[ v58 p378 ]
58 FLRA No. 92
OF GOVERNMENT EMPLOYEES.
DEPARTMENT OF VETERANS AFFAIRS
WEST PALM BEACH, FLORIDA
March 21, 2003
Before the Authority: Dale Cabaniss, Chairman, and
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 James L. Reynolds 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 found that the Agency did not violate law or the parties' agreement by failing to notify the Union of overtime assignments to three employees, or by coercing employees into requesting compensatory time in lieu of overtime pay.
For the reasons that follow, the Union's exceptions regarding 5 U.S.C. §§ 6101 and 7114 are dismissed, and its remaining exceptions are denied.
II. Background and Arbitrator's Award
The Agency informed three probationary employees that it needed work performed on a weekend but that overtime pay was not available. It provided the employees the choice between: (1) having their workweeks temporarily changed to include three weekends as part of their regularly scheduled workweeks; or (2) working one weekend on an overtime basis in return for compensatory time. The employees chose to perform the work on an overtime basis and received compensatory time.
Subsequently, the Union filed a grievance. When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator framed the issue as follows:
Did the Employer violate the Collective Bargaining Agreement or related Federal Law and regulations by offering [the] employees only the options of changing their work schedules so as to avoid overtime pay, or accepting compensatory time off for work performed on June 2, 2001.[ [n2] ] If so what shall the remedy be? Did this issue require the Agency to negotiate with the Union over changes in working conditions, and if so, was the Union notified and afforded the opportunity to negotiate these conditions.
Award at 1.
The Arbitrator found that the Agency did not present overtime pay as an option because it was operating at a financial loss. Applying 5 C.F.R. § 551.531 (§ 531), the Arbitrator also found that the employees were not coerced or intimidated into accepting compensatory time. [n3] In this connection, the Arbitrator found that the Union conceded that management did not "overtly coerce or intimidate" the employees. Id. at 15. He determined that, instead, the employees were motivated by a desire to "minimiz[e] . . . disturbance to their weekends" when they chose the overtime option, because pursuant to Article 20, Section 3(J) of the parties' agreement, the other option - temporarily changing their administrative [ v58 p379 ] workweeks - would result in them working three weekends, rather than one. [n4] Id. at 18. He also determined that, although the employees "did not relish" either option presented to them, they were given two options and "did . . . request" compensatory time under § 531(a). Id. at 16, 17.
Finally, the Arbitrator found that the Agency did not violate Article 46 of the parties' agreement by failing to provide the Union with notice of the overtime assignments. [n5] In this regard, the Arbitrator determined that Article 46 relates to changes "generally," and does not mandate negotiations over individual, limited-duration overtime assignments. Id. at 20 (emphasis in original). The Arbitrator found this interpretation "supported by the clear language of Article 20 § 3(J) that grants to management the right to schedule personnel, and provides only that the Union would be consulted on the procedural issues described in the section." Id. The Arbitrator found that to interpret the contract otherwise would be "absurd" and "would unreasonably limit management in scheduling routine assignments." Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the Arbitrator misapplied 5 U.S.C. § 6101(2)(A), § 7114 of the Statute, and Article 46 of the parties' agreement by finding that the overtime assignments do not constitute changes in conditions of employment within the meaning of the parties' agreement. [n6] Exceptions at 1, 2. The Union also argues that the Arbitrator erroneously found that management's rights under § 7106(a) of the Statute are not limited by contract provisions negotiated pursuant to § 7106(b)(2) and (3). In addition, the Union asserts that the award is contrary to § 531 because the employees were coerced and because overtime pay was not an option presented to the employees.
Further, the Union challenges the Arbitrator's finding that the Agency was operating at a financial loss and argues that the Agency was capable of paying bonuses to management and overtime pay to other employees. Finally, the Union asserts that the award "subtract[s] from the provisions of Article 46, Section 3 regarding management's responsibility to allow the Union an opportunity to be present when discussing general conditions of employment." [n7] Id. at 2.
B. Agency's Opposition
According to the Agency, the Arbitrator correctly found that the employees requested the compensatory time and that the parties' agreement did not require the Agency to bargain with the Union over the overtime assignments.
IV. Preliminary Matters
Under 5 C.F.R. § 2429.5 (§ 2429.5), the Authority will not consider issues that could have been, but were not, presented to the arbitrator. [n8] United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 985, 987 (2000). There is no evidence that the Union argued, before the Arbitrator, that the Agency's actions violated either 5 U.S.C. § 6101 or § 7114 of the Statute. In the latter connection, there is no evidence that the Union argued that the Agency violated the Statute, as opposed to the parties' agreement, by failing to provide the Union with notice and an opportunity to bargain over the overtime assignments. [n9] Specifically, the Union's arguments before the Arbitrator did not cite § 7114, see Award at 13, and the Arbitrator neither addressed a statutory bargaining obligation, see id. at 20-22, nor listed § 7114 as a pertinent legal provision, see id. at 7-9. Rather, the only provisions regarding notice and bargaining cited by the Arbitrator were contractual provisions. See id. at 5-7.
