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59 FLRA No. 136
DEPARTMENT OF DEFENSE
AMERICAN FORCES RADIO AND TELEVISION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2776
March 19, 2004
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 Richard W. Calister filed by the Agency under § 7122 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 violated the parties' agreement and/or memorandum of understanding (MOU) by changing the number of shifts of employees on alternative work schedules (AWS), and directed the Agency to return to the status quo.
For the following reasons, we deny the exceptions.
II. Background and Arbitrator's Award
As relevant here, when the Agency changed the number of shifts of employees on AWS, the Union filed a grievance. The grievance was unresolved and was submitted to arbitration, where the parties stipulated the issues as follows: "Did the Agency violate Article XX of the Collective Bargaining Agreement and/or the 1997 Memorandum of Understanding between the parties? If so, what is the remedy?" [n2] Award at 2.
The Arbitrator found that the parties had agreed to an MOU establishing an AWS consisting of five shifts. The Arbitrator also found that the Agency notified the Union of its intention to change to a three-shift AWS, and that the Union declined to negotiate.
The Arbitrator determined that Article IV of the parties' agreement states that either party may notify the other party of its desire to negotiate a supplemental agreement, but does not state that either party is required to engage in such negotiations. [n3] The Arbitrator concluded that nothing in the agreement granted the Agency the right to change the shifts without the Union's agreement to negotiate over the change. Accordingly, the Arbitrator concluded that the Agency violated Article XX of the agreement "and/or" the MOU by implementing the change, and he directed the parties [ v59 p760 ] to return to the status quo ante, specifically, the five-shift AWS. Id. at 7.
III. Positions of the Parties
A. Agency Exceptions
The Agency makes four arguments that the award is contrary to § 7106(b)(1) of the Statute. First, the Agency claims that the change in shifts constitutes a change of tours of duty within the meaning of § 7106(b)(1) and, thus, is a permissive subject of bargaining. Second, the Agency contends that it is not required to bargain over permissive subjects. Third, the Agency argues that the Union waived its right to bargain by inaction after the Agency provided the Union with notice of the proposed change. Fourth, the Agency maintains that bargaining is not precluded by the Authority's "covered by" doctrine, because that doctrine does not apply where a union, rather than an agency, refuses to bargain.
The Agency also argues that the award fails to draw its essence from the parties' agreement. In this regard, the Agency contends that the MOU states that it is non-precedential and is not intended to waive management rights, and thus, "the [A]rbitrator's finding that management did in fact waive its right to elect to bargain under 5 U.S.C. § 7106(b)(1) when it signed the 1997 MOU" is contrary to the MOU. Exceptions at 33.
B. Union Opposition
As an initial matter, the Union claims that, under § 2429.5 of the Authority's Regulations, the Authority should not consider the "document labeled as Exhibit E, Attachment 2 to the [A]gency's Post-Hearing Brief." Opp'n at 2. According to the Union, this document "was not presented at the hearing but was introduced by the agency as an attachment in an attempt to prevent the [U]nion from rebutting the new post-hearing evidence." Id. at 2-3.
The Union also claims that the award is not contrary to § 7106(b)(1) of the Statute. In this connection, the Union contends that the MOU concerns AWS, which is fully negotiable without regard to § 7106 of the Statute, and because it reflects the Agency's enforceable election to bargain over § 7106(b)(1) matters. Further, the Union claims that the "covered by" doctrine is inapplicable here.
Finally, the Union contends that the award draws its essence from the parties' agreements. According to the Union, "[t]he purpose of the phrase `non-precedential' [in the MOU] was to denote that the agreement could not and would not be used as an authoritative example which must be followed in further bargaining on the subject[,] not that it could not be enforced." Id. at 6.
IV. Preliminary Matter
Section 2429.5 of the Authority's Regulations provides, in pertinent part, that "[t]he Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator." 5 C.F.R. § 2429.5. The Authority will consider matters that were presented to an arbitrator in a post-hearing brief, even if those matters were not presented during the arbitration hearing. See United States Dep't of the Treasury, IRS, Atlanta, Ga., 44 FLRA 622, 625 (1992) (IRS Atlanta).
