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58 FLRA No. 96
DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
FORT WORTH, TEXAS
OF MACHINISTS AND
March 27, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator A. Dale Allen 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 did not file an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated an Agency regulation by refusing to pay the grievant at the supervisory rate for certain training. For the reasons that follow, we find that the Agency has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency established an acting supervisor program that allows employees to compete for acting supervisor positions within their particular specialties. The Agency also created a 1990 Acting Pay Policy (APP), which, as relevant here, authorizes supervisory pay for training related to acting supervisory duties. [n1] The grievant, who qualified for an acting supervisor position, attended training relating to supervisory functions and then sought the supervisory rate of pay for the time spent in training. When the Agency refused, the Union filed a grievance under the parties' negotiated grievance procedure alleging that the Agency violated the APP. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issues as: "[D]id the [Agency] improperly refuse to grant [the] . . . grievance requesting Acting Supervisor pay for the . . . training . . . in accordance with the [APP] . . . ? If so, what is the appropriate remedy?" Award at 3.
The Arbitrator noted that, at the hearing, the Agency conceded the merits of the grievance and argued only that the grievance was not arbitrable. According to the Arbitrator, the Agency maintained that the grievant was acting in a supervisory role during the training and, therefore, he was required to file his grievance under the Agency's administrative grievance procedure, which is designed to accommodate supervisory grievances, and not under the negotiated grievance procedure.
The Arbitrator stated that it is a common practice in the private sector for bargaining unit employees to retain their rights and protections under a bargaining agreement during a temporary upgrade into a supervisory capacity, and noted his rulings in two private sector arbitration awards as examples. He acknowledged that the private sector practice might not be valid in the public sector or under the parties' agreement.
The Arbitrator also found that the terms of the parties' agreement and the APP supported the Union's position that the grievance was arbitrable. Regarding the agreement, the Arbitrator relied on Article 29, §§ 2(1) and (3)(b), which provide that "the negotiated grievance procedure shall apply to any complaint . . . by any employee or the Union concerning any matter relating to the employment of that employee" or "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." Id. at 3. The Arbitrator found that the supervisory pay at issue in this case constitutes a question regarding conditions of employment under [ v58 p398 ] § 2(3)(b). The Arbitrator also relied on the fact that the APP applies only to "nonsupervisory employees" temporarily utilized in supervisory positions and specifically does not apply to supervisors.
Noting the Agency's concession that it would have paid the grievant if he had filed under the administrative grievance procedure, the Arbitrator stated that it appeared that the same remedy would have been granted under either procedure. The Arbitrator also stated that the evidence suggested that the parties' past practice supported a finding of arbitrability in these circumstances. Accordingly, the Arbitrator concluded that the grievant was entitled to file a grievance under the negotiated grievance procedure and ordered the Agency to pay the grievant at the supervisory rate for the training.
III. Agency's Exceptions
The Agency claims that the award is contrary to law because during the time the grievant attended training, he was "undoubtedly" a supervisor and, therefore, was not permitted to use the negotiated grievance procedure. Exceptions at 5. In support of this claim, the Agency cites 5 U.S.C. § 7112(b)(1), which provides, as relevant here, that "[a] unit shall not be determined to be appropriate . . . if it includes . . . any management official or supervisor[.]" According to the Agency, the award means that a supervisor or member of a different bargaining unit could file a grievance under the negotiated grievance procedure. The Agency also contends that the award is contrary to law because the Arbitrator considered the general status of private sector law and his rulings in two private sector arbitration awards related to the issue of the instant case.
The Agency further asserts that the Arbitrator erred by basing his decision on a finding of past practice because that issue was never before him. Finally, the Agency argues that the Arbitrator improperly relied on the fact that the underlying substance of the grievant's complaint was meritorious even though the merits were not at issue.
IV. Analysis and Conclusions
A. The award is not contrary to law.
The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.
The Statute requires that parties' collective bargaining agreements contain grievance procedures. See 5 U.S.C. § 7121. The term "grievance" is defined in § 7103 (a)(9) of the Statute as "any complaint" by "any employee" concerning any matter relating to the employment of the employee. The term "employee" is defined in § 7103(a)(2) as an "individual employed in an agency," but does not include a "supervisor or a management official." As such, non-employees, such as supervisors, may not file grievances under a negotiated grievance procedure. See AFGE, Local 32, 51 FLRA 491, 499 (1995) (there is "no question that supervisory and management personnel are not granted bargaining or other rights under the Statute").
