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U.S. Federal Labor Relations Authority

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United States, Department of Veterans Affairs, Va Regional Office, St. Petersburg, Florida (Agency) and American Federation of Government Employees, Local 1594 (Union)

[ v58 p549 ]

58 FLRA No. 133



LOCAL 1594




May 16, 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 Wallace M. Rudolph 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 found that the Agency improperly suspended the contractual flexiplace program and ordered the Agency to notify employees that the program remained in effect and make employees whole for any lost pay or benefits resulting from the suspension. [n2]  For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      Late in 2001, the head of the Agency prescribed new workload standards for regional offices. In response to the new standards, on or about December 11, 2001, management of the regional office in this case issued a letter temporarily suspending the memorandum of understanding (MOU) that established an alternate workplace, or flexiplace, program. The suspension of the program occurred without consultation with the Union as required by ¶ 12 of the MOU. The grievance in this case alleged that, by this action, the Agency violated ¶ 12 of the MOU. The Arbitrator stated the issue in the case in these same terms.

      The Agency claimed that, in temporarily suspending the flexiplace program, it had not violated the MOU because an emergency existed and, under § 7106(a)(2)(D) of the Statute, it had the right to take necessary steps to deal with that emergency. Specifically, the Agency maintained that § 7106(a)(2)(D) authorized it to determine when an emergency exists.

      The Arbitrator determined that suspension of the flexiplace program was "an amendment, modification[,] or a renegotiation" of the program which, under ¶ 12, required consultation with the Union. According to the Arbitrator, to justify suspending the program without consultation, the Agency needed to demonstrate that an emergency existed. The Arbitrator found that "[a] fair reading of the [S]tatute does not support the claim of the Agency that it is the sole judge of either . . . the existence of or the duration of the emergency." Award at 3.

      In particular, relying on a dictionary definition of the term "emergency" as meaning "a sudden state of danger, requiring immediate action," the Arbitrator concluded that, in the circumstances of the case, the Agency's action was not in response to an emergency. Id. The Arbitrator found that the emergency claimed by the Agency was the order of the head of the Agency to process more files. According to the Arbitrator, the order "was not induced by some outside force not under control of the Agency." Id. The Arbitrator also found that alternative means were available to the Agency for dealing with the workload, such as temporary details of individual experienced employees to train new employees.

      The Arbitrator also noted that the Agency subsequently indicated that it would reestablish the flexiplace program if the Union would agree to modifications. The Arbitrator found that this action "strongly suggests" that the Agency's decision to suspend the flexiplace program "did not relate to an emergency in workload" but [ v58 p550 ] constituted an attempt by the Agency to force the Union "to accept changes in the MOU." Id. The Arbitrator concluded that the Agency violated ¶ 12 of the MOU.

      As remedies, the Arbitrator ordered that: (1) any employee who lost wages, annual leave, or other entitlement because the Agency suspended the flexiplace program "may file a claim against the [A]gency for such losses;" (2) any employee who would have been eligible to be assigned to the flexiplace program during the period from December 11, 2001 to the date of the award, and who wishes to apply for the program, must have their application processed immediately; and (3) the Agency "post on the regular bulletin boards a notice telling all employees" that the flexiplace program under the MOU "is in effect." Id. at 4.

III.     Positions of the Parties

A.     Agency's Exceptions

      According to the Agency, its regional offices process benefits claims of veterans. The Agency describes the determination of whether a veteran is entitled to benefits as "rating." The Agency states that the employees who are covered by the MOU are journeymen who perform the rating process. The Agency claims that it suspended the flexiplace program because: (1) there was a "great increase in veterans . . . moving to Florida;" (2) Congress mandated that the Agency find more veterans "`eligible' for benefits;" and (3) the agency head "mandated new workload and accountability standards . . . ." Exceptions at 3. In addition, the Agency maintains that claims for benefits had "almost doubled" and there was "an alarming number of aged cases[.]" Further, the Agency states that claims that were "`ready to rate,'" so that they could be worked on at home, were "growing scarce." Id. In this context, the Agency asserts that management declared an emergency because "not making their quota for rating cases might lead to loss of jobs." Id. In order to deal with the situation, the Agency states, it needed to call employees on the flexiplace program back to its offices "temporarily in order to have them available to mentor and assist the many new [employees] who had been hired to deal with the overload of work[.]" Id. at 4.

      The Agency contends that the award is deficient under § 7122(a)(1) because it is contrary to § 7106(a)(2)(D) of the Statute. The Agency argues that the Arbitrator improperly found that, since the head of the agency was not an outside force that was not under the control of the regional office, the situation in its offices did not constitute an emergency. According to the Agency, since the case concerns its regional offices, the head of the agency is an outside force whose actions are not controlled by those offices. The Agency also notes the other factors cited above and maintains that an emergency is not only a "`sudden'" event, but "can be caused by slow accretion of events that lead to the eventual awareness of a crisis[.]" Id. at 7.