We note that, unlike this case, in cases where the Authority has reviewed whether an arbitral interpretation [ v58 p380 ] of contractual wording is consistent with the Authority's interpretation of the Statute, statutory standards were raised to and/or addressed by the arbitrator. See, e.g., NAGE, Local R14-143, 55 FLRA 317, 318-19 (1999) (Chair Segal concurring in part and dissenting in part); United States Dep't of Def., Def. Mapping Agency, Aerospace Ctr., St. Louis, Mo., 43 FLRA 147, 152 (1991). There is no reason advanced that the Authority should extend its review to other cases, especially since finding a statutory unfair labor practice raised every time a contract provision contains wording similar to that describing a statutory obligation could significantly expand the number of decisions subject to judicial review, thereby undercutting Congress' intent that arbitration awards be final. See Overseas Education Association v. FLRA, 824 F.2d 61, 66 (D.C. Cir. 1987) ("An interpretation that permitted judicial review of any labor dispute in which the underlying conduct could be characterized as a statutory unfair labor practice drastically limits the finality which Congress intended to attach to arbitral awards.").
Because the Union did not make arguments regarding § 6101 and § 7114 before the Arbitrator, but could have done so, we dismiss those exceptions pursuant to § 2429.5.
V. Analysis and Conclusions
A. The award is not contrary to law.
The Union argues that the award is contrary to law, specifically, 5 U.S.C. § 7106 (§ 7106) and 5 C.F.R. § 551.531. The Authority reviews questions of law 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 standard of de novo review, the Authority determines 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 determination, the Authority defers to the arbitrator's underlying factual findings. See id.
1. Section 7106 of the Statute
The Union also argues that the Arbitrator erred in concluding that management's rights under § 7106(a) of the Statute are not limited by contract provisions negotiated pursuant to § 7106(b)(2) and (3). We construe this argument as challenging the Arbitrator's statement that interpreting Article 46 of the parties' agreement as requiring management to bargain over individual overtime assignments "would unreasonably limit management in scheduling routine assignments." Award at 20. However, by making that statement, the Arbitrator was not finding that management rights are unlimited or that Article 46 is unenforceable. Instead, he was merely interpreting Article 46 as being more limited than the Union's interpretation. As the Union does not demonstrate that the award is inconsistent with § 7106, we deny the exception.
2. 5 C.F.R. § 551.531
Under § 531, compensatory time may be granted "[a]t the request of an employee" and an employer may not coerce employees or interfere with their "rights to request or not to request compensatory time." The regulation thus requires that employees be given an uncoerced option of whether or not to request compensatory time; it does not require the payment of overtime in any particular circumstance. In particular, there is no indication that pay is required if the employee is permitted to refuse to work overtime hours but chooses to work those hours in return for compensatory time. Put simply, nothing in the regulation prohibits an employer from offering the employee the choice of overtime work for compensatory time or no overtime work at all.
The Union argues that the employees were coerced or intimidated within the meaning of § 531. Section 531 does not explain what actions "intimidate, threaten, or coerce" employees. However, the regulatory history of § 531 provides that this wording is "consistent with 5 U.S.C. 6132(a)(1), which provides that an employee may not threaten, coerce, or intimidate any other employee under a flexible work schedule (or threaten to do so) for the purpose of interfering with such an employee's rights to request or not to request compensatory time off." 62 Fed. Reg. 28305, 28306 (May 23, 1997) (emphasis added). Accordingly, in determining the meaning of "intimidate, threaten, or coerce" under § 531, we find it appropriate to consider the definition of those terms set forth in 5 U.S.C. § 6132. Cf. AFGE, Local 987, 57 FLRA 551, 556-57 (2001) (in determining meaning of wording of one statute, Authority considered interpretations of similar wording in different statutes).
