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57 FLRA No. 85
SOCIAL SECURITY ADMINISTRATION
HEADQUARTERS, BALTIMORE, MARYLAND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, GENERAL COMMITTEE
September 20, 2001
Before the Authority: Dale Cabaniss, Chairman;
Carol Waller Pope and Tony Armendariz, Members
Decision by Member Pope for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement and § 7116(a)(1), (5) and (8) of the Statute when it unilaterally implemented a Table of Penalties for certain computer system security violations and a banner statement on computer screens regarding computer security. [n1] For the following reasons, we conclude that the Union has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency notified the Union that it planned to implement a Table of Penalties (Table) for unauthorized computer system security violations and offered to bargain over the impact and implementation of the Table. The Union refused to bargain, arguing that the subject was covered by the parties' agreement. The Agency notified the Union that it would implement the Table, and the Union filed a grievance alleging a violation of the parties' agreement and the Statute. During the processing of the grievance, the Agency implemented the Table. When the grievance was not resolved, it was submitted to arbitration, where the parties stipulated to the following issue: "Whether the Agency's implementation of the Table of Penalties . . . violated the [parties'] [a]greement, Articles 2, 3, 4, 5, 7 and 23, . . . [and] [§] 7116(a)(1), (5) and (8) [of the Statute]." Award at 2.
Applying the framework set forth by the Authority in United States Dep't of HHS, SSA, 47 FLRA 1004 (1993) (HHS), the Arbitrator concluded that the subject matter of the Table was not covered by Article 23 of the parties' agreement. [n2] In particular, the Arbitrator found both that Article 23 did not expressly cover the substance of the Table and that the substance was not inseparably bound up with a subject expressly covered in the agreement. The Arbitrator also determined that the Table did not violate the requirements in Article 23 for just cause and progressive discipline because those principles continued to apply to review of Agency actions under the Table.
The Arbitrator concluded that there was nothing in Article 23 that precluded the Agency from unilaterally implementing the Table of Penalties. The Arbitrator also found that, to the extent that bargaining over the impact and implementation of the Table was required, the Agency had offered to bargain. The Arbitrator concluded that the Union waived its right to bargain by stating its refusal to bargain in a letter to the Agency.
Based on the foregoing, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award is contrary to law. In this connection, the Union contends that the subject matter of the Table is expressly contained in Article 23 of the parties' agreement and that, even if it is not, the Table is inseparably bound up with Article 23. The [ v57 p460 ] Union also argues that the Arbitrator did not address the merits of its claim that the Table violated Article 23 of the parties' agreement. In this respect, the Union claims that the award "[m]anifests a [d]isregard" of the parties' agreement. Exceptions at 14.
In addition, the Union argues that the Arbitrator's finding that the Union waived its right to object to the Table because it refused to bargain is contrary to law. In this connection, the Union maintains that because the Table was covered by the parties agreement, it had no obligation to bargain with the Agency. The Union also argues that the Table violates employees' Constitutional right to due process and that the award is "contrary to the principles of the [S]tatute" because it promotes litigation. Id. at 22.
B. Agency's Opposition
The Agency argues that the Arbitrator correctly applied the "covered by" doctrine. In addition, according to the Agency, the Arbitrator correctly found that the Union's refusal to bargain over implementation of the Table constituted a waiver of its right to bargain. The Agency also contends that the Union's Constitutional argument is raised for the first time in its exceptions and is meritless. [n3]
IV. Preliminary Issue
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that were not presented in the proceedings before the . . . arbitrator. See, e.g., Int'l Ass'n of Fire Fighters, Local F-89, 50 FLRA 327, 328 (1995). Consistent with the Agency's assertion, there is no indication in the record that the Union's argument regarding Constitutional due process was raised before the Arbitrator. As this issue relates to the impact of the Table on employees, it could, and should, have been presented to the Arbitrator. Accordingly, pursuant to § 2429.5 of the Authority's Regulations, the Authority will not consider this argument. See AFGE, Local 2145, 55 FLRA 366, 368 (1999).
V. Analysis and Conclusions
A. The Arbitrator's award rejecting the Union's"covered by" argument is not contrary to law.
When a party's exception challenges an arbitration award's consistency with law, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See id.
In a grievance alleging an unfair labor practice by an agency, the union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. See AFGE, Nat'l Border Patrol Council, 54 FLRA 905, 909 (1998). Here, the Union alleges that the Agency violated § 7116(a)(1), (5), and (8) of the Statute. The Union claims that the Agency could not lawfully implement the Table because this subject is covered by Article 23 of its contract.
