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60 FLRA No. 172
DEPARTMENT OF VETERANS AFFAIRS
ALASKA VA HEALTHCARE SYSTEM
OF GOVERNMENT EMPLOYEES
May 24, 2005
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 John R. Swanson 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 did not file an opposition to the Agency's exceptions.
The Arbitrator concluded that the Agency violated the parties' master and supplemental collective bargaining agreements by having two management officials attend a Step 1 grievance meeting and by having a bargaining unit employee prepare the Agency's grievance response to the meeting.
For the reasons that follow, we set aside the award.
II. Background and Arbitrator's Award
At the grievant's Step 1 grievance meeting, two management officials -- the grievant's supervisor and another manager -- were present. The Union filed a grievance alleging that the attendance of a management official in addition to the grievant's supervisor at the Step 1 grievance meeting violated Article 42, § 7, Step 1 of the parties' master agreement and Article 2, § 2 of the parties' supplemental agreement. [n1] The grievance was unresolved and submitted to arbitration. The Arbitrator stated the issues as follows:
[W]hether . . . the Agency violated the [parties'] [a]greements as well as established "past practice" between the [Agency] and the [Union] when the Agency assigned more than one management official other than the employee's immediate supervisor or designee at a Step-1 grievance meeting? In addition, was the Agency in violation of the agreements when the Agency had their response to the Step-1 meeting made by another bargaining unit employee?
Award at 2.
The Arbitrator concluded that the attendance by a management official in addition to the grievant's supervisor at the Step 1 grievance meeting violated the parties' agreements. In reaching this conclusion, the Arbitrator relied on the parties' "established, understood and agreed-upon" past practice as to the interpretation and application of Step 1 of the parties' grievance procedure, which, the Arbitrator found, is that the employee's immediate supervisor or designee is the only management official permitted to be present at a Step 1 grievance meeting. Id. at 13. According to the Arbitrator, the intervention of another management official at Step 1 of the grievance process would be "counter-productive" to settling problems at the lowest level possible. Id. at 11. The Arbitrator also stated that the purpose of § 7106 of the Statute is to provide agencies with the flexibility to manage and that nothing in Article 42, § 7, Step 1 is inconsistent with this purpose. In this regard, the Arbitrator stated that the Agency retains the right to assign a designee of the supervisor to attend the Step 1 meeting.
The Arbitrator ordered the Agency to cease and desist from assigning more than one management official to attend Step 1 grievance meetings. The Arbitrator [ v60 p969 ] also stated, without explanation, that "[i]t is inappropriate for other than management representatives to determine the conclusion or respond to grievances of represented employees" and that "[a]ny attempt to use represented employees in this capacity should cease." Id. at 15.
III. Agency's Exceptions
The Agency contends that, in finding it inappropriate for the Agency to have a bargaining unit employee respond to the Step 1 grievance, the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration. In this regard, the Agency asserts that the grievance raised the sole issue of whether the Agency violated the parties' agreement by having an additional management official at the Step 1 grievance meeting. See Exceptions at 2-3. The Agency claims that the parties stipulated prior to the hearing that the issue raised in the grievance was the only issue before the Arbitrator and advised the Arbitrator of their stipulation. In support of this claim, the Agency attached to its exceptions an affidavit from the Agency representative who presented the case to the Arbitrator. See id., Tab 5.
The Agency also contends that the award limiting attendance at Step 1 grievance meetings to one management official is contrary to management's rights to assign work and to determine the personnel by which agency operations shall be conducted under § 7106(a)(2)(B) of the Statue. See id. at 3 (citing United States Dep't of Health and Human Servs., Health Care Financing Admin., 57 FLRA 462 (2001) (HHS)). According to the Agency, the Authority in HHS found an award concerning a contract provision similar to Article 42, § 7, Step 1 to be contrary to management's right to assign work because it restricted the agency's ability to assign additional management officials to represent it in grievance meetings.
IV. Preliminary Matter
The Agency relies on an affidavit of the Agency representative to support its contention that the Arbitrator exceeded his authority. See Exceptions, Tab 5. In the affidavit, the Agency representative states that he and the Union representative stipulated prior to the arbitration hearing that the issue of whether the Agency violated the parties' agreements by having a bargaining unit employee respond to the Step 1 grievance was not submitted to arbitration and that the Arbitrator was informed of this stipulation prior to the hearing. See id., Tab 5 at 1.
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues or evidence that could have been, but were "not presented in the proceedings before the . . . arbitrator." 5 C.F.R. § 2429.5. However, the Authority has found that where an issue arises from the issuance of the award and could not have been presented to the arbitrator, the issue, and an affidavit supporting the issue, are not precluded by § 2429.5. See NAGE, Local R3-77, 59 FLRA 937, 940 (2004) (Chairman Cabaniss dissenting as to other matters).
