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61 FLRA No. 74
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
PICTURED ROCKS NATIONAL LAKESHORE
OF FEDERAL EMPLOYEES
December 12, 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 Elaine Frost 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, two grievances alleging that the Agency violated the parties' collective bargaining agreement and Agency policy by using volunteers in lieu of paid unit employees at certain park facilities. [n1] For the reasons set forth below, the award is set aside, with the exception of the portion of the award concerning the Arbitrator's fee, which is modified.
II. Background and Arbitrator's Award
As relevant here, during fiscal years (FYs) 2002 and 2003, two seasonal employees, with assistance from volunteers, performed the visitor center duties at two centers. With only one employee at each site, volunteers alone staffed the sites on the employees' two days off per week. The Union filed two grievances alleging that the Agency violated Article 11.2 of the parties' agreement by replacing paid employees with volunteers. [n2] The grievances were consolidated and submitted to arbitration. The parties did not stipulate, and the Arbitrator did not set forth, the issue to be resolved.
The Arbitrator found that the Agency's appropriated funding in recent years had not kept pace with increased expenses. According to the Arbitrator, "[i]t is clear from the record that the financial constraints faced by [the Agency] are real and substantial" and that nothing in the record demonstrated the existence of managerial bad faith such as "hiding" or "re-diverting" funds for FY 2004. Award at 21. Based on these findings, the Arbitrator concluded that the Agency acted in good faith when it reached its staffing decisions during the FY 2004 budgetary process and that there was no support for a contention that the Agency was looking "for loopholes to allow the expanded use of volunteers" at the expense of unit employees. Id. at 22.
The Arbitrator next examined whether the assignment of volunteers to perform visitor center duties when no unit employee was on duty constituted the "displacement" of unit employees, within the meaning of Article 11.2 of the parties' agreement. Award at 22. The Arbitrator found that the term "displace" was not defined in Article 11.2. The Arbitrator then stated that the "law" referenced in Article 11.2 includes Public Law 91-357 (16 U.S.C. § 18g), which created the "Volunteers in Park Program," [n3] and Director's Order #7, an Agency order and reference manual concerning the same program. [n4] The Arbitrator found that 16 U.S.C. § 18g, Director's Order #7 and the NPS-7 Guidelines, [n5] which were issued by the Agency concerning volunteers, [ v61 p405 ] did not provide a definition of the term "displace." [n6] The Arbitrator did, however, find that § 7.6 of an NPS 2001 Policy Book (NPS Policy), which references use of volunteers, was helpful in defining the term "displace." [n7] Relying primarily on that section, the Arbitrator determined that the meaning of "displace" in Article 11.2 is that "volunteers are not to `replace' or `substitute' or `take the place of' paid bargaining unit personnel." Id. at 24. According to the Arbitrator, volunteers are to supplement unit employees and unit employees are to provide oversight over volunteers.
The Arbitrator found that there was no contractual or other requirement that the Agency hire a second, paid, seasonal employee to work at each of the facilities. However, according to the Arbitrator, the Agency violated Article 11.2 of the parties' agreement, 16 U.S.C. § 18g, NPS-7 Guidelines, Director's Order # 7 and the NPS Policy by assigning a volunteer to be in charge for the two days a week that unit employees were off duty because such scheduling "displaces" a unit employee. Id. at 27. In reaching this conclusion, the Arbitrator determined that the volunteer on those two days was a "replacement," a "substitute" and "took the place of" a unit employee. Id. The Arbitrator also determined that because volunteers are to supplement unit employees and unit employees are to provide oversight over volunteers, volunteers "acting on their own" are not complying with the "interrelated roles of volunteer and paid employee[.]" [n8] Id.
The Arbitrator rejected the Union's request that the Agency be ordered to rehire unit employees. In this regard, the Arbitrator stated that there were several ways that the Agency could have ensured that volunteers were not alone operating the facilities in dispute. According to the Arbitrator, the Agency could have arranged coverage for the two days at those facilities "by part-time assignments of existing staff, or by hiring an intermittent seasonal for four days a week, or by closing one or both facilities for two days, or by covering the one to four days in question in some other way." Id.
