determined was violated. Here, the Arbitrator identified more than one provision of the parties' agreement relevant to the case. First, the Arbitrator determined that the grievant's supervisor violated the spirit and the letter of Article 21 of the Agreement through supervisory techniques that amounted to a less than honest interaction between himself and the grievant. Award at 20. The Arbitrator also determined that the supervisor violated Article 2, § 2A, second paragraph, of the Agreement when the supervisor failed to treat the grievant with courtesy, dignity and respect. Id. at 18.
We assume without deciding that the award complies with prong I of the BEP test. Under prong II, we examine whether the award reflect(s) a reconstruction of what management would have done had it complied with the contract provision. BEP, 53 FLRA at 154. We conclude that under any of the provisions the Arbitrator found the Agency to have violated, transferring the grievant to another supervisor is not a proper reconstruction of what management would have done had it complied with the contract provision. First, had the Agency complied with Article 21, the supervisor would have engaged the grievant in honest feedback and open two-way communications, pursuant to the Arbitrator's interpretation of Article 21, § 1. Award at 20. Upon identifying shortcomings with her work, the supervisor would have applied the remedial provisions of Article 21, § 6 of the parties' agreement, including the collection and analysis of data which focuses `on the process and not on the individual employee.' Id. Nothing in Article 23 addresses, directly or indirectly, reassignment of Agency supervisors. As a result, reconstruction of what the Agency would have done had it complied with Article 21 cannot possibly entail such reassignment.
Similarly, had the Agency complied with Article 3, § 2A, second paragraph, the grievant's supervisor would have deal[t] with [the employee] in a professional manner and with courtesy, dignity and respect. Award at 2 n.1. As is the case with Article 21, Article 3 does not involve, directly or indirectly, reassignment of the grievant to a different supervisor.
Therefore, as the portion of the Award directing the reassignment of the grievant to a different supervisor fails to meet prong II of BEP, the Award is deficient. Accordingly, we set aside that portion of the Award.
In response to the dissent, we appreciate that the nature of contract provisions such as those involved in this case make it difficult to construct meaningful remedies. Nevertheless, for the reasons that follow, we disagree that this fact renders the reconstruction prong of BEP inapplicable.
The BEP requirements are rooted squarely in the Supreme Court's decision in IRS v. FLRA, 494 U.S. 922 (1990) (IRS). In that decision, the Court held that the only limitations on management rights under § 7106(a) of the Statute are those contained within § 7106 itself. See id. at 928. There are two such limitations. First, management's rights under § 7106(a)(2) are limited by applicable laws. Second, all management rights under § 7106(a) are subject to subsection (b). While IRS, itself involved review of an Authority decision in a negotiability proceeding, [n6] the Court's decision was based on an interpretation of § 7106, which obviously applies