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57 FLRA No. 87
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION, IRVING, TEXAS
September 20, 2001
Before the Authority: Dale Cabaniss, Chairman;
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John B. Barnard 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 did not file an opposition to the Union's exceptions.
The Arbitrator denied the Union's grievance alleging that the Agency violated the parties' agreement and committed an unfair labor practice (ULP) under § 7116(a)(1) and (5) of the Statute (hereinafter statutory ULP) by unilaterally changing a condition of employment without bargaining with the Union. In coming to his conclusion, the Arbitrator held that the Agency did not violate the parties' agreement, but also held that it was not within his authority to resolve the Union's statutory ULP claim. The Union filed exceptions to the Arbitrator's holding regarding the statutory ULP claim. For the reasons that follow, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for resolution consistent with this decision.
II. Background and Arbitration Award
On October 19, 1999, the Agency sent the Union an e-mail explaining that the Agency was cancelling the online research service that had been used by employees. The Agency stated that employees would instead be provided a CD-ROM system that would enable them to perform research. In that connection, the Union filed a grievance claiming that the Agency violated the parties' agreement and committed a statutory ULP when it "unilaterally changed [a] condition of employment without negotiating either the substance and/or impact and implementation of [that] change". Award at 4. [n2] The Agency denied the grievance, and the matter was submitted to arbitration.
At arbitration, the parties did not agree on the issue to be resolved. As relevant here, the Arbitrator set forth the issue as stated by the parties as follows:
The Agency frames the following issue:
Whether access to the Commerce Clearing House (CCH) research system via CD-ROM instead of on line required bargaining with the Union. If so, what shall the remedy be?
The Union advances the following issue:
Did management unilaterally change conditions of employment when it canceled [CCH] on line service without giving the Union an opportunity to negotiate? If so, what shall be the remedy?
Id. at 2.
The Arbitrator found that the Agency's actions did not violate the parties' agreement. In particular, the Arbitrator found that "[t]here is no diminished capacity for information based upon the CD-ROM access." Id. at 24. Therefore, the Arbitrator determined that "[a] change to a different access for information purposes does not change conditions of employment affecting working conditions." Id. [n3] As a result, the Arbitrator held that the Agency had no obligation to bargain over the matter in accordance with the parties' agreement. On that basis, the Arbitrator denied the grievance.
Finally, the Arbitrator held, without explanation, that [i]t is not within my authority as an arbitrator to [ v57 p465 ] decide on the merits of the Unfair Labor Practice charge as referenced in the grievance. Id. at 27.
III. Union's Exceptions
The Union contends that the award is contrary to law, for three reasons. First, the Union argues that the Arbitrator incorrectly ruled that he did not have authority to decide the merits of the Union's statutory ULP claim. In support, the Union quotes AFGE, Nat'l Council of HUD Locals 222, 54 FLRA 1267, 1274-75 (1998), for the proposition that "[w]hen a grievance under [§] 7121 of the Statute involves an alleged unfair labor practice, arbitrators must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under [§] 7118." Exceptions at 1.
Second, quoting the grievance language alleging that "'[t]he [e]mployer unilaterally implemented [the] change without proper notice and did not give the Union the opportunity to bargain over the substance and/or impact and implementation of the change[,]'" the Union argues that the award is deficient because the Arbitrator did not rule on whether the Agency's decision to discontinue the online research service was bargainable. Id. at 2. In support, (citing Air Force Logistics Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Georgia, 53 FLRA 1664, 1668-69 (1998)) (Member Wasserman dissenting) (Warner Robins), the Union explains that "[i]f the working condition, as opposed to the impact caused by its change, is a subject that is negotiable, the de minimis doctrine does not apply." Exceptions at 1.
Third, the Union argues that the Arbitrator's "misunderstanding of law" led to his belief that the Agency's decision to discontinue the online research service did not change working conditions. Id. at 2. In this regard, the Union asserts that even if the Agency's decision was subject to impact and implementation, as opposed to substantive, bargaining, the "change had more than a de minimis effect." Id.