As a remedy, the Arbitrator ordered the Agency to comply with Article 11.2 of the parties' agreement and directed it to not assign a volunteer to perform visitor center duties at either site when no unit employee is on duty. In addition, the Arbitrator, finding that the Agency was a "two-third loser" and the Union a "one-third loser" because the grievances were granted or denied to varying degrees, ordered the Agency to pay two-thirds of the Arbitrator's fees and the Union to pay one-third. Id. at 28. In doing so, the Arbitrator relied on Article 44, § 5 of the parties' agreement, which states that the arbitration costs "shall be borne by the losing party, except that [when there is a] decision not clearly favoring one [p]arty's position over the other, the arbitrator may specify that all costs should be borne equally by the parties . . . ." Id. at 28 n.55.
III. Positions of the Parties
A. Agency's Exceptions
The Agency "disagrees with the Arbitrator concerning the ambiguity of the term displace" and contends that 16 U.S.C. § 18g clearly states the purposes for which volunteers may be used. Exceptions at 6. In this regard, the Agency, citing Random House Webster's College Dictionary, claims that the term "displace" means to "replace" or "supplant." Id. at 7-8. According to the Agency, 16 U.S.C. § 18g authorizes the Agency to use volunteers "for or in aid of interpretive function." The Agency contends that the use of volunteers on unit employees' days off merely supplements the staff in implementing park interpretive and educational programs and does not constitute the displacement of a unit employee. The Agency asserts that the Arbitrator found that the budget restraints faced by the Agency during FY 2004 were legitimate and that in view of that finding and the Agency's desire to provide services to the public seven days a week, the use of volunteers did not displace unit employees. The Agency also disagrees with the Arbitrator's interpretation of § 7.6 of the NPS Policy. According to the Agency, its use of volunteers permits the paid employees to have two days off and permits the public to enjoy the use of the facilities seven days a week, which fulfills the Agency's "desire to provide optimum services to the public[.]" Id. at 6. [ v61 p406 ]
The Agency also contends that under OPM regulation 5 C.F.R. 610.121(a)(2), the basic forty-hour workweek is scheduled for five days, Monday through Friday, when possible, and the two days outside the basic workweek are consecutive. [n9] The Agency asserts that employees were not displaced when taking days off in accordance with this regulation. The Agency further contends that the award interferes with management's rights to determine the mission, budget, organization, and number of employees and to hire, assign, direct, lay off and retain employees under § 7106(a) of the Statute.
The Agency requests that the Arbitrator's rulings be reversed and that the Union be ordered to pay for all of the Arbitrator's fees.
B. Union's Opposition
The Union argues that the Agency offers no law, legal precedent or reasoned explanation as to why the Arbitrator's award should be set aside. The Union contends that 16 U.S.C. § 18g, Director's Order #7, NPS-7 Guidelines and Article 11.2 of the parties' agreement clearly prohibit the Agency from using volunteers to displace unit employees and that the Arbitrator's interpretation of the law was correct.
The Union also asserts that the Agency's contention regarding its compliance with the OPM regulation was not raised before the Arbitrator. According to the Union, even if it was, nothing in the OPM regulations mandates that employees take two days off. According to the Union, nothing in the regulation precludes an agency from scheduling employees for more than a five-day, forty-hour week.
The Union further asserts that the award does not interfere with the management rights as alleged by the Agency. In this regard, the Union contends that nothing in the award requires the Agency to: (1) close the facilities on two days due to staff funding issues; (2) order additional coverage if staffing is insufficient and the Agency elects to keep the facilities open for seven days; (3) expend any funds to hire any particular employee; or (4) hire or assign anyone to any position. According to the Union, nothing in the award requires the Agency to change its organization or budget, or to take, or refrain from taking, any particular actions with regard to the assignment of work.
Finally, the Union argues that because the Arbitrator's award is supported by law and fact, her apportionment of arbitration costs is proper.
IV. Analysis and Conclusions
A. The award is contrary to law.
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 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.