5 U.S.C. § 6132(b) states that "the term `intimidate, threaten, or coerce' includes, but is not limited to, promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or effecting or threatening to effect any reprisal (such as deprivation of appointment, promotion, or compensation)." Thus, although not intended to be an exhaustive list, the types of statements prohibited by § 6132(b) are promises to confer benefits, or threats to effect reprisals, particularly in matters concerning appointment, promotion, or compensation. [ v58 p381 ]
The Arbitrator did not make any findings that the Agency promised to confer benefits, or threatened to effect reprisals, in matters concerning appointment or promotion. Rather, the Arbitrator determined that "[n]o evidence was received that would indicate the employees could not freely select from the two options that were available," and he found that the employees' main motivation in choosing compensatory time was personal convenience. Award at 17. Determination of an individual's subjective motivation constitutes a factual finding. See NFFE, Local 1658, 55 FLRA 668, 672 (1999); NTEU, 54 FLRA 1197, 1203 (1998). As noted previously, in applying a standard of de novo review, the Authority defers to an arbitrator's underlying factual findings. See, e.g., NFFE, Local 1437, 53 FLRA at 1710. Thus, we defer to the Arbitrator's finding that the employees' subjective motivation in accepting compensatory time -- when provided the option of having their work schedules changed -- was for personal convenience.
In these circumstances, we find that the Arbitrator did not err in finding that the Agency did not coerce, intimidate, or threaten the employees into accepting compensatory time for overtime. Accordingly, we find that the award is not contrary to § 531, and we deny the exception.
B. The award draws its essence from the parties' agreement.
The Union argues that the Arbitrator erred in finding that a change in the administrative workweek did not constitute a change in conditions of employment for the purpose of the notice requirements set forth in Article 46 of the parties' agreement. We construe the argument as asserting that the award fails to draw its essence from the parties' agreement. For an award to be deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) 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 an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Arbitrator found that Article 46 "is clearly intended to relate to changed conditions of employment . . . for bargaining unit employees generally," not to overtime assignments, limited in duration, of individual employees. Award at 20. The Union does not demonstrate that the Arbitrator's interpretation of Article 46 is irrational, unfounded, implausible, or in manifest disregard of the parties' agreement. Accordingly, the Union does not demonstrate that the award fails to draw its essence from the parties' agreement, and we deny the exception.
C. The award is not based on a nonfact.
The Union disputes the Arbitrator's finding that the Agency is operating at a financial loss. We construe this argument as asserting that the award is based on a nonfact. To establish that an award is based on a nonfact, the excepting 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 had disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).
The Union does not demonstrate that the Arbitrator's finding is a central fact underlying the award and is clearly erroneous, but for which the Arbitrator would have reached a different result. Therefore, the exception does not provide a basis for finding the award deficient, and we deny the exception.
The exceptions regarding 5 U.S.C. §§ 6101 and 7114 are dismissed, and the remaining exceptions are denied.
Dissenting Opinion of Chairman Cabaniss:
I write separately to dissent on the sole issue of whether the Union's right to engage in bargaining mandated by the Statute was a part of the case before the Arbitrator, and hence whether the Union's exceptions based upon its rights under § 7114 of the Statute should be denied under § 2429.5 of our Regulations as not having been raised to the Arbitrator.
As discussed by the majority at pages 3-4 of its decision, the Arbitrator found that Article 46, Section 4 of the parties' collective bargaining agreement was not violated because the Agency did not fail to "provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees" when the Agency failed to advise (and bargain with) the Union regarding the individual, limited-duration overtime assignments at issue [ v58 p382 ] in this case. Article 46, Section 4 concludes by stating that "[a]ll notifications shall be in writing to the appropriate Union official, with sufficient information to the Union for the purpose of exercising its full rights to bargain." Award at 7. The award also notes how the Arbitrator framed the issue, to wit:
Did the Employer violate the Collective Bargaining Agreement or related Federal Law and regulations [by its actions here]. Did this issue require the Agency to negotiate with the Union over changes in working conditions, and if so, was the Union notified and afforded the opportunity to negotiate over those conditions.
Id. at 4. I conclude from the above that neither the language of the provision in question, nor the manner in which the Arbitrator framed the matters before him, mandate against finding that this case involves the Union's statutory rights to bargain with the Agency regarding changes to conditions of employment. In that regard, the Authority has consistently noted that an exclusive representative's right to engage in collective bargaining under our Statute includes, inter alia, the right to bargain over changes to conditions of employment proposed by an agency. See, e.g., Fed. Bur. of Prisons, Fed. Corr. Inst., Bastrop, Tx., 55 FLRA 848, 852 (1999) (FCI Bastrop) (before implementing changes in conditions of employment affecting bargaining unit employees, agency required to provide the exclusive representative with notice and an opportunity to bargain to the extent required over aspects of change that are within duty to bargain, and prior to implementing changes).