IV. Analysis and Conclusions
A. The Authority Applies a De Novo Standard of Review
The Union argues that the Arbitrator erred as a matter of law by determining that he did not have authority to resolve the Union's statutory ULP claim referenced in the grievance. Because the Union's exceptions challenge the award's consistency with law, the Authority reviews the questions of law raised by those exceptions 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 the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Treasury, United States Customs Serv., Portland, Or., 54 FLRA 764, 769-70 (1998). In making that assessment, the Authority defers to the arbitrator's underlying findings of fact. Id. at 770.
B. The Award Must Be Remanded
After reviewing the record, we conclude that a remand is necessary in order to determine whether the Union properly submitted a statutory ULP claim to the Arbitrator. Arbitrators have authority to resolve statutory ULP claims provided: (1) the parties have not agreed to exclude ULPs from the scope of the negotiated grievance procedure; and (2) the issue of whether the agency committed ULPs in violation of the Statute has been properly submitted to arbitration. Cf. NTEU, Chapter 168, 55 FLRA 237, 241 (1999) (alleged violations of § 7116 may be raised as ULP charges under the statutory procedure set forth in § 7118, or as grievances under a negotiated grievance procedure). When a grievance under § 7121 of the Statute involves an alleged ULP, the arbitrator must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under § 7118. See id. In a grievance alleging a ULP by an agency, the Union bears the burden of proving the elements of the alleged ULP by a preponderance of the evidence. See AFGE, Nat'l Border Patrol Council, 54 FLRA 905, 909 (1998) (Nat'l Border Patrol Council). As in other arbitration cases, including those where violations of law are alleged, the Authority defers to an arbitrator's findings of fact. See, e.g., United States Dep't of Commerce, Patent and Trademark Office, 52 FLRA 358, 367 (1996). [ v57 p466 ]
Here, there is no reason to believe that statutory ULPs were excluded from the scope of the parties' negotiated grievance procedure. As a result, if a statutory ULP claim was properly before the Arbitrator, he had authority to resolve it. However, while the Union clearly alleged a statutory ULP during the steps of the grievance process, the issues the Arbitrator describes as having been framed by the parties for the Arbitrator did not include a reference to a statutory ULP. Also, the parties did not stipulate to the issues to be resolved. Therefore, the record is not clear whether a statutory ULP claim was an issue that had been specifically submitted to be resolved by arbitration. In this connection, it is possible that the Arbitrator did not formulate the issues to include a statutory ULP claim because the Union did not formally submit any such claim to be resolved. If that is the case, then the Arbitrator's statement regarding his authority to resolve ULPs would be dictum, because statutory ULP findings by the Arbitrator would not be essential to resolving the Union's claim that the Agency's actions violated the parties' agreement. It is also possible that the Arbitrator did not formulate the issues to include a statutory ULP claim, though such a claim was properly submitted, because he mistakenly believed that it was not within his authority to resolve statutory ULPs. If that is the case, then an analysis of the merits of the Union's statutory ULP claim would be essential to resolving this case.
Because it is necessary for us to know whether a statutory ULP claim was properly submitted to the Arbitrator in this case, and it is our practice to defer to an arbitrator's authority to formulate the issues, we direct the Arbitrator, on remand, to clarify whether the Union's statutory ULP claim was properly submitted to him. Cf. United States Dep't of the Navy, Navy Pub. Works Ctr., Norfolk, Va., 54 FLRA 338, 341 (1998) (when the parties do not stipulate an issue to be submitted to arbitration, the arbitrator's formulation of the issues is accorded substantial deference by the Authority). Our decision to defer to an arbitrator's authority to formulate the issues is consistent with our precedent of remanding cases for resolution by the arbitrator, absent settlement by the parties, where the arbitrator erroneously concluded that he or she did not have authority to resolve an issue of law. See, e.g., NFFE, Local 858, 47 FLRA 481 (1993) (award in which arbitrator erroneously determined that he lacked authority to resolve whether implementation of an Equal Opportunity/Civil Rights critical element was consistent with law remanded to parties for resubmission to arbitrator for resolution); Alabama Ass'n of Civilian Technicians, 52 FLRA 1386 (1997) (award in which arbitrator erroneously determined that he had no jurisdiction to resolve request for attorney fees remanded to parties for resubmission to the arbitrator for purposes of rendering award on merits of attorney fee question).