The Union contends that a document attached to the Agency's exceptions -- an employee handbook concerning the AWS program -- was not submitted at the arbitration hearing. Opp'n at 2. However, the Union does not dispute that this document was submitted to the Arbitrator in the Agency's post-hearing brief. See id. at 2-3. Because it is undisputed that the document was submitted to the Arbitrator as part of the Agency's post-hearing brief, there is no basis for declining to consider it on § 2429.5 grounds, and we consider it. See IRS Atlanta, 44 FLRA at 625.
V. Analysis and Conclusions
A. The award is not contrary to § 7106(b)(1) of the Statute.
The Agency claims that the award is contrary to law. The Authority reviews questions of law de novo. See NTEU, Chapter 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
It is undisputed that the contract provisions at issue here concern the numbers, types and grades of employees assigned to tours of duty within the meaning of § 7106(b)(1). Matters covered by § 7106(b)(1) are negotiable at the Agency's election. See, e.g., Tidewater Va. Fed. Employees Metal Trades Council, 58 FLRA 561, 563 (2003). However, contrary to the Agency's argument, the fact that the provisions concern a § 7106(b)(1) matter does not permit the Agency to [ v59 p761 ] change those provisions. In this connection, although agencies are not obligated to bargain over subjects covered under § 7106(b)(1), once they agree to provisions concerning such subjects, those provisions are fully enforceable. See ACT v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994); United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 393, 395 (2000) (IRS Wash.), reconsideration denied, 56 FLRA 935; United States Dep't of Labor (OSHA), 34 FLRA 573, 577-78 (1990) (DOL). Because it is undisputed that the provisions at issue here concern a § 7106(b)(1) matter, the provisions are fully enforceable.
The Agency makes four arguments in support of its claim that the award is contrary to § 7106(b)(1). The first and second arguments -- that the change in shifts constitutes a permissive subject of bargaining and that the Agency is not required to bargain over permissive subjects of bargaining -- are misplaced. Specifically, those arguments relate to whether the Agency was obligated to bargain over the provisions. As discussed above, if parties bargain over permissive subjects and reach agreement on those subjects, then the agreements reached are fully enforceable.
The Agency's third argument -- that the Union waived its right to bargain by inaction after notice of the proposed change -- also is misplaced. Although a union may waive a right to bargain by failing to request bargaining following adequate notice of a proposed change in conditions of employment, see United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999), the Union in this case did respond to the proposed change by insisting that the Agency abide by the parties' enforceable agreements. There is no basis for finding that the Agency was permitted to violate those agreements merely because it notified the Union that it intended to do so.
With regard to the Agency's fourth argument -- that the Union may not rely on the "covered by" doctrine to avoid bargaining -- the "covered by" doctrine applies as a defense to an alleged failure to satisfy a statutory bargaining obligation. See SSA, Balt., Md., 57 FLRA 459, 460-61 (2001) ("covered by" doctrine is defense to alleged "unlawful refusal to bargain"). This case does not involve an allegation that a party failed to meet a bargaining obligation under the Statute. Thus, the "covered by" doctrine is inapposite here.
For the foregoing reasons, we conclude that the provisions at issue here are fully enforceable under § 7106(b)(1) of the Statute, and thus, the award enforcing those provisions is not contrary to § 7106(b)(1). [n4] Accordingly, we deny the exception.
B. The award draws its essence from the parties' agreement and the MOU.
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See DOL, 34 FLRA at 575.
The Arbitrator found that the MOU was enforceable and that the Union was not compelled to negotiate a change in it. Award at 5. The Agency argues that, in so doing, the Arbitrator failed to take into account its argument that the MOU states that it is non-precedential and does not waive management rights. By finding that the Agency violated the collective bargaining agreement and/or the MOU by changing the shifts, we conclude that the Arbitrator implicitly rejected the Agency's argument. The Agency does not demonstrate that the Arbitrator's rejection of its argument, and his interpretation of the MOU and the agreement, is unfounded, implausible, irrational or in manifest disregard of the agreement. We note, in this connection, that the Union's explanation of the term "non-precedential" -- that the MOU was not intended to set a precedent for future bargaining on AWS -- is a plausible interpretation of the MOU.
