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62 FLRA No. 60
GENERAL SERVICES ADMINISTRATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236, AFL-CIO
January 29, 2008
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Randall M. Kelly 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. [n1]
The Arbitrator held that the Agency violated the parties' agreement when it terminated employees' rotational assignments and failed to negotiate with the Union pursuant to the Statute. The Arbitrator ordered the Agency to cease and desist from unilaterally terminating rotational assignments without bargaining. He also ordered that the Agency, upon the request of the Union, rescind its termination of these assignments, notify the Union of any intention to implement changes in the use of such assignments, and bargain with the Union, to the extent consistent with law and regulation, concerning any decision to change the use of such assignments.
For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The employees at issue work for the Agency in San Juan, Puerto Rico. Since at least 1978, these employees have been able to send their children to the Antilles Consolidated School System (the school), which is run by the Department of Defense and is "available to the families of non-military government personnel who [are] on a rotation in Puerto Rico." Award at 4. In 1985, after the school questioned whether Agency employees permanently assigned to Puerto Rico were entitled to access to the school, the Agency formally adopted a policy stating that all vacancies in Puerto Rico for professional and administrative positions would be filled as "rotational assignments" on the request of the employee. Award at 2. The effect of the policy was to allow Agency employees to continue to enroll their children in the school.
In 2005, the Agency announced to its staff in Puerto Rico that it was terminating all rotational assignments in Puerto Rico, effective immediately. The effect of this change was that six employees whose children were enrolled in the school and two employees who were in the process of enrolling their children in the school were no longer entitled to do so. The Union filed a grievance alleging that the Agency had violated Article 2, § 4 and Article 8, § 4 of the parties' agreement by terminating the practice of rotational assignments without bargaining with the Union. [n2] The grievance was [ v62 p342 ] unresolved and was referred to arbitration, where the parties stipulated the issue to be as follows:
Did the Agency violate Article 2, Section 4 and/or Article 8, Section 4 of the National Agreement when it terminated rotational assignments in Puerto Rico pursuant to 5 U.S.C. [§] 7106, as set forth in Article 3 of the National Agreement? If so, what shall be the remedy?
Award at 1.
The Arbitrator first determined that the Agency's decision to discontinue utilizing rotational assignments concerned its right to assign work pursuant to § 7106(a)(2)(B) of the Statute. The Arbitrator found that "as a management change during the term of a contract" the matter of rotational assignments is "subject to bargaining over the procedures to implement the change and the impact on adversely affected employees." Id. at 12. The Arbitrator also found that the "privilege of sending their children to" the school constituted conditions of employment under § 7103(a)(14) of the Statute. Id. at 11.
The Arbitrator next found that the Agency was obligated to bargain over the procedures to implement its change in rotational assignments and the impact of the change on adversely affected employees, as set out in §§ 7106(b)(2) and (3) of the Statute. The Arbitrator rejected the Agency's claim that it had the discretion to make this change without bargaining, finding that the rotational assignment policy was a "past practice" subject to bargaining, when changed, under both the Statute and the parties' agreement. Id. at 12. As such, he determined that that the agreement required regional negotiations and that the Agency's claim that it had no choice other than to eliminate the rotational assignments "d[id] not absolve the Agency of its duty to bargain the procedures or appropriate arrangements for affected employees." Id. at 13. As a remedy, the Arbitrator "adopted" the order issued by the Authority in United States Dep't of the Treasury, Customs Serv., Region IV, Miami Dist., Miami, Fla., 38 FLRA 838 (1990), including an order that the Agency cease and desist from making changes to its rotational assignment policy without bargaining, restore the prior policy, and bargain concerning any changes to the policy in the future.
III. Agency Exceptions
The Agency argues that the award violates its management rights under § 7106(a) of the Statute. According to the Agency, its obligation to bargain over the impact and implementation of its management rights does not extend to proposals that interfere with those rights. Exceptions at 15. The Agency claims that the award is "confusing," and that it is not clear whether the Arbitrator found that the Agency had an obligation to bargain over the substance or the impact and implementation of the matter at issue. Id. at 18. The Agency argues that, to the extent the award finds a requirement of substantive bargaining, it is contrary to § 7106 of the Statute.
