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59 FLRA No. 89
DEPARTMENT OF LABOR
BUREAU OF LABOR STATISTICS
OF GOVERNMENT EMPLOYEES
December 19, 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 an exception to an award of Arbitrator Suzanne R. Butler 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 exception.
The Arbitrator issued an initial award in which she sustained in part, and denied in part, a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to give the Union notice regarding implementation of new computer software and hardware. The Arbitrator subsequently issued a final award providing numerous remedies. The Agency excepts to certain aspects of this final award.
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 exception.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency violated Articles 28 and 30 of the parties' agreement by failing to provide the Union and the National Office Safety and Health Committee with notice of the implementation of new computer software and hardware. [n1] As relevant here, the parties stipulated the issues before the Arbitrator as follows:
[W]hat shall be the disposition of the grievance?If the grievance is sustained in whole or in part, what shall be the proper remedy?
Initial Award at 2.
The Arbitrator found that neither Article 28 nor Article 30 applied to computer software, and denied this aspect of the grievance. The Arbitrator also found that the Docutech Photocopying Machine (Docutech machine) was installed in the Agency's Copy Center without notice to the Union and that both Articles 28 and 30 apply to the Docutech machine. Accordingly, the Arbitrator sustained this part of the grievance. [n2]
Regarding the remedy, the Arbitrator characterized the case as involving "complex, novel questions" better resolved by the parties, and ordered them to attempt to negotiate an appropriate remedy. Id. at 29-30. The Agency and the Union were unable to agree on an appropriate remedy. As a result, the Arbitrator held a second hearing on the remedial issues.
In her final award, the Arbitrator rejected the Agency's remedy proposals because they were limited to concerns involving only the Docutech machine. In this connection, the Arbitrator stated that because she found that the Agency had violated Articles 28 and 30 by failing to give proper notice of the intention to implement "new technology, e.g., new computer hardware such as the Docutech . . . [m]achine," the proper remedy must include all computer hardware. Final Award at 16. The Arbitrator stated, in this regard, that the Docutech machine was never understood to be the only example of hardware installed without proper notice under the parties' agreement. Id. at 15-16.
The Arbitrator ordered, as relevant here, a cease and desist order, mandatory periodic information sharing pertaining to information technology, periodic reviews of technology training, ergonomics training for all Bureau of Labor Statistics (BLS) employees, and the creation of a Joint Information Technology Team (JITT) for the purpose of discussing changes in information technology. [ v59 p534 ]
III. Positions of the Parties
A. Agency's Exception
The Agency contends that the Arbitrator exceeded her authority with regard to four aspects of the remedy.
First, the Agency contends that the issue of whether computerized hardware was covered by Article 30 was not before the Arbitrator and, thus, her inclusion of hardware in the cease and desist order and in the remedy requiring information sharing is beyond the scope of issues presented for resolution. In this regard, the Agency contends that the only hardware considered by the Arbitrator was the Docutech machine and that she made no reference to other types of hardware in setting out the issues in the initial award.
Second, the Agency asserts that the Arbitrator exceeded her authority by creating the JITT. In this regard, the Agency claims that the issue of what measures should be imposed on the Agency to inform employees of technology changes was not before the Arbitrator.
Third, the Agency claims that despite the Arbitrator's determination that the Agency did not violate the parties' agreement with regard to software, the award improperly includes remedies that involve software. Specifically, the Agency asserts that the remedies concerning the sharing of information regarding upcoming system changes, training in new technology, and the JITT require the Agency to discuss changes in computer software.
Fourth, the Agency contends that the requirement of ergonomics training for all BLS employees, regardless of whether they ever use a Docutech machine, is beyond the scope of the matter submitted for arbitration. In this regard, the Agency maintains that the only violation found by the Arbitrator concerned the Docutech machine and the notice provisions of Articles 28 and 30, and that the Arbitrator has improperly provided a remedy to employees who were not covered by the grievance.
B. Union's Opposition
The Union contends that the Arbitrator did not exceed her authority with respect to the remedies imposed. In this regard, the Union asserts that the record clearly demonstrates that the issue of whether computer hardware was covered by Article 30 was before the Arbitrator.
The Union also contends that the remedies concerning the sharing of information regarding upcoming system changes, training in new technology, and the creation of the JITT are directly responsive to the stipulated issue of determining a proper remedy for the Agency's violation of Article 30 of the parties' agreement. According to the Union, the fact that information regarding software may be shared indirectly as a result of discussing hardware is irrelevant.
The Union further asserts that a remedy of ergonomics training is responsive to the stipulated issues because the impact of new computer technology on employee safety and health was the subject of evidence at the hearing. In addition, the Union contends that this case involved an institutional grievance, filed on behalf of the bargaining unit, and that the Authority has found that a unit-wide award in such instances is within an arbitrator's remedy power. See Opposition at 22 (citing United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998)).
