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60 FLRA No. 101
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
December 21, 2004
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 William P. Murphy 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 sustained in part a grievance alleging that the Agency violated the parties' agreement by denying the grievant's requests for official time.
For the reasons that follow, we set aside the portion of the award requiring the Agency to obtain the Union's agreement prior to denying requests from the grievant for official time, and we deny the remaining exceptions.
II. Background and Arbitrator's Award
The Union filed grievances alleging that the Agency violated Article 9, § 2P of the parties' agreement by denying official time requests of the grievant (a Union steward and local Vice-President) based on the Agency's claim that the grievant's work requirements prohibited his release to perform Union duties. [n1] The grievances were consolidated and submitted to arbitration.
The Arbitrator determined that Article 9, § 2P of the parties' agreement requires "some showing" by the Agency that work requirements prevent the release of an employee for Union duties. Award at 3. The Arbitrator rejected both the Union's claim that the agreement required the Agency to show a "compelling reason" to deny official time requests and the Agency's claim that the agreement required a "balancing" approach. Id. Instead, the Arbitrator determined that "a proper standard is that the reason for denial based on work requirements must be `sufficient and objectively determinable.'" Id.
The Arbitrator found that the grievant's supervisor routinely cited a particular case assigned to the grievant as the reason for denying her official time requests but that there was no evidence that the supervisor ever discussed the matter with the Union or the grievant. Applying the "sufficient and objectively determinable" standard, the Arbitrator found that the denials based solely on the work requirements associated with this one case violated Article 9, § 2P. [n2]
To remedy the Agency's violation of the agreement, the Arbitrator directed the following:
Management will not deny time to work on NTEU duties for the grievant in the future unless management FIRST resolves any disagreement with NTEU and can show why the grievant's work schedule will prohibit release.
Opposition at 2. [n3] The Arbitrator also granted the Union's request that "all hours denied [the grievant] . . . be awarded her as extra bank hours." Award at 5. [ v60 p507 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency excepts to the Arbitrator's remedies, contending that they fail to draw their essence from the parties' agreement and exceed the Arbitrator's authority.
The Agency asserts that the first remedy -- requiring the Agency to resolve disagreements with the Union prior to denying requests for official time -- conflicts with Article 9, § 2P of the parties' agreement because the agreement states only that disagreements "may" be referred to a higher-level official and that management "should" make a reasonable effort to contact the Union. Exceptions at 3. According to the Agency, the award makes "these optional. . . items mandatory." Id.
The Agency also contends that the second remedy --providing extra bank hours -- fails to draw its essence from the parties' agreement. The Agency asserts that the denial of requests for official time did not deplete the amount of bank hours available to the Union and, therefore, the remedy would result in the Union receiving more bank hours than mandated under the parties' agreement.
Finally, the Agency asserts that both remedies exceed the Arbitrator's authority. The Agency relies on Article 43, § 4.A.18 of the parties' agreement, which provides that an arbitrator does not have the "authority to add to, subtract from, alter, amend, or modify any provision of th[e] Agreement." Id. at 5. The Agency argues that both of the Arbitrator's remedies "surpass the limitations" set out in this provision by adding to, amending, or modifying the terms of the agreement. Id.
B. Union's Opposition
The Union claims that the first remedy draws its essence from the parties' agreement because it is not so unconnected to the purposes of the parties' agreement as to manifest an infidelity to the obligation of the Arbitrator. Opposition at 5. With regard to the second remedy, the Union claims that the Agency's exceptions fail to reference a provision of the agreement, statute, or regulation that prohibits restoration of improperly denied official time. The Union states that "the Arbitrator felt compelled to rectify the Agency's actions in such a way as to discourage future violations." Id. at 6.
IV. Analysis and Conclusions
A. The award, in part, fails to draw its essence from the parties' agreement.
For an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) 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; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
1. First remedy
Article 9, § 2P of the parties' agreement addresses requests for official time. As relevant here, the provision states that employees "will be released provided their work requirements. . . do not prohibit release." Award at 2-3. As the agreement does not specifically address the standard by which to determine whether work requirements prohibit release, there is no dispute that the Arbitrator was permitted to interpret it to require the Agency to provide "sufficient and objectively determinable" reasons for denials. Award at 3.