Here, we conclude that the Agency's exceeded authority argument is based on the Arbitrator's award. In this regard, the Agency could not have made this argument prior to the issuance of the award. Thus, as the Agency's exceeded authority argument arises from the award itself, we will consider, consistent with NAGE, Local R3-77, 59 FLRA at 940, the Agency's affidavit supporting this argument.
V. Analysis and Conclusions
A. The Arbitrator exceeded his authority.
Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on their authority, or awarding relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). In particular, an arbitrator exceeds his or her authority when the arbitrator decides an issue not included in issues stipulated by the parties. See Bremerton Metal Trades Council, 47 FLRA 406, 408 (1993) (Bremerton Metal Trades Council); Veterans Admin. Med. Ctr., Houston, Tex., 36 FLRA 122, 127-28 (1990) (VAMC Houston).
Here, the Agency asserts, both in the exceptions and affidavit, that the parties stipulated prior to the hearing that the disputed issue whether the Agency violated the parties' agreements by having a bargaining unit employee respond to the Step 1 grievance was not before the Arbitrator and that the Arbitrator was informed of this stipulation. The Union does not dispute that the parties stipulated to the issue. In addition, the Arbitrator's recitation of the parties' positions does not include any references to the disputed issue. See Award at 2-4. Under these circumstances, we find that the Agency has established that the parties stipulated to the issue.
As noted above, an arbitrator exceeds his or her authority where the arbitrator ignores a stipulation and resolves an issue not included in issues stipulated by the parties. See Bremerton Metal Trades Council, 47 FLRA at 408; VAMC, Houston, 36 FLRA at 127-28. Accordingly, as the Arbitrator resolved an issue that the [ v60 p970 ] parties stipulated was not before him, we find that the Arbitrator exceeded his authority, and we set aside this portion of the award.
B. The award is contrary to management's right to assign work.
When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Alabama Nat'l Guard, Northport, Alabama, 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
When resolving an exception that alleges an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority will apply the framework established in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See id. Under prong I of the BEP framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. at 153. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id. at 154.
The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., AFGE, Local 3529, 56 FLRA 1049, 1050 (2001). In particular, the Authority has held that a contract provision limiting the number of agency representatives permitted to represent the agency at grievance meetings affects management's right to assign work. See HHS, 57 FLRA at 463 (Authority found arbitrator's award interpreting contract provision as restricting the agency's ability to assign additional representatives to attend Step 1 grievance meeting affected management's right to assign work).
Here, the Arbitrator found that Article 42, § 7, Step 1 of the parties' master agreement precludes the Agency from assigning management officials in addition to the grievant's immediate supervisor or designee to attend Step 1 grievance meetings. See Award at 13-15. As the award restricts the Agency's ability to assign more than one management official to perform this task, we conclude, consistent with HHS, 57 FLRA at 463, that the award affects management's right to assign work.
With regard to prong I of BEP, there is no contention that Article 42, § 7, Step 1 constitutes a provision negotiated pursuant to § 7106(b) of the Statute. [n2] Moreover, the Authority has not heretofore found a provision similar to Article 42, § 7, Step 1, as interpreted by the Arbitrator, to constitute either a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3).
As the award affects management's right to assign work under § 7106(a)(2)(B) of the Statute, and because there is no basis in the record for finding that Article 42, § 7, Step 1, as interpreted by the Arbitrator, was negotiated under § 7106(b), the award does not satisfy prong I of BEP. See SSA, S.E. Program Serv. Ctr., Birmingham, Ala., 55 FLRA 320, 322 (1999). Accordingly, we find that it is unnecessary to address prong II of BEP, and set aside this portion of the award. [n3]
The award is set aside.
Footnote # 1 for 60 FLRA No. 172 - Authority's Decision
An employee and/or the Union shall present the grievance to the immediate or acting supervisor . . . in writing . . . . The immediate or acting supervisor will make every effort to resolve the grievance immediately but must meet with the employee/ representative and provide a written answer within fourteen (14) calendar days of receipt of the grievance.
It is understood that any . . . practices and understandings which have been reduced in writing and/or verbally were mutually acceptable to the parties . . . shall not be changed unless mutually agreed to by the parties.
Footnote # 2 for 60 FLRA No. 172 - Authority's Decision
The Union's contention before the Arbitrator that Article 42, § 7, Step 1 was negotiated pursuant to § 7106(b), see Award at 3, does not provide a sufficient basis for finding that this claim was raised here. See United States Dep't of the Army Corps of Engineers, Northwestern Div. and Portland Dist., 60 FLRA 595, 597 n.3 (2005).
Footnote # 3 for 60 FLRA No. 172 - Authority's Decision
In view of this, it is unnecessary to address whether this portion of the award is also contrary to management's right to determine the personnel by which agency operations shall be conducted under § 7106(a)(2)(B) of the Statute.