The Agency also argues that it had no duty to bargain over the impact and implementation of its decision because "the termination of their rotational assignments had no effect, not even a de minimis [e]ffect" on employees' working conditions. Id. at 20-21. According to the Agency, none of the employees had ever rotated out of Puerto Rico in the past. Further, the Agency asserts that, to the extent that the Union is attempting to negotiate over the ability of the employees to send their children to the school, this is "outside the scope of the decision to terminate rotational assignments." Id. at 20. In this regard, the Agency claims that finding a change in conditions of employment from the denial of access to the school "improperly link[s]" the rotational assignment decision and the school access decision. Id at 21. Further, the Agency asserts that the Union's proposals do not deal with the impact and implementation of the Agency's decision to terminate rotational assignments, but with the decision itself.
Finally, the Agency argues that the award fails to draw its essence from the parties' agreement. In this regard, the Agency claims that the agreement incorporates various statutory rights, including management rights under § 7106 of the Statute, and that the award violates the agreement for the same reasons that it violates these statutory provisions.
IV. Analysis and Conclusions
A. The Agency has not established that the award is contrary to law.
When an exception involves an 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 Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
[ v62 p343 ] The Agency argues that the award violates its management rights under § 7106 of the Statute. When an exception alleges that an award violates these rights, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Ass'n, 55 FLRA 179, 184 (1999) (SBA). If it does, then the Authority applies the framework established in United States Department of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See SBA, 55 FLRA at 184.
The Arbitrator here found that, even though the subject of rotational assignments concerned the assignment of work under § 7106(a)(2)(B) of the Statute, the Agency was nevertheless obligated to bargain over procedures and appropriate arrangements pursuant to § 7106(b)(2) and (3) of the Statute. The Agency objects that bargaining under § 7106(b) is "permissive" and that the award appears to require substantive bargaining, in violation of § 7106(a) of the Statute. Exceptions at 15, 18. However, where an agency proposes to change the conditions of employment of unit employees pursuant to a management right under § 7106(a) or § 7106(b)(1), it is obligated to bargain over procedures, under § 7106(b)(2), and appropriate arrangements, under § 7106(b)(3), that address the particular change proposed. See United States Dep't of the Treasury, Customs Service, Washington, D.C., 59 FLRA 703, 709 (2004); Dep't of Health and Human Services, Social Security Admin., 44 FLRA 870, 881 (1992). As such, bargaining under § 7106(b)(2) and (3) does not violate the Agency's § 7106(a) rights and, therefore, the award is not deficient on this ground. Further, nothing in the award indicates that the Arbitrator ordered the Agency to bargain over substantive matters that are not negotiable. See Award at 12, 14 (indicating that the Agency is required to bargain over § 7106(b)(2) and (3) matters). As the award does not require bargaining that violates the Agency's rights under § 7106(a) of the Statute, we reject the Agency's argument that the award violates its management rights.
The Agency also argues that it had no duty to bargain over its decision to terminate rotational schedules because this decision had no effect on employee's conditions of employment, "not even a de minimis [e]ffect." Exceptions at 20-21. An agency is required to bargain over the impact and implementation of a change in unit employees' conditions of employment, provided the change has more than a de minimis effect. United States Dep't of the Treasury, Internal Revenue Serv., 56 FLRA 906, 913 (2000) (IRS). In assessing whether the effect of a decision on conditions of employment is more than de minimis, the Authority "looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment." Id.; United Stated Dep't of the Air Force, Air Force Materiel Command, 54 FLRA 914, 919 (1998).
The Agency bases its argument that its decision had no effect on employees' conditions of employment on its undisputed claim that no employee had been required to rotate out of the Puerto Rico office. Because of this, according to the Agency, terminating rotational assignments did not change the employees' chance of rotating to another office. However, the Agency's argument ignores the Authority's standard for assessing change in conditions of employment, which looks not only at the change, itself, but also the "effects" of the change. IRS, 56 FLRA at 913. In this regard, the record shows that the employees' loss of the right to send their children to the school directly resulted from the decision to terminate rotational assignments and, as the award demonstrates, this was the only effect of that decision that was of concern to either the Agency or the employees. [n3] Thus, the employees' loss of the opportunity to send their children to the school was not "outside the scope" of the decision to end rotational assignments, as the Agency argues. Exceptions at 20. Rather, lost school access was an effect of the change in rotational assignments and the Arbitrator properly considered this loss in determining that negotiation was required. In this circumstance, whether the employees termed "rotational" had ever actually rotated in the past does not affect the conclusion that the change had more than a de minimis effect on employees' conditions of employment.
