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61 FLRA No. 142
DEPARTMENT OF VETERANS AFFAIRS,
WEST PALM BEACH VA MEDICAL CENTER
WEST PALM BEACH, FLORIDA
OF GOVERNMENT EMPLOYEES
August 30, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Mitchell B. Goldberg filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition.
The grievance concerned an Agency requirement that Union representatives report in person to their supervisors before leaving their worksites to use official time for representational activities. The Arbitrator sustained the grievance, finding that the requirement was not enforceable under the parties' collective bargaining agreement (agreement).
For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
In response to a grievance relating to the use of official time by Union representatives, the director of the Agency's facility issued instructions establishing reporting procedures for such use. In essence, the instructions required Union representatives to report in person to their supervisors before leaving their worksites on representational business. The Union grieved the reporting requirement. The Agency denied the grievance and the Union invoked arbitration. Before the Arbitrator, the parties did not stipulate to the issue. The Arbitrator stated, as relevant here, that the grievance concerned whether the Agency's reporting requirement violates: (1) the parties' agreement; [n1] and (2) an established past practice.
The Arbitrator found that the parties' agreement did not "authorize" the reporting requirement. Award at 8. He noted that the only reference to a reporting requirement in the agreement, Article 45, Section 5, concerned travel on Union business away from the Agency's facility and that there was no such requirement for movement within the facility. The Arbitrator also rejected the Union's claim that established past practice demonstrated the absence of a reporting requirement.
Finally, the Arbitrator noted that: (1) the purpose of the reporting requirement was "to keep track of the whereabouts of employees within the confines" of the facility; and (2) the requirement "should apply to all employees for [it] not to be discriminatory in its application" against Union representatives. Id at 10. The Arbitrator found that the reporting requirement was "unreasonable and unnecessary" because management's objective could be accomplished "by using phones, cell phones, pagers or computers." Id. at 11. The Arbitrator also found that there was no evidence of abuse of official time "warranting the targeting of Union representatives." Id. According to the Arbitrator, the reporting requirement was not enforceable because it "unfairly" singles out Union representatives. Id. Consequently, he sustained the grievance. [ v61 p713 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that, by enforcing Article 16, Section 1, [n2] the Arbitrator's award "excessively interferes" with management's rights to assign work and to determine its personnel under § 7106(a)(2)(B) of the Statute. [n3] Exceptions at 3. Specifically, the Agency maintains that the Arbitrator's remedy excessively interferes with management's right to assign work, "which includes the duty to notify the supervisor before leaving the work area[,]" because it "dictates specific instructions [to management] in regard to means of communication for all employees." Id. at 5. The Agency further asserts that, under prong II of United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Arbitrator's remedy "fails to reflect a reconstruction of anything." Exceptions at 5.
The Agency also claims that the award fails to draw its essence from the parties' agreement, noting the Arbitrator's statement that there is no contractual authority for the reporting requirement. Based on that statement, the Agency concludes that the award "obviously" does not turn upon contract interpretation and, thus, cannot draw its essence from the parties' agreement because "it is not based on the [a]greement at all." Exceptions at 7. Finally, the Agency asserts that the Arbitrator exceeded his authority because the award creates a reporting requirement for all employees, not just unit employees.
B. Union's Opposition
The Union contends that the Agency's claim that the award violates management's right to assign work is a bare assertion. The Union argues that nothing in the award would prevent the Agency from assigning work to any employee or from determining when such work would be performed. The Union asserts that the BEP analysis does not apply. Moreover, the Union maintains that, even if BEP applies, the award: (1) found a violation of Article 16 of the parties' agreement; and (2) satisfies the reconstruction required under prong II of BEP because it reinstates the conditions that existed before the Agency instituted its reporting requirement. The Union also maintains that the award draws its essence from the parties' agreement. The Union construes the Agency's exceeded authority exception as claiming that the award provides "relief to persons not encompassed within the grievance." Opposition at 9. The Union maintains that the award does not require the Agency to establish a reporting policy for all employees; rather, it prohibits the Agency from enforcing a requirement that applies only to Union representatives.
IV. Analysis and Conclusions
A. The Award is not Contrary to Law
The Authority reviews questions of law raised by the exceptions de novo. National Treasury Employees Union, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service 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. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
When resolving exceptions alleging that 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). See, e.g., United States Dep't of Homeland Security, United States Customs and Border Protection, 61 FLRA 113, 115 (2005). If it does, then the Authority applies the framework established in BEP. Under prong I of BEP, 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 provision of the agreement that was negotiated pursuant to § 7106(b) of the Statute. 53 FLRA at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or provision in the agreement at issue. Id. at 154.