Article 9, § 2P also specifically addresses the Agency's obligations in the event there is a disagreement over denials of official time. In particular, the agreement provides that "if there is a disagreement" then the supervisor "may refer the matter to a higher level management official." Exceptions, Attachment 3 at 17. The agreement also provides that the higher level official "should make a reasonable attempt" to contact the Union "in an attempt to resolve the matter." Id.
Despite the fact that the parties clearly agreed that attempts to resolve disagreements were optional and that the Agency was required only to make a reasonable attempt to contact the Union, the Arbitrator imposed a remedy that prohibits the Agency from denying a request from the grievant for official time unless it "FIRST resolves any disagreement with NTEU and can show why the grievant's work schedule will prohibit release." Opposition at 2 (emphasis in original). In so doing, the Arbitrator imposed a requirement that is, on its face, inconsistent with the parties' agreement. [n4] In these circumstances, we find that this portion of the award does not represent a plausible interpretation of the parties' agreement and, as a result, it fails to draw its [ v60 p508 ] essence from the agreement. [n5] See SSA, Office of Labor Mgmt. Relations, 60 FLRA 66, 67 (2004).
2. Second remedy
Article 9, § 2I of the parties' agreement provides that stewards will be provided bank hours to perform Union duties. The Arbitrator determined that the Agency improperly denied several requests for official time and, as his award, directed the Agency to provide these hours as "extra bank hours." Award at 5.
Nothing in the parties' agreement prohibits an arbitrator from augmenting the Union's bank hours to remedy a refusal to grant official time, even though such a denial does not deplete bank hours. Therefore, on its face, the award is not irrational, implausible, or in manifest disregard of the parties' agreement. Moreover, the Agency has not established that the award of these bank hours would result in the Union receiving more hours than are permitted under the parties' agreement. In this regard, Article 9, § 2I specifically provides that the maximum number of bank hours granted to the Union "may be adjusted by the. . . parties[.]" See Exceptions, Attachment 3 at 15 (parties' collective bargaining agreement). In these circumstances, we conclude that this portion of the award does not fail to draw its essence from the parties' agreement.
B. 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 by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996). 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's argument that the second remedy exceeds the Arbitrator's authority is based on Article 43, § 4.A.18 of the parties' agreement, which provides that the Arbitrator may not "add to, subtract from, alter, amend, or modify any provision of this Agreement." That is, the Agency's exceeded authority exception relies on its claim that the award fails to draw its essence from the agreement. Consistent with our conclusion that the second remedy does not fail to draw its essence from the parties' agreement, we also find that the Agency has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we deny the Agency's exception. See United States Dep't of Labor, Wash., D.C., 57 FLRA 701, 703 (2002).
The portion of the award requiring the Agency to obtain the Union's agreement prior to denying requests from the grievant for official time is set aside, and the remaining exceptions are denied.
Footnote # 1 for 60 FLRA No. 101 - Authority's Decision
Article 9, § 2P provides, in pertinent part:
Stewards and employees requesting official or bank time . . . will check with their immediate supervisor and . . . will be released provided their work requirements or work schedules do not prohibit release. . . . If there is a disagreement . . . the supervisor may refer the matter to a higher level management official . . . for review and determination. That management official should make a reasonable attempt to contact the appropriate chapter president in an attempt to resolve the matter.
Agency's Exceptions, Attachment 3 at 17.
Footnote # 2 for 60 FLRA No. 101 - Authority's Decision
The Arbitrator also found that: (1) certain denials of the grievant's requests for official time did not violate Article 9, § 2P; (2) Article 2, § 4 of the parties' agreement was either not applicable or not controlling; and (3) the Agency's denials did not constitute an unfair labor practice. See Award at 2-4. As these findings are not excepted to, they will not be addressed.
Footnote # 3 for 60 FLRA No. 101 - Authority's Decision
The Arbitrator did not set forth this precise wording and, instead, described this direction as an adoption, with modification, of the remedy requested by the Union. See Award at 4-5. However, there is no dispute that the wording set forth above is that ordered by the Arbitrator.
Footnote # 4 for 60 FLRA No. 101 - Authority's Decision
We note that the Union does not dispute that the remedy requires agreement between the parties before a request from the grievant for official time may be denied. See Opposition at 4 (Union states that the Arbitrator ordered the Agency to "contact the Union first when there are bank/official time disputes and resolve differences.").
Footnote # 5 for 60 FLRA No. 101 - Authority's Decision
In view of this finding, it is unnecessary to determine whether this portion of the award also is deficient on exceeded authority grounds.