IV. Analysis and Conclusions
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996). The Authority, like the Federal courts, will accord an arbitrator's interpretation of the parties' stipulation of the issue the same substantial deference accorded an arbitrator's interpretation and application of a collective bargaining agreement. See United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 494 (2001) (citing United States Dep't of Housing & Urban Dev., 24 FLRA 442, 444 (1986)). Moreover, when an exception concerns whether the remedy awarded by the arbitrator exceeded the arbitrator's authority, both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. See AFGE, Local 916, 50 FLRA 244, 246-47 (1995) (citing Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986)).
The Agency contends that the issue of whether computerized hardware other than the Docutech machine was covered by Article 30 was not before the Arbitrator and, thus, her inclusion of hardware generally in various remedies is beyond the scope of issues presented for resolution. However, the Agency misstates the issues before the Arbitrator. As stated by the Arbitrator, and stipulated by the parties, the merits issue was [ v59 p535 ] "what shall be the disposition of the grievance[.]" Initial Award at 2. The grievance that is referenced in the stipulated issue alleged, among other things, violations of Article 30 and sought as remedies that the Agency notify the Union of all "computer hardware" introduced since 1993, and that it comply with the notification requirements of the parties' agreement. Exception, Attachment B at 1. Thus, there is no basis for the Agency's assertion that the issue before the Arbitrator was limited to the Docutech machine, and did not involve computer hardware generally.
There also is no basis for the Agency's assertion that the Arbitrator exceeded her authority by creating the JITT. Here, the Arbitrator determined that the Agency violated notice provisions of the parties' agreement with respect to the implementation of hardware and a stipulated issue before the Arbitrator was "[i]f the grievance is sustained in whole or in part, what shall be the proper remedy[.]" Initial Award at 2. The creation of the JITT requires the Agency to take actions -- sharing information pertaining to and discussing new computer hardware -- that are directly responsive to the alleged violations of failing to comply with the contract notification procedures. This remedy clearly falls within the broad discretion accorded an arbitrator to fashion a remedy that the arbitrator considers to be appropriate. See United States Dep't of Defense Dependents Schools, 49 FLRA 658, 663 (1994).
The Agency further asserts that the remedies concerning the sharing of information regarding upcoming system changes, training in new technology, and the JITT are beyond the scope of the Arbitrator's authority because they require the Agency to discuss changes in computer software, even though the Arbitrator found no violation with regard to the implementation of software. Contrary to the Agency's assertion, however, the remedies awarded by the Arbitrator are clearly limited to computer hardware. In this regard, the Arbitrator specifically granted the Agency discretion as to whether or not to include software in information sharing sessions with the Union. See Final Award at 19 n.4. There is also no reason to interpret the term "new technology," which is referenced in the training and JITT remedies, as including software. To the contrary, the Arbitrator defined this term as "computer hardware." See Final Award at 16. Accordingly, consistent with the award, we construe, and the parties should construe, the term as including only computer hardware and not software. See id. As such, the award does not include a remedy that was beyond the scope of the grievance.
Finally, the Agency contends that the requirement of ergonomics training for all BLS employees, regardless of whether they ever use a Docutech machine, is beyond the scope of the matter submitted for arbitration because the Arbitrator only found a violation regarding the Docutech machine, and because this awards a remedy to employees not included in the grievance. However, as explained above, the grievance was not limited to the Docutech machine. Further, while an arbitrator may not extend relief to employees not covered by a grievance, see, e.g., United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker AFB, Okla., 42 FLRA 680, 685 (1991), where a grievance is filed on behalf of a group of employees, it is appropriate to provide a remedy to employees included in that group. See United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1062 n.7 (2001). The grievance in this case, as framed by the Arbitrator, covered all BLS employees of the Agency and the remedy awarded applies to those employees only. Thus, the Agency has failed to demonstrate that the award applies to employees not included in the grievance.
Based on the foregoing, we find that the Agency has not demonstrated that the Arbitrator exceeded her authority.
The Agency's exception is denied.
Article 28 - Safety and Health
Section 1. General
It is the policy of the Department of Labor to provide and maintain for its employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm. . . . The Department's occupational safety and health program will comply with requirements of Executive Order 12196 and 29 CFR Part 1960.
Section 2. Committees
The Department agrees to establish Occupational Safety and Health Committees in accordance with the provisions of the Executive Order. . . .
a. Department of Labor Safety and Health Committee (Departmental Level)
. . . . [ v59 p536 ]
b. National Office Committee (Establishment Level)
. . . .
(k): The Committee shall have the opportunity to inspect new equipment to determine that it is free of hazards and safe for use before employees are permitted to operate the equipment.
The Department agrees to notify the Committee in a timely manner so an inspection can be made before the equipment becomes operational. This will include such new equipment as a printing press, bindery equipment, large automatic photocopying equipment, automated filing equipment, self-propelled machinery, and fork-lift equipment.
Article 30 - New Technology
Whenever the Department proposes to acquire or implement any mechanical device or system based upon new technology which may adversely impact on employees in the bargaining unit, the Department will notify the Union and, when requested, bargain over the adverse effect. Appropriate training for affected employees so as to enable them to maintain their present job status shall be among the principal considerations as part of such bargaining.
Footnote # 1 for 59 FLRA No. 89 - Authority's Decision
Footnote # 2 for 59 FLRA No. 89 - Authority's Decision