In this case, the Arbitrator interpreted 16 U.S.C. § 18g, which is incorporated into the parties' agreement pursuant to Article 11.2. See Award at 22. Under this statute, volunteers may not be used to displace any unit employees. According to the Arbitrator, the term "displace" in these circumstances means to "replace" or "substitute" or "take the place of" paid unit personnel. Award at 24. In addition, the Arbitrator relied on Agency guidelines indicating that volunteers are to supplement unit employees and that unit employees are to provide oversight over volunteers. Id. at 25 (citing NPS 2001 Policy Book, § 7.6). Relying on these determinations, the Arbitrator found that the Agency's use of volunteers on unit employees' two days off per week constituted displacement.
The Agency agrees with the Arbitrator regarding the definition of the term "displace," as it cites to Random House Webster's College Dictionary, which, as relevant here, defines "displace" as "to replace; supplant." Exceptions at 7-8. However, the Agency's interpretation of 16 U.S.C. § 18g differs from the Arbitrator's. In particular, the Agency's interpretation of the statute is that use of a volunteer to perform the duties of a position that is not occupied by a unit employee due to lack of funding does not constitute displacement of a unit employee.
The proper framework for the Authority to review an agency's interpretation of its enabling statute is set out in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984) (Chevron), which describes the standard that the Federal Courts use to review agency interpretations of statutes. The Court of Appeals for the District of Columbia Circuit has stated that the FLRA "must grant an agency the same deference to its interpretation of an authorizing statute that [ v61 p407 ] we would." GSA v. FLRA, 86 F.3d 1185, 1187 (D.C. Cir. 1996).
Under Chevron, the decision-maker first must determine whether Congress has spoken directly to the question at issue. "If the intent of Congress is clear, that is the end of the matter." Chevron, 467 U.S. at 842-43. If, however, Congress has not spoken directly to the question and has left a "gap," then an agency's interpretation of a statutory scheme that it is entrusted to administer is accorded considerable weight. In these circumstances, the decision-maker must defer to the Agency's interpretation if it is "based on a permissible construction of the statute." Id. at 843.
Applying the first prong of Chevron, 467 U.S. at 842, Congress' use of the term "displace" does not unambiguously express its intent. In this regard, nothing in the statute explains whether the prohibition extends to the use of volunteers to perform duties of positions not occupied by employees due to lack of funding. In addition, there is no case law regarding the application of this statute and nothing in the legislative history provides assistance in construing this term. See H.R. Rep. No. 98-960 (1984), reprinted in 1984 U.S.C.C.A.N. 4435; S. Rep. No. 91-1013 (1970), reprinted in U.S.C.C.A.N. 3579. Because Congress' intent is not clear, it is not possible to determine with certainty what "displace" means in this regard.
As we cannot determine the validity of the Agency's statutory interpretation under the first prong of Chevron, we apply the second prong to determine whether the Agency's interpretation is based on a "permissible construction of the statute." 467 U.S. at 843. With regard to the Agency's interpretation of 16 U.S.C. § 18g, nothing in the statute precludes the Agency from using volunteers to perform duties of a position that is not filled by a unit employee due to budgetary constraints. In addition, even assuming that the statute intends that employees monitor and provide oversight to volunteers, there is no indication that allowing a volunteer to perform duties in the circumstances presented here impinges on employees' overall ability to monitor or provide oversight. Based on the foregoing, we find that the Agency's position -- that the use of a volunteer to perform the duties of a position that is not occupied by a unit employee due to lack of funding does not constitute displacement of a unit employee -- is a permissible construction of the statute.
Here, the Arbitrator determined that the Agency acted in good faith when it reached its staffing decisions during the FY 2004 budgetary process and that there was no contractual or other requirement that the Agency hire a second, paid, seasonal employee to work at each of the facilities. Award at 22. Thus, as it is undisputed that the Agency had funding sufficient only to hire one seasonal employee to work at each site, its failure to hire a second employee at each site was unrelated to the use of volunteers to staff the sites. That is, the availability of volunteers was not the reason that seasonal employees were not rehired. Thus, the seasonal employees were not displaced by volunteers. Instead, the seasonal employees who were not rehired were displaced by budgetary constraints. Therefore, by using a volunteer to perform the duties of a position that was not occupied by a unit employee due to lack of funding, the Agency, under its interpretation of 16 U.S.C. § 18g, to which we defer as a permissible construction of the statute, did not displace unit employees.