I am not aware of any express finding by the Arbitrator that the issue before him did not involve the Union's statutory rights to engage in bargaining, although I am aware that the Arbitrator references contract provisions but no statutory interest. Our precedent, however, notes that where the parties have a contract provision that mirrors a provision of the Statute, the Authority "must exercise care" to ensure that the arbitrator's interpretation is consistent with the Statute. See, e.g., NAGE, Local R14-143, 55 FLRA 317, 319 (1999) (NAGE) (Chairman Segal concurring in part and dissenting in part) (quoting United States Dep't of Defense, Defense Mapping Agency, Aerospace Ctr, St. Louis, Mo. 43 FLRA 147, 153 (1991) (DMA)). The Authority in DMA also noted that where the parties have such a contractual provision that is intended to be interpreted in a manner that is different from the Statute (although that interpretation would still have to be not inconsistent with the Statute), "that should be made known to the arbitrator" who can then advise whether there is a contractual or statutory matter at issue. 43 FLRA at 153. As relates to the present case, there is nothing in the record to indicate that either party asserted that the Agency's obligation under Article 46, Section 4 of the collective bargaining agreement differed in any respect from the Agency's bargaining obligations under the Statute, or that the Arbitrator reached that conclusion sua sponte.
One could arguably assert that DMA and similar cases are not binding precedent because that case dealt with a contract provision mirroring some express language of the Statute (there the language of § 7106). However, I note that, while our Statute nowhere sets out a "provision" or express statement regarding what actions constitute an agency's obligations under the Statute to engage in good faith bargaining, the Authority's precedent interpreting the Statute (and the legal parameters of good faith bargaining under it) are as equally legally binding on an agency as any express provisions found throughout the Statute. See, e.g., FCI Bastrop. I also note that the circumstances in NAGE were that the Authority also denied a union's contrary to law argument (violation of its bargaining rights under the Statute) when it found that the union had not explained how the parties' contract provision in question (dealing with impact and implementation bargaining), that the arbitrator had found no violation of, was any different than the union's bargaining entitlements under the Statute. NAGE, 55 FLRA at 317 n.2 & 318-19. Therefore, I would find that the holdings in DMA and NAGE mandate that a contract provision mirroring a party's rights and obligations under the Statute must also be interpreted consistent with the Authority's precedent regarding those same rights and obligations, absent some evidence offered by a party (and the provision subsequently interpreted by the arbitrator) to show that the provision has some different meaning.
As the record is silent regarding any evidence proffered by the parties regarding the statutory or contractual nature of the provision in question here, or any arbitral interpretation of the provision that resolves the question, our options would be to either remand the case to the parties, absent settlement, for resubmission to the Arbitrator on the issue of contractual versus statutory bargaining obligation, or resolve it on our own if it is possible to do so (and I believe it is possible to do so). However, I believe it appropriate, and necessary, to establish guidance on this matter for the Authority and arbitrators to follow.
In that regard, the statutory duty to bargain is comprehensive and presumes that the parties are subject to the Statute's mandatory bargaining requirements in any particular circumstance absent evidence to the contrary [ v58 p383 ] of some exception to that process, such as a matter not constituting a "condition of employment" or the bargaining demand being impermissibly in conflict with an agency's rights under § 7106 of the Statute, or there has been a waiver of the exclusive representative's bargaining rights. Other considerations would be that there has been no change to conditions of employment or the Authority's "covered by" doctrine precludes the imposition of a bargaining obligation in a particular circumstance (this list is illustrative only and is not inclusive).
The Authority's precedent recognizes two authorities for the creation of bargaining duties, the duty to bargain under the Statute and a duty to bargain established by contract. Contractual duties to bargain are found in such circumstances where the parties have agreed to contract provisions imposing requirements dealing with what are known as "permissive" subjects of bargaining, such as bargaining over matters falling within § 7106(b)(1) of the Statute or conditions of employment affecting managers and supervisors. See, e.g., AFGE, Local 3529, 57 FLRA 172, 176 (2001) (DCAA) (duty to bargain over § 7106(b)(1) matters) and NATCA, Rochester Local, 56 FLRA 288, 291-92 (2000) (NATCA) (duty to bargain over work assignments of supervisory personnel). However, as noted in both cases, establishing a contractual obligation to bargain over permissive topics does not turn that contractual obligation into a statutory obligation. Id.
I submit that the converse is true, i.e., a contract provision reflecting a party's statutory duty to bargain does not negate or supplant the party's statutory rights, thereby becoming only a contractual duty to bargain. For an opposite conclusion to be reached, the Authority (and arbitrator) would have to establish and conclude that a waiver of the party's statutory rights has taken place, which is consistent with the Authority's comments in DMA and similar cases. More specifically, I conclude that an agency's duty to bargain has to be either contractual or statutory in nature, and if the provision in question does not address a permissive topic of negotiation, then the agency duty to bargain reflected in the provision is statutory in nature.