Applying the foregoing, we find that the Agency's exception fails to demonstrate that the award affects management's right to assign work. The Agency makes no attempt to show--and has not cited precedent showing [ v61 p714 ] --a connection--between the reporting requirement and management's right under § 7106(a)(2)(B). See United States Dep't of Transportation, FAA, Washington, D.C., 55 FLRA 322, 326 (1999) (FAA). Moreover, even if the right to assign work extends to requiring employees to report to supervisors before performing representational activities on official time, the Agency does not demonstrate--and cites no precedent demonstrating--that the right includes the determination of the methods by which the employee must report. Id. The Agency's claim that the Arbitrator's award affects management's right to assign work, therefore, is a bare assertion and, under Authority precedent, will be denied. See VA Regional Office, 58 FLRA at 552 n.3; United States Dep't of Veterans Affairs, Medical Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000) (Coatesville); FAA, 55 FLRA at 326.
Even assuming that the award affects management's right to assign work, as the Agency claims, the Agency has not shown that the award is deficient under either prong I or prong II of BEP. In this regard, the parties agree that the Arbitrator enforced the prohibition on discrimination in Article 16, Section 1 of the parties' agreement, see Exceptions at 3, Opposition at 10. The Authority has held that contract provisions substantively identical to Article 16, Section 1 constitute appropriate arrangements under § 7106(b)(3). See Coatesville, 56 FLRA at 970 ("prophylactic provision designed to protect unit employees from discriminatory or retaliatory exercise of a management right based on union activity" found enforceable under § 7106(b)(3)). The Agency has provided no basis for the Authority to reach a contrary conclusion. Consequently, we find that the Arbitrator's award satisfies prong I. As to prong II, the award merely precludes management from enforcing the reporting requirement. Consequently, we find that the award constitutes a proper reconstruction and satisfies prong II of BEP. See Coatesville, 56 FLRA at 971.
Accordingly, we deny the Agency's exception.
B. The Award Does not Fail to Draw its Essence From the Agreement
To establish that an award fails to draw its essence from the agreement, the appealing party must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact and so unconnected with the wording and purposes of the collective bargaining agreement so 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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Arbitrator found that Article 45 of the parties' agreement did not authorize the disputed reporting requirement and that the requirement discriminated against Union representatives in violation of Article 16, Section 1. The Agency provides no basis for finding that the Arbitrator's interpretation of Articles 16 and 45 is not rationally related to the terms of those provisions, does not represent a plausible reading of those provisions, or in any way disregards the terms of those provisions. Consequently, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement.
Accordingly, we deny the Agency's exception.
C. 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 those not encompassed within the grievance. See, e.g., United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Depot, Red River, Texarkana, Tex., 56 FLRA 62, 67 (2000). Specifically, an arbitrator may exceed his or her authority by failing to confine his or her award to unit employees. See United States Dep't of Defense, Defense Depot Memphis, Memphis, Tenn., 43 FLRA 228, 235 (1991).
Review of the award in this case demonstrates that it concerns only unit employees. In this regard, the grievance alleged a violation of the parties' agreement that applies only to unit employees. In addition, the effect of the award is limited to Union representatives conducting representational activities on official time under the agreement. Thus, the award has no effect on nonunit employees. In this regard, the Arbitrator's statements to which the Agency objects do not extend any remedy to employees not covered by the grievance. The Agency's construction of the statements misunderstands the nature of the award.
Accordingly, we deny the Agency's exceeded authority exception.
The Agency's exceptions are denied.
Footnote # 1 for 61 FLRA No. 142 - Authority's Decision
In an atmosphere of mutual respect, all employees shall be treated fairly and equitably and without discrimination in regard to . . .Union activity. Award at 4.
The Arbitrator also cited as relevant Article 45, Section 5, which provides, in relevant part:
Once official time is authorized, Union representatives will be permitted to leave the worksite to discharge their functions . . . after reporting to their respective supervisors. Where travel to another location . . . is necessary . . . and the transportation is otherwise being provided to the location for official business, the Union will be allowed access to the transportation on a space available basis[.] Award at 5-6.
Footnote # 2 for 61 FLRA No. 142 - Authority's Decision
The Agency states that the Arbitrator found that the reporting requirement "unfairly discriminates against Union representatives under Article 16, Section 1[.]" Exceptions at 3. Although the Agency also states that the provision was "negotiated pursuant to § 7106(b), in light of the Agency's argument that the award excessively interferes with management's right to assign work, we do not construe the Agency's statement as a concession that Article 16, Section 1 is enforceable under §7106(b).
Footnote # 3 for 61 FLRA No. 142 - Authority's Decision
As the Agency makes no further argument with respect to management's right to determine the personnel by which agency operations will be conducted, we find the argument is a bare assertion that provides no basis for finding the award deficient. See United States Dep't of Veterans Affairs, VA Regional Office, St. Petersburg, Fla, 58 FLRA 549, 552 n.3 (2003) (Member Pope concurring) (VA Regional Office).