The "covered by" doctrine is a well established defense to a claim that an agency failed to provide a union with notice and an opportunity to bargain over changes in conditions of employment. See United States Dep't of the Interior, Wash., D.C., 56 FLRA 45, 53 (2000). In this regard, the covered by doctrine excuses parties from bargaining on the ground that they have already bargained and reached agreement concerning the matter at issue. See HHS, 47 FLRA at 1015, see also, AFGE, Local 225, 56 FLRA 686, 689 (2000) (covered by doctrine operates to prevent, not require bargaining).
Because the "covered by" doctrine operates as a defense to an alleged unlawful refusal to bargain -- by an agency under § 7116(a)(5) or by a union under § 7116(b)(5) of the Statute -- the Union's reliance on the doctrine in this case is misplaced. In particular, neither the Union nor the Agency is asserting that the other party illegally refused to bargain. While the Agency offered the Union the opportunity to bargain over the proposed change, it did not object when the Union declined to bargain. The Union is, thus, not raising the "covered by" doctrine as a defense to an alleged unlawful refusal to bargain. Further, while the Union asserts that the contract did not permit the Agency to implement the Table, it does not seek bargaining. As neither party is asserting that the other is obligated to bargain, the covered by doctrine does not apply. Therefore, the [ v57 p461 ] Union's "covered by" argument does not provide a basis to find the award deficient. [n4]
B. The Arbitrator did not exceed his authority.
The Union argues that the Arbitrator failed to resolve its claim that the Table violated Article 23 of the parties' agreement. See Exceptions at 15-16. We construe this argument as an exception that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).
In this case, part of the stipulated issue was whether the Agency's implementation of the Table violated Article 23 of the parties' agreement. [n5] See Award at 2. The Arbitrator concluded that nothing in Article 23 precluded the Agency from unilaterally implementing the Table, and that the Table did not violate the requirements in Article 23 for just cause and progressive discipline. As such, the Arbitrator resolved the contractual issue as it was presented to him. Based on the foregoing, we find that the Arbitrator did not exceed his authority. See United States Dep't of Defense, Educ. Activity, Germany Region, 56 FLRA 755, 760-61 (2000).
C. The Arbitrator's award does not fail to draw its essence from the agreement.
The Union contends that the award "[m]anifests a [d]isregard" of the parties' agreement because the Table ignores the just cause and progressive discipline provisions of Article 23. Exceptions at 14. We construe this contention as an assertion that the award fails to draw its essence from the agreement. 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) cannot in any way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Arbitrator determined that the Table did not violate the requirements in Article 23 for just cause and progressive discipline because the determination of just cause, which includes the consideration of progressive discipline, remained the contractual standard for review of the Agency's action pursuant to the Table. In particular, the Arbitrator stated that "[t]he fact that a particular penalty for a particular act of misconduct is set forth in a . . . [T]able of [P]enalties is but one factor" to determine whether just cause existed for the discipline imposed. Award at 23. The Union has not shown that the Arbitrator's interpretation of Article 23 is implausible, irrational, or in manifest disregard of the parties' agreement. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement.
D. The Arbitrator's finding that the Union waived its right to bargain is not contrary to § 7116(a)(7) of the Statute.
The Union objects to the Arbitrator's statement that "[t]o the extent that bargaining over impact and implementation was required," it was waived by the Union. Award at 26. However, the Union never claimed a right to bargain over implementation of the Table. Accordingly, the matter of whether the Union waived its bargaining right was not at issue. As a result, the Arbitrator's finding regarding this issue constitutes dicta and does not provide a basis for finding the award deficient.
E. The Arbitrator's award is not inconsistent with the Statute.
The Union argues that the Arbitrator's award is "contrary to the principles of the [S]tatute" because it promotes litigation. Exceptions at 22. The Authority has stated that in order to raise a valid contrary to law exception, a party must allege a violation of some specific statutory requirement. See AFGE, Local 3369, 55 FLRA 1290, 1293 (2000). Here, the Union does not identify the provisions of the Statute to which it refers and there is no specific statutory provision regarding litigation. As such, we find that the Union's assertion does not provide a basis for finding the award deficient on this ground.
The Union's exceptions are denied.
Footnote # 1 for 57 FLRA No. 85
Footnote # 2 for 57 FLRA No. 85
The parties agree that the objective of discipline is to correct and improve employee behavior so as to promote the efficiency of the service. The parties agree to the concept of progressive discipline designed primarily to correct and improve employee behavior. Bargaining unit employees will be the subject of disciplinary or adverse action only for just cause.
Footnote # 3 for 57 FLRA No. 85
The Agency also claims that the dispute has been rendered moot because the parties agreed to a new collective bargaining agreement and the Union did not raise the issue of the Table during negotiations. The Agency has neither provided evidence to support its assertion nor explained how a new agreement would moot the grievance. As such, we reject the claim.
Footnote # 4 for 57 FLRA No. 85
Footnote # 5 for 57 FLRA No. 85