In the present matter, the contractual provision addresses changes to conditions of employment, which clearly is not permissive in nature and which clearly falls within the mandatory scope of bargaining established by the Statute. Accordingly, I would address the Union's § 7114 arguments in this case rather than find that the Union's statutory bargaining rights are not implicated by the terms of the provision at issue here.
I note that this issue is a recurring one, and one about which I have already previously written in dissent. See United States Dep't of Defense, Nat'l Guard Bur., Adjutant General, Kansas Nat'l Guard, 57 FLRA 934 (2002) (Chairman Cabaniss dissenting). In that case the Authority found no statutory rights or obligations invoked by a contractual provision discussing "impact and implementation" bargaining between the parties based upon the unexplained conclusion by the arbitrator there that the bargaining issue was contractual rather than statutory in nature. And, the assertion of the majority notwithstanding, this was a case in which "statutory standards were raised to and/or addressed by the arbitrator." The agency in that case raised a "covered by" statutory unfair labor practice defense to the arbitrator: the arbitrator in turn acknowledged that defense to be statutory in nature (by noting that it was a defense to a refusal to bargain charge before the Authority) but refused to consider it by stating that he was not charged with enforcing the Statute by adjudicating statutory unfair labor practice claims. Id. That arbitral comment, parenthetically, is clearly wrong: arbitrators can and do adjudicate statutory unfair labor practice claims and thereby enforce the Statute. Given that erroneous disclaimer by the arbitrator, I did not grant any deference to his holding that the issue before him was "contractual" in nature.
I am also mindful of the Overseas Education Association decision cited to by the majority, and the need to be cautious about issues that could have been characterized as unfair labor practices but weren't. However, in the present case one must start from the fact that the relevant language in the present case has its genesis in, and naturally flows from, the parties' statutory bargaining obligations. As already noted, there is nothing in the Arbitrator's award that detracts from or is at odds with the statutory nature of those rights set out by the parties in their agreement. In these circumstances, then, absent some remand to the Arbitrator to clarify whether there was or was not any statutory interests before him in this case, or some other evidence in the record reflecting that the parties did not intend this language to have its usual and customary meaning vis-a-vis the parties' statutory duty to bargain, I would rely upon our precedent, supra, to "exercise care" to ensure that statutory interests are adequately reflected in his interpretation of the provision(s).
Because most collective bargaining agreements in the federal sector reflect a variety of statutory rights and interests in their provisions, this area of statutory versus contractual represents a real pitfall for parties attempting to rely on those provisions. I would facilitate the resolution of those issues, as I do here, by establishing more clearly that such contractual language retains its statutory flavor absent some express evidence (to include arbitral findings) to the contrary.
Footnote # 1 for 58 FLRA No. 92 - Authority's Decision
Footnote # 2 for 58 FLRA No. 92 - Authority's Decision
Footnote # 3 for 58 FLRA No. 92 - Authority's Decision
(a) At the request of an employee . . ., the head of an agency (or designee) may grant compensatory time off from an employee's tour of duty instead of payment under § 551.501 for an equal amount of irregular or occasional overtime work.
. . . .
(c) An agency may not require that an employee be compensated for overtime work under this subpart with an equivalent amount of compensatory time off from the employee's tour of duty. An employee may not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any other employee for the purpose of interfering with such employee's rights to request or not to request compensatory time off in lieu of payment for overtime hours.
Footnote # 4 for 58 FLRA No. 92 - Authority's Decision
Footnote # 5 for 58 FLRA No. 92 - Authority's Decision
Article 46, Section 4 provides, in pertinent part: "The Department shall provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees." Award at 7.
Footnote # 6 for 58 FLRA No. 92 - Authority's Decision
It appears that the Union intended to cite 5 U.S.C. § 6101(a)(2)(A), which provides, in pertinent part: "The head of each Executive agency . . . shall . . . establish a basic administrative workweek of 40 hours for each full-time employee in his organization."
Footnote # 7 for 58 FLRA No. 92 - Authority's Decision
Footnote # 8 for 58 FLRA No. 92 - Authority's Decision
Footnote # 9 for 58 FLRA No. 92 - Authority's Decision
We note that, although the first sentence of the Arbitrator's issue statement refers to "Federal Law," that reference is in connection with the issue of whether the Agency violated "Federal Law . . . by offering [the] employees only the options of changing their work schedules . . . or accepting compensatory time off." Award at 1. By contrast, the final sentence of the issue statement, which concerns the obligation to bargain, does not refer to "Federal Law." See id.