Finally, the Agency claims that the Union's "proposals and remedies . . . do not deal with . . . impact and implementation of the Agency's decision to terminate rotational assignments, but rather directly interfere with the Agency's decision to exercise its right." Exceptions [ v62 p344 ] at 19. However, the Agency's objection refers to matters brought up in the Union's grievance, after the Agency refused to engage in any bargaining with the Union. See Joint Exhibit 2. The Authority has held that, where an agency refuses to bargain, a union is not required to establish that it has made negotiable proposals in order to prove that it is entitled to bargain. United States Dep't of Justice, Immigration and Naturalization Serv., 55 FLRA 892, 900-901 (1999). As the Agency never engaged in any bargaining with the Union, it cannot avoid its obligation to bargain by objecting to "proposals and remedies" that the Union sought only after the Agency unlawfully refused to bargain.
For the above reasons, we deny the Agency's contrary to law exceptions.
B. The Agency has not established that the award fails to draws its essence from the agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
The Agency argues that the award does not draw its essence from the agreement because the agreement incorporates statutory standards and the award violates these standards. As we have above rejected the Agency's claim that the award is contrary to these same statutory standards, we deny the Agency's essence exception for the same reasons.
The Agency's exceptions are denied.
Footnote # 1 for 62 FLRA No. 60 - Authority's Decision
The Authority ordered the Union to show cause why its opposition should not be considered untimely because it appeared that the opposition was filed beyond the time limit provided in the regulations. See 5 C.F.R. §§ 2425.1, 2429.22. The Union's response to the order states that the opposition was served within the appropriate time limit from the day that the Union actually received the Agency's filing. As the regulations provide for the filing of an opposition within 30 days of service, rather than receipt, and the Union provides no showing of "extraordinary circumstances" justifying a waiver of the time limit, see 5 C.F.R. § 2429.23(b), the opposition will not be considered. See Bremerton Metal Trades Council, 59 FLRA 583, 583-84 (2004). It is also not necessary for the Authority to consider the supplemental filing made by the Agency in reply to the Union's response to the show cause order.
Footnote # 2 for 62 FLRA No. 60 - Authority's Decision
B. Past Practices 1. As of the effective date of the Agreement, all past practices that conflict with laws, rule or Government- wide regulations are null and void. 2. All past practices that conflict with the terms and conditions of this National Agreement or the terms and conditions of a National Memorandum of Understanding are null and void. 3. All other past practices continue until changed through negotiations.
Article 8, § 4 A. of the parties' agreement provides, in pertinent part:
The Union will be given written notice at the regional level of proposed changes in personnel policies, practices and working conditions arising out of, initiated by or under the control of a GSA Region which are regional and/or local in scope and which are not national in scope. Negotiations resulting from such changes will be conducted by the Parties' regional representatives in accordance with the Federal Service Labor-Management Relations Statute.
Award at 2-3.
Footnote # 3 for 62 FLRA No. 60 - Authority's Decision
In this regard, the Arbitrator found that the Agency made the decision to terminate the employees' rotational assignments when an employee in Puerto Rico "wanted to send her three children" to the school and forwarded an "Agreement of Reassignment" to the regional office in Boston for review. Award at 6. While the issue was under consideration in the regional office, 22 employees of the Puerto Rico office sent the regional office a petition listing reasons why the availability of rotational certifications and access to the school for employees was important to them. Id. Once made, the decision to terminate rotational status led to the employees being forced to withdraw their children from the school. Id. at 7-8. The Agency does not dispute these facts found by the Arbitrator. Further, the Agency makes no argument that the employees' opportunity to enroll in the school is not, itself, a condition of employment.