      Moreover, the Agency asserts, under Authority precedent, management is "the determiner of when an emergency exists." Id. Specifically, the Agency claims that "a sudden increase in work, the inability to get that work done timely without `more hands on deck' [is] clearly within the scope of [§] 7106(a)(2)(D)." Id. at 8. Noting that management also has the right, under § 7106 of the Statute, to determine its organization, direct employees, and assign work, the Agency contends that, in this case, management was exercising these rights and "was within its right to act unilaterally in an emergency." Id. at 9. Further, the Agency argues that the Arbitrator failed to address the portion of the MOU which provides that the flexiplace program should not negatively impact the regional office.

      The Agency requests that the Authority: (1) set aside the award; and (2) find that, as damages were not pled at the hearing, the Arbitrator "is without authority to make a determination as to damages . . . ." Id. at 10.

      The Agency also contends that the award is deficient under § 7122(a)(2) because the Arbitrator exceeded his authority. Specifically, the Agency claims that the portion of his award dealing with leave and other benefits is outside the Arbitrator's authority because "there was nothing in the grievance that requested an award for `annual leave or other entitlements.'" Exceptions at 9. According to the Agency, "the Arbitrator is without authority to make a determination as to damages . . . ." Id. at 10.

B.     Union's Opposition

      The Union concedes that the Agency has the right to determine whether there is an emergency and the right to assign work. The Union contends, however, that the Arbitrator correctly found that "the evidence should establish [that] there was such an `emergency'" . . . . Opposition at 5. In this regard, the Union argues that the Agency "has not provided any objective evidence showing an `emergency' actually existed or currently exists . . . ." Id. at 6. The Union also argues that, although the Agency asserted that the MOU required that the flexiplace program should not negatively impact the regional office, it provided no testimony or evidence which showed such a negative impact. [ v58 p551 ]

      As to the Agency's exceeded authority exception, the Union states that the Arbitrator has the authority to make whole employees who participated in the flexiplace program. The Union notes that, as the parties did not agree to the issues, the Arbitrator framed the issues. According to the Union, the Arbitrator resolved the issues in favor of the Union and, therefore, he had the authority to fashion a remedy. The Union contends that the remedy is "sufficiently linked" to the award. Opposition at 7.

IV.     Analysis and Conclusions

A.     The Award is not Deficient under § 7122(a)(1) of the Statute on the Ground that it is Contrary to Law

      The Agency's contention that the award is contrary to § 7106(a)(2)(D) 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 Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      When an agency asserts that an award is contrary to management's rights under § 7106(a) of the Statute, the Authority applies the framework set forth in United States Dep't of the Treasury, Bu. of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). Upon a finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test. Under prong 1, the Authority examines whether the award provides a remedy for a violation of either 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. BEP, 53 FLRA at 153. If the award provides such a remedy, then the Authority will find that the award satisfies prong 1 and will address prong 2. Under prong 2 of BEP, 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, the Authority will find that the award satisfies prong 2.

      Management's right, under § 7106(a)(2)(D), to take whatever actions may be necessary to carry out the agency's mission during emergencies includes the right to: (1) independently assess whether an emergency exists, see, e.g., AFGE, Locals 696 and 2010, 29 FLRA 1174, 1175 (1987); and (2) decide what actions are needed to address the emergency, see, e.g., NFFE, Local 1655, 49 FLRA 874, 875-76 (1994) (NFFE, Local 1655) (citing Tidewater Virginia FEMTC, AFL-CIO, 31 FLRA 131, 132 (1988)).

      However, the Authority has never held that, pursuant to § 7106(a)(2)(D), an agency is free to label any particular set of circumstances an emergency and act unilaterally. Rather, the Authority has held generally with regard to management's rights that:

an agency is not necessarily free of any evidentiary burden with respect to the exercise of its rights under § 7106 of the Statute. At a minimum, an agency must support its claim that a given action constitutes the exercise of such a right. . . . Moreover, an agency has a burden to support a determination made pursuant to the exercise of a management right. . . .

SSA, Chicago Region, Cleveland Ohio Dist. Office, University Circle Branch, 56 FLRA 1084, 1088-89 (2001) (citations omitted) (SSA, Chicago Region).

      The Authority has upheld arbitration awards and the decisions of Administrative Law Judges in which the arbitrator or the judge found that an agency's claim that an emergency existed was unsupported by the record in the case. See, e.g., United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 41 FLRA 860, 876 (1991) (Authority denied exception, based on § 7106(a)(2)(D), to arbitrator's finding that record evidence fell short of establishing the agency's claim that an emergency existed); Army and Air Force Exchange Service and Army and Air Force Exchange Service, Oakland Army Base Oakland, Calif., 25 FLRA 740 (1987) (Authority upheld judge's finding that no emergency justified unilateral change in license verification policy). Cf. United States Customs Service, Washington, D.C., 29 FLRA 307 (1987) (Authority adopted Judge's decision finding no violation of the Statute for failure to give notice of change because Congressional pressure and intelligence information resulted in an emergency necessitating action). Thus, agency claims of an emergency justifying unilateral action are not unreviewable. Under Authority precedent, where such claims are not supported by the record, they will not be sustained.

