American Federation of Government Employees, Local 1547 (Union) and United States, Department of Defense, Defense Commissary Agency, Luke Air Force Base, Arizona (Agency)

[ v59 p149 ]

59 FLRA No. 27

LOCAL 1547






September 12, 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 T. Zane Reeves 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 dismissed the grievance, finding that the Agency's refusal to bargain over a reduction in force (RIF) did not violate the parties' agreement or law. For the reasons that follow, we find that the Union has failed to demonstrate 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 Union received notice in December 2001 that the Agency would conduct a RIF affecting certain departments in September 2002. The Union submitted a demand to bargain over the RIF in April 2002. In September 2002, the Union filed a grievance alleging that implementation of the RIF, then planned for November, would violate: (1) 5 U.S.C. § 3403 because the Agency was converting full-time positions into part-time positions; and (2) Article 45, § 4 of the parties' agreement because the Agency had not provided the Union with adequate notice prior to [ v59 p150 ] the effective date of the RIF. [n1]  The grievance was unresolved and submitted to arbitration, where the Arbitrator stated, in the portion of the award titled "Issue," that the "Union alleges that the Agency refused to negotiate a pending . . . RIF of [Agency] personnel . . . in violation of 5 USC § 340[3] and Article 45, § 4 of the [parties'] agreement." Award at 2.

      Relying on Authority precedent, the Arbitrator stated that when a union has not submitted a bargaining request within contractual time limits after receiving adequate notice that the agency intends to change a condition of employment, the agency is free to implement the change without bargaining. See Award at 14 (citing United States Dep't of the Treasury, United States Customs Serv., Port of N.Y. and Newark, 57 FLRA 718 (2002)). The Arbitrator also stated that under Authority precedent, an agency provides adequate notice when it apprises the union of the scope and nature of: (1) the proposed change in condition of employment; (2) the certainty of the change; and (3) the planned timing of the change. See id.

      Applying this precedent, the Arbitrator determined that the Agency's December 2001 letter provided adequate notice to the Union of the pending RIF. The Arbitrator determined that despite this notice, the Union did not request bargaining within the time limits in the parties' agreement and, therefore, the Agency's refusal to bargain over the pending RIF did not violate 5 U.S.C. § 3403 or the parties' agreement. Accordingly, the Arbitrator dismissed the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator erred by addressing the Agency's obligation to bargain over the RIF, and failing to address whether implementation of the RIF would violate 5 U.S.C. § 3403 and Article 45, § 4 of the parties' agreement, the two issues raised in the grievance. The Union also contends, in this regard, that the Arbitrator failed to address the Union's claim that the Agency refused to provide requested information to assist the Union in preparation for arbitration.

      In addition, the Union argues that the award is contrary to 5 U.S.C. § 3403(a) because the Agency improperly abolished full-time positions through the RIF and offered affected employees the same positions on a part-time basis.

      Finally, the Union claims that the Arbitrator failed to conduct a fair hearing by refusing to consider a Union letter to the Agency clarifying its grievance. The Union asserts that this letter argued that the RIF violated 5 C.F.R. § 351.201 because it was being conducted for impermissible reasons. [n2]  According to the Union, the Arbitrator also refused to consider Agency testimony demonstrating that the RIF was being conducted to circumvent bargaining obligations.

B.     Agency's Opposition

      The Agency argues that the Arbitrator properly addressed the issues presented in the grievance and that the Union's information request was not an issue before the Arbitrator. The Agency further argues that the Arbitrator correctly found that the RIF did not violate 5 U.S.C. § 3403(a). Finally, the Agency asserts that the Arbitrator's refusal to consider the Union's clarification letter and broaden the scope of the grievance was proper.

IV.      Analysis and Conclusions

A.     The Arbitrator did not exceed 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 United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995). We construe the Union's contention that the Arbitrator erred by addressing the Agency's obligation to bargain over the RIF, and failing to addre