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59 FLRA No. 27
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
LUKE AIR FORCE BASE, ARIZONA
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 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 address the two issues raised in the grievance, as well as the Union's claim that the Arbitrator failed to address the Union's request for information, as asserting that the Arbitrator exceeded his authority.
In the absence of a stipulation of the issues by the parties, we accord substantial deference to the arbitrator's framing of the issue. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, [ v59 p151 ] Tenn., 52 FLRA 920, 924 (1997). Where there is no stipulation, the fact that an arbitrator's formulation of an issue differs from issues presented in the grievance does not provide a basis for finding that an arbitrator exceeded his or her authority. See Sport Air Traffic Controllers Org., 55 FLRA 771, 774-75 (1999); AFGE, Local 1741, 55 FLRA 174, 176 (1999).
Here, the parties did not stipulate the issue to be resolved at arbitration and the Arbitrator formulated the issue as whether the Agency's refusal to bargain over the RIF violated law and the parties' agreement. In finding that the Agency's refusal to bargain did not violate either law or the parties' agreement, the award is directly responsive to the issue as formulated by the Arbitrator. Accordingly, we find that the Union has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception.
B. The award is not contrary to law.
The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. NTEU, Chap. 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. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. Id.
The Union contends 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. Here, as stated above, the Arbitrator framed the issue, in pertinent part, as whether the Agency's refusal to bargain violated 5 U.S.C. § 3403(a). The issue of the improper abolishment of full-time positions was not part of the issue as framed by the Arbitrator. Moreover, the Union makes no argument that § 3403(a) requires bargaining and nothing in this provision provides for such a requirement. Accordingly, we find that the Union has not demonstrated that the award is contrary to 5 U.S.C. § 3403(a), and we deny the exception.
C. The Arbitrator did not fail to conduct a fair hearing.
The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995).
The Union asserts that the Arbitrator improperly refused to consider the Union's letter to the Agency clarifying that the RIF also violated 5 C.F.R. § 351.201 and Agency testimony supporting this claim. [n3] However, the Union has not pointed to any evidence in the record supporting these allegations. A union's "unsubstantiated allegations cannot establish that the Arbitrator . . . denied it a fair hearing." AFGE, Local 1406, 54 FLRA 150, 155 (1998). Moreover, an arbitrator is not required to specify or discuss specific items of evidence on which an award is based or which otherwise were considered by the arbitrator. See AFGE, Local 704, 57 FLRA 468, 473 (2001). Furthermore, even assuming that the Arbitrator did refuse to consider the letter and testimony, as the arbitration was limited to the issue of bargaining, the letter and testimony relied on by the Union would not be pertinent or material. As such, we find that the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing, and we deny the exception.
The Union's exceptions are denied.
Footnote # 1 for 59 FLRA No. 27 - Authority's Decision
5 U.S.C. § 3403 provides, in relevant part, that "[a]n agency shall not abolish any position occupied by an employee in order to make the duties of such position available to be performed on a part-time career employment basis."
Article 45, § 4 provides, in relevant part, that the agency "will provide . . . pertinent information to the Union . . . regarding [a] RIF . . . at least 120 days prior to the effective date of a RIF." Exceptions, Attachment 11 at 1.
Footnote # 2 for 59 FLRA No. 27 - Authority's Decision
5 C.F.R. § 351.201 provides that an agency may seek to reduce employment levels for reasons such as "lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee's position due to erosion of duties . . . ."
Footnote # 3 for 59 FLRA No. 27 - Authority's Decision
We note that, contrary to the Union's contention, the letter does not specifically cite 5 C.F.R. § 351.201. See Exceptions, Attachment 5. Rather, the letter states only that the Union believed that the Agency's violation in conducting the RIF was not limited only to a violation of § 3403, the law cited in the original grievance.