The Agency claims that the grievant was not permitted to use the negotiated grievance procedure because he was considered a supervisor, and was thus outside the unit, during the training at issue. However, whether or not the grievant was outside the unit while in training, it is clear that he did not file the grievance during that time period; he filed the grievance at a time when he was in the unit. See Exceptions at 2 (training on March 12-16, 2001); Joint Exhibit 1 Attachment (grievance filed July 17, 2001). In addition, the grievant's claim arose only after the conclusion of the training, and the Agency concedes, consistent with its plain wording, that the APP grants unit employees entitlements to pay for attending training related to duties performed as a temporary supervisor. In these circumstances, there is no basis to conclude that the award would permit supervisors and other non-unit employees to use the grievance procedure, and precedent supports a conclusion that the award is not inherently contrary to law. See Hess v. IRS, 892 F.2d 1019, 1020 (Fed. Cir. 1989) (unit employee may use negotiated grievance procedure to challenge adverse action based on conduct occurring while employee was temporarily in a supervisory position); see also United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 858-59 (2000) (Member Wasserman concurring) (where arbitrator construed temporary promotion article to extend to temporary supervisory promotions, unit employee could grieve lack of temporary supervisory promotion); IRS, Brookhaven Service Ctr., 11 FLRA 486, 487-88 (1983) (grievance arbitrable where grievant was a unit employee when dispute arose, the grievance was filed, and arbitration was invoked, but was promoted to a supervisor before the hearing).
The Agency further contends that the award is contrary to law because the Arbitrator considered private [ v58 p399 ] sector law and his rulings in two private sector arbitration awards related to the issue of the instant case. However, nothing in § 7122(a)(1), which provides the grounds upon which a party may file exceptions to an arbitration award, precludes an arbitrator from considering private sector case law in rendering an award, and the Agency has not cited any other law with which this action conflicts. Moreover, while awards involving private sector disputes are not controlling in the Federal sector, those awards may provide guidance. See United States Dep't of the Treasury, IRS, 51 FLRA 310, 319 (1995). Here, the Arbitrator looked to private sector awards for guidance, and did not consider it controlling. In this regard, the Arbitrator acknowledged that the private sector practice may not be valid in the public sector or under the parties' agreement. See Award at 10-11.
Based on the foregoing, we find that the Agency has not demonstrated that the award is contrary to law.
B. The award does not fail to draw its essence from the parties' agreement.
The Agency argues that the Arbitrator erred by basing his decision on a finding of past practice. Because past practice claims involve contract interpretation, we construe this argument as a claim that the award fails to draw its essence from the agreement. See AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 101 (2001).
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. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Although the Arbitrator stated that the parties' past practice supported a finding of arbitrability, there is no indication that this played a part in his determination that the grievance was arbitrable. Therefore, it constitutes dicta and does not provide a basis on which to find the award deficient. See, e.g., United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Office of Marine & Aviation Operations, Marine Operations Ctr., Va., 57 FLRA 430, 434 (2001). Accordingly, the award does not fail to draw its essence from the parties' agreement.
C. The Arbitrator did not exceed his authority.
The Agency argues that the Arbitrator improperly relied on the fact that the underlying substance of the grievant's complaint was meritorious even though the merits were not at issue. We construe this contention as a claim 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 persons who are not encompassed within the grievance. See, e.g., United States Dep't of Veterans Affairs, Eastern Kansas Health Care Sys., 57 FLRA 440, 441-42 (2001). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issue is accorded substantial deference. AFGE, Local 916, 50 FLRA 244, 246-47 (1995).
In this case, there is no indication in the record that the parties stipulated the issue to be resolved. One of the issues as framed by the Arbitrator involved the determination of an appropriate remedy. The Arbitrator appears to have used the Agency's concession as to the merits of the pay claim as a basis on which to formulate a remedy. Thus, as the issue of an appropriate remedy was before the Arbitrator for resolution, it was appropriate for the Arbitrator to consider the Agency's concession. As such, we find that the Agency has not demonstrated that the Arbitrator exceeded his authority.
The Agency's exceptions are denied.
Footnote # 1 for 58 FLRA No. 96 - Authority's Decision
2. This policy applies to nonsupervisory . . . employees at the [Agency] who are selected under competitive procedures to act temporarily in supervisory positions. It does not cover supervisors acting in higher level supervisory jobs . . . .
. . . .
4(b)(1). An employee must actually work as an acting supervisor in order to receive acting pay. Thus, acting pay is not authorized for an employee on training (unless training is related to supervisory duties) . . . .
Award at 3-4.