      Although the Agency has demonstrated that the regional office faced an increasingly heavy workload, we agree with the Arbitrator that the circumstances presented here do not rise to the level of an emergency within the meaning of § 7106(a)(2)(D). That is, the Agency's exception does not demonstrate that the Arbitrator's award affects management's right to take action [ v58 p552 ] in an emergency within the meaning of § 7106(a)(2)(D). Specifically, the Agency has not shown that the Arbitrator's finding that the record did not establish that an emergency existed is legally deficient. [n3]  It is unnecessary, therefore, to address prongs 1 and 2 of the BEP framework. See, e.g., United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Ctr., Distribution Depot Red River, Texarkana, Tx., 56 FLRA 690, 694 (2000).

      Accordingly, we deny the Agency's exception.

B.     The award is not deficient under § 7122(a)(2) of the Statute on the ground 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 when they award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). When the parties fail to stipulate to the issue, the arbitrator may formulate it on the basis of the subject matter of the grievance. See United States Dep't of Defense, Education Activity, Arlington, Va., 56 FLRA 887, 891 (2000) (citations omitted). Such formulations are accorded substantial deference. Id. (citation omitted). Moreover, an arbitrator is granted broad discretion to fashion a remedy that the arbitrator considers appropriate. See United States Dep't of Defense Dependents Schools, 49 FLRA 658, 663 (1994).

      The parties did not stipulate to an issue. Without expressly defining any issues, the Arbitrator discussed: (1) whether the Agency violated ¶ 12 of the MOU by suspending the flexiplace program and, if so, (2) what remedies should be afforded employees affected by that contractual violation. Award at 2-4. See also AFGE, Local 3615, 57 FLRA 19, 21 (2001). The Agency has not demonstrated that by defining and considering those issues the Arbitrator exceeded his authority to resolve the grievance presented to him. Specifically, the Agency has not shown that, by his award, the Arbitrator afforded relief to employees who were not encompassed within the grievance.

      Further, the Agency misstates the nature of the Arbitrator's remedy. The Arbitrator did not order the Agency to pay "damages." Rather, the Arbitrator required the Agency to consider employee claims concerning any lost wages, annual leave, or other entitlements which resulted from the Agency's suspension of the flexiplace program in violation of ¶ 12 of the MOU. In this regard, arbitrators routinely issue make whole remedies for violations of collective bargaining agreements. See, e.g., SSA, Chicago Region, 56 FLRA at 1090; United States Dep't of the Navy, Naval Surface Warfare Center, Indian Head, Md., 55 FLRA 596, 598 (1999); United States Dep't of Housing and Urban Development, Grand Rapids, Mich., 55 FLRA 219, 220-21 (1999). As long as such remedies are consistent with law, including the Back Pay Act, 5 U.S.C. § 5596, and are not otherwise deficient, they are within the remedial authority of the arbitrator. The Agency has not argued or demonstrated that this aspect of the award is contrary to law or otherwise deficient.

      Accordingly, we deny the Agency's exceeded authority exception.

V.     Decision

      The Agency's exceptions are denied.

Concurring opinion of Member Pope:

      I agree with the majority's decision to deny the Agency's exceptions. I write separately, however, because I conclude, for different reasons than the majority, that the award does not affect the Agency's right to take actions during emergencies.

      The Statute gives federal agencies the right to "take whatever actions may be necessary to carry out the agency mission during emergencies." 5 U.S.C. § 7106(a)(2)(D) (emphasis added).

      In finding that the Agency's increased workload did not constitute an emergency under the Statute, the Arbitrator explicitly found that "alternative methods of dealing with th[e] workload were available to the Agency." Award at 3. Specifically, the Arbitrator found that the Agency "had authority to temporarily detail any rating specialists individually to help train new rating specialist[s] to meet the workload crises." Id. The Agency does not except to this factual finding. Therefore, consistent with the Authority's precedent, I would defer to the Arbitrator's finding, and I would conclude that the Agency's suspension of the flexi-place program was not "necessary to carry out the agency mission" within the meaning of the Statute. 5 U.S.C. § 7106(a)(2)(D). Accordingly, I would find that the award does not affect management's right under § 7106(a)(2)(D) of the Statute.

Footnote # 1 for 58 FLRA No. 133 - Authority's Decision

   Member Pope's concurring opinion is set forth at the end of this decision.

Footnote # 2 for 58 FLRA No. 133 - Authority's Decision

   The Agency requests a stay of the award insofar as it requires the reimplementation of the flexiplace program. Exceptions at 10. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards. See United States Agency for International Development, 53 FLRA 187, 187 n.1 (1997). An award is automatically stayed when timely exceptions to the award are filed. See United States Dep't of Education, 50 FLRA 34, 34 n.1 (1994). Accordingly, we deny the Agency's request for a stay.

Footnote # 3 for 58 FLRA No. 133 - Authority's Decision

   The Agency also states that the award is contrary to management's rights, under § 7106 of the Statute, to determine its organization, direct employees, and assign work. The Agency provides no support for these claims and we find that they are nothing more than bare assertions. Under Authority case precedent, bare assertions provide no basis for finding an award deficient. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000). Accordingly, we deny these additional exceptions.