We note that the Arbitrator rejected this rationale, reasoning that it would permit the Agency to avoid its obligation under Article 11.2 of the parties' agreement simply by claiming that there was a lack of funding for hiring employees. See Award at 25. However, the Arbitrator's own examination of the Agency's financial claims and her finding that the Agency reached its 2004 staffing decisions in good faith indicates that simply claiming a lack of funding would be insufficient. In this regard, the fact that the Arbitrator found it necessary to reach, and make a finding regarding, the funding issue implies that the issue is relevant to determine whether displacement occurred.
Based on the foregoing, we find that the Arbitrator's determination that the Agency violated 16 U.S.C. § 18g is contrary to law. [n10]
B. The Arbitrator's fees award must be modified.
The Agency argues that since the award is contrary to law, the Authority should set aside the award and require the Union to pay the Arbitrator's fees. Exceptions at 8. As noted by the Arbitrator, Article 44, § 5 of the parties' agreement requires that arbitration costs "shall be borne by the losing party[.]" Award at 28 n.55. In view of our findings above, the Agency is no longer a "two-third loser" as determined by the Arbitrator in apportioning the arbitration costs. Rather, the Union is the losing party. In these circumstances, the Authority modifies the allocation of fees. See United States Department of the Army, Headquarters, United States Army Training and Doctrine Command, Fort Monroe, Va., 61 FLRA 299, 303 (2005). Therefore, as the award is contrary to law and must be set aside, we modify the allocation of the fees from the Agency to the Union.
The award is set aside, except for the Arbitrator's fees portion of the award, which is modified to allocate such fees to the Union.
Footnote # 1 for 61 FLRA No. 74 - Authority's Decision
Footnote # 2 for 61 FLRA No. 74 - Authority's Decision
Article 11.2 provides, in pertinent part, that "[i]n accordance with law, non-employee workers such as volunteers . . . will not displace employees or positions or their grade controlling duties . . . ." Award at 22.
Footnote # 3 for 61 FLRA No. 74 - Authority's Decision
16 USC §18g provides, in pertinent part, that the Secretary of the Interior is authorized to "recruit, train, and accept . . . the services of . . . volunteers for or in aid of . . . visitor services" and that "[i]n accepting such services of volunteers, the Secretary shall not permit . . . volunteers . . . to displace any employee[.]"
Footnote # 4 for 61 FLRA No. 74 - Authority's Decision
Footnote # 5 for 61 FLRA No. 74 - Authority's Decision
Chapter 1. Volunteers can be utilized in any and all parts of the park-management system. All levels and types of skills can be utilized and almost any type of work can be performed as long as it is work that:
. . . . Does not result in the displacement of any paid employees. Exceptions, Attachment 3, Union. Exhibit 8 at 6.
Footnote # 6 for 61 FLRA No. 74 - Authority's Decision
Although Director's Order #7 replaced the NPS-7 Guidelines, the Arbitrator found that NPS-7 is controlling under Article 11.1 of the parties' agreement, which states that "[t]he Volunteers in the Parks Program . . . will be operated in accordance with NPS- 7." Award at 23 n.42.
Footnote # 7 for 61 FLRA No. 74 - Authority's Decision
In planning and implementing interpretive and educational programs, [the agency] should consider the use of volunteers . . . to supplement park staff and funds. Such services will not be used as a replacement or substitute for a park's basic interpretive operation. To ensure quality control and appropriateness, NPS interpretive staff will be involved with the planning, approval, training, monitoring, and evaluation of all interpretive services provided by others.
. Exceptions, Attachment 3, Union Exhibit 10 at 77.
Footnote # 8 for 61 FLRA No. 74 - Authority's Decision
The Arbitrator also found that the Agency did not violate the parties' agreement and NPS Policy by scheduling a volunteer to perform maintenance work while a paid maintenance employee was on his scheduled furlough. As no exceptions were filed to this determination, it will not be addressed further.
Footnote # 9 for 61 FLRA No. 74 - Authority's Decision
(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--
. . . .
(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive . . . .
Footnote # 10 for 61 FLRA No. 74 - Authority's Decision