In addition, contrary to the Agency's claim, the Arbitrator did not find that the Agency "waive[d] its right to elect to bargain under 5 U.S.C. § 7106(b)(1)." Exceptions at 33. Instead, the Arbitrator found that the Agency "does not dispute that operative law requires adherence to terms of an existing negotiated labor agreement whose terms establish fixed work schedules," and he determined that nothing in the parties' agreement or the MOU "affords the Agency the right to make the change it did without obtaining the agreement of the Union to negotiate it, at least to the point where impasse might permit such unilateral implementation." Award at 4, 5. Thus, rather than finding that the Agency waived a right to elect to bargain under § 7106(b)(1), the Arbitrator merely interpreted and enforced the terms of the parties' agreement and MOU. Thus, the Agency's claim is misplaced. [ v59 p762 ]
For the foregoing reasons, we conclude that the award draws its essence from the parties' agreement and the MOU. Accordingly, we deny the exception.
The Agency's exceptions are denied.
Concurring opinion of Chairman Cabaniss:
I write separately to address an issue that is touched on by one of the parties but is not directly dispositive of the case. The Agency had claimed that the Arbitrator had improperly found a waiver by the Agency regarding the Agency's right to not negotiate over matters covered by 5 U.S.C. § 7106(b)(1). However, Authority precedent appears to draw a distinction between an agency's seeming waiver of its rights under § 7106(b)(1) and an agency's election to bargain over matters covered by § 7106(b)(1). See United States Dep't of the Treas., IRS, Wash., D.C., 56 FLRA 393, 396 (2000) (election to bargain over § 7106(b)(1) matters constitutes an exercise, "not an abandonment or relinquishment of[,] the right" to negotiate § 7106(b)(1) matters). Upon review of that precedent, I now conclude there is no substantive difference between an agency's election to bargain over § 7106(b)(1) matters and a waiver of an agency's right to not bargain over § 7106(b)(1) matters. Unlike matters falling under § 7106(a), over which agencies are prohibited from negotiating, Congress permitted agencies to bargain -- or not bargain -- over § 7106(b)(1) matters depending upon what the agency decides to do. I fail to see any distinction where both terms describe the waiver of a right to not do something. Thus, an agency's arguments as to whether or not it bargained a matter under § 7106(b)(1) presents a waiver argument.
Why all this becomes important is because of a much bigger issue. There appears to be an inherent tension between a party's waiver of a statutory right, which is subject to a de novo review (i.e., contrary to law) in arbitration proceedings, and an arbitrator's interpretation of a collective bargaining agreement to determine whether or not a party waived that right through negotiation, in which cases traditional thought has been to engage in a deferential essence analysis rather than a de novo analysis because of the contract interpretation aspects. How these competing interests are resolved will be determined by other litigation.
Footnote # 1 for 59 FLRA No. 136 - Authority's Decisions
Footnote # 2 for 59 FLRA No. 136 - Authority's Decisions
Section 1. . . .
c. Except when the EMPLOYER determines that the organization would be seriously handicapped in carrying out its function, or the costs would be substantially increased, the EMPLOYER agrees to provide the following;
. . . .
(2) By mutual agreement, an alternative work schedule of ten (10) hours a day for four (4) days a week;
. . . .
Section 2. Individual temporary changes in the tours of duty . . . shall be in compliance with applicable laws and regulations, and this negotiated Agreement.
Exceptions, Attachments, Ex. 6, Tab C at 32, 33.
The Memorandum of Understanding provides, in pertinent part:
This agreement is entered into . . . regarding Management's proposed change in working conditions regarding employee work shifts. The parties agree that this agreement is non-precedential. Anything contained herein and any action or inaction on the part of Management in negotiating this agreement will not serve as a precedent or a claim of any waiver of Management or Union rights or defenses or any other purpose. . . .
1. Management agrees to implement a 4/10 work schedule . . . . This schedule will consist of the following five shifts . . . .
Footnote # 3 for 59 FLRA No. 136 - Authority's Decisions
Article IV, Section 4 of the parties' agreement provides, in pertinent part: "During the duration of this agreement, either party may notify the other . . . of [its] desire to negotiate supplemental agreements." Exceptions, Attachments, Ex. 6, Tab C at 13.
Footnote # 4 for 59 FLRA No. 136 - Authority's Decisions