In the event the Arbitrator decides, on remand, that the issues presented for arbitration included a statutory ULP claim, we note several principles concerning resolution of ULPs that the Arbitrator must observe in resolving the claim. First, as noted above, the Union bears the burden of proving the elements of the ULP claim by a preponderance of the evidence. Nat'l Border Patrol Council, 54 FLRA at 909. Second, prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See, e.g., Fed. Bureau of Prisons, Fed. Correctional Inst., Bastrop, Texas, 55 FLRA 848, 852 (1999).
Unless negotiations over a change would interfere with the exercise of a management right under § 7106, or would be inconsistent with federal law, government-wide rule or regulation, or an agency regulation for which a compelling need exists, an agency is required to bargain over the actual decision, or substance, of the change. Cf. NFFE Local 1379, 44 FLRA 1246, 1248 (1992) (§ 7106 of the Statute removes from the duty to bargain specified management rights; § 7117 of the Statute excludes from the duty to bargain matters that are inconsistent with federal law, government-wide rule or regulation, or an agency regulation for which a compelling need exists). In cases where the agency has decided to exercise a management right under § 7106(a), the agency may nonetheless be obligated to bargain over its impact and implementation. See, e.g., Warner Robins, 53 FLRA at 1668.
If the Arbitrator finds, on remand, that the substance of the Agency's decision was not itself subject to negotiation, then the Arbitrator must analyze whether the Agency was obligated to bargain over the impact and implementation of its decision. An agency is obligated to bargain over the impact and implementation of its decision if the resulting changes have a more than de minimis effect on conditions of employment. See Dep't of Health and Human Serv., Social Sec. Admin., 24 FLRA 403, 407-08 (1986) (SSA) (Authority found that agency was not obligated to bargain over impact and implementation of its decision to temporarily reassign employee). The standard for determining whether a particular change is more than de minimis requires an examination of the particular facts and circumstances in each case, with principal emphasis placed on an assessment "of the nature and extent of the effect or reasonably [ v57 p467 ] foreseeable effect of the change on conditions of employment of bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved." SSA, 24 FLRA at 408; See also Social Sec. Admin., Malden Dist. Office, Malden, Massachusetts, 54 FLRA 531, 536 (1998).
We also note that the Agency's decision to effect the change in the online research service used by employees may be encompassed by § 7106(b)(1) of the Statute. Section 7106(b)(1) states, as relevant here, that agencies and unions may, at the election of the agency, negotiate on "the technology, methods, and means of performing work[.]" This section includes the way in which an agency performs its work and "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." See IFPTE, Local 49, 52 FLRA 813, 818 (1996). If the Arbitrator finds that the Agency's decision was encompassed by § 7106(b)(1), and there had been an election to bargain over that matter, then the Union would be entitled, by virtue of that election, to bargain over the substance of the Agency's decision. If, on the other hand, the Arbitrator finds that the Agency has not elected to bargain, then the principles described in the preceding two paragraphs would apply.
This case is remanded to the Arbitrator, absent settlement by the parties, for resolution consistent with the Authority's decision. [n4]
Footnote # 1 for 57 FLRA No. 87
Footnote # 2 for 57 FLRA No. 87
Although the Union filed a second grievance regarding bargaining on an Agency memorandum on the use of e-mail and other government communication systems, the Union does not except to the Arbitrator's findings relating to that grievance. Accordingly, that matter will not be addressed here.
Footnote # 3 for 57 FLRA No. 87
Conditions of employment for the purposes of this Agreement are defined as personnel policies, practices and matters, whether established by rule, regulation, or otherwise, affecting working conditions . . . .
Award at 22.
Footnote # 4 for 57 FLRA No. 87