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59 FLRA No. 23
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1546
(Union)
and
UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION DEPOT
SAN JOAQUIN (DDJC)
DEFENSE LOGISTICS AGENCY
TRACY, CALIFORNIA
(Agency)
0-AR-3552
_____
DECISION
September 9, 2003
_____
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 Joe H. Henderson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Union filed one grievance disputing the number of fire prevention personnel employed by the Agency and another grievance contesting the selection actions for battalion chief and lead fire protection inspector. The Arbitrator denied both grievances. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed two grievances on behalf of fire department employees. The first grievance (staffing grievance) claimed that the Agency failed to meet minimum fire department staffing standards mandated by Defense Department Instruction (DoDI) 6055.6, which are reiterated in Defense Logistics Agency Directive (DLAD) 4100.5 for components within DLA such as the Agency. The second grievance (selection grievance) claimed that the Agency reorganized the fire department and filled the battalion chief position and lead fire inspector position noncompetitively, all in violation of civil service regulations and the collective bargaining agreement. The grievances were consolidated and submitted to arbitration.
A. Staffing Grievance
At arbitration, with respect to the staffing grievance, the Union maintained that both DoDI 6055.6 and DLAD 4100.5 require the Agency to employ, at a minimum, seven fire prevention inspectors. In this regard, the Union argued that the parties' collective bargaining agreement requires the Agency to comply with all non-discretionary DoD directives and that DoDI 6055.6 is a non-discretionary DoD directive. The Union also argued that the agreement requires the Agency to comply with DoDI 6055.6 because it was promulgated to implement the provisions of the Occupational Safety and Health Act. In addition, the Union disputed the Agency's contention that the Agency had received an approved waiver of the staffing requirements of DoDI 6055.6. As a remedy, the Union requested the Arbitrator to direct the Agency to take all steps possible to ensure that the Agency has a fire prevention staff of at least seven fire prevention inspectors.
The Agency argued to the Arbitrator that the waiver of the staffing requirements that it received complied with DoDI 6055.6. In addition, the Agency asserted that DoDI 6055.6 was an external limitation on management rights under § 7106(a) that was not enforceable in arbitration as applicable laws. The Agency further asserted that the Union had not alleged or shown a violation of a contract provision negotiated pursuant to § 7106(b) of the Statute. The Agency also argued that if the Arbitrator were to find that DoDI 6055.6 was enforceable, the grievance should still be denied because DoDI 6055.6 provides the Agency with flexibility because it merely provides a baseline and directs the Agency to determine appropriate staffing levels after review of the Instruction.
The Arbitrator denied this grievance. Although he found that the waiver was not valid, he expressly determined as follows:
The Arbitrator has no authority to grant a remedy mandating staffing. It is beyond the scope of this Arbitrator's authority to grant the remedy sought by the Union relating to fire department staffing.
Management Rights, by virtue of 5 U.S.C. 7106, reserves to Management the right to determine staffing. DoDI 6055.5 and 5 U.S.C. 7106 allow the Defense Logistics Agency to vary the number of fire prevention positions. [ v59 p127 ]
Award at 28. In addition, the Arbitrator explained his determination, as follows:
[T]he FLRA has addressed the issue of an arbitrator's authority in issuing awards that affect management rights. The arbitrator can make an arbitration award, which affects management rights only where he finds a violation of applicable law, or a contract provision negotiated pursuant to the exceptions set forth in 7106(b). The Union did not show that exceptions to management rights apply.
Id. (citation omitted).
B. Selection Grievance
With respect to the selection grievance, the Union filed a motion for summary judgment with the Arbitrator because the Agency had never responded to this grievance. The Arbitrator denied the Union's motion for summary judgment. Although the Arbitrator noted with citation to Elkouri & Elkouri, How Arbitration Works (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997) his belief that motions for summary judgment are not used in labor arbitrations, he denied the Union's motion on the basis of Article 36 of the parties' collective bargaining agreement. He found that Article 36, Section 6 provides that the negotiated grievance procedure is the exclusive procedure available to unit employees for resolving grievances and that, under Article 36, Section 10, a failure to meet time requirements permits the immediate escalation of the grievance to the next step. Accordingly, he ruled that there was no contractual basis for a summary judgment motion and that the Union's remedy for the Agency's failure to answer the grievance was to escalate it to the next step. On the merits, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
1. Staffing Grievance
The Union contends that the award as it pertains to the staffing grievance is deficient because the Arbitrator erroneously ruled that he was precluded by § 7106 of the Statute from enforcing DoDI 6055.6 and DLAD 4100.5. The Union claims that these regulations pertain to the numbers, types, and grades of positions within the meaning of § 7106(b)(1) of the Statute and were enforceable in arbitration. In addition, the Union contends that even if DoDI 6055.6 and DLAD 4100.5 involve management rights under § 7106(a)(2) of the Statute, the award is still deficient. The Union claims that to the extent that fire department staffing affects management rights under § 7106(a)(2), DoDI 6055.6 and DLAD 4100.5 were enforceable by the Arbitrator because they constitute applicable laws.
The Union further contends that the award as it pertains to the staffing grievance is deficient to the extent that the Arbitrator relied on provisions of the parties' collective bargaining agreement to find that he was not authorized to award a remedy. The Union argues that the agreement does not operate to preclude the Arbitrator from imposing an external limitation on management rights under § 7106.
2. Selection Grievance
The Union contends that the award as it pertains to the selection grievance is deficient because the Arbitrator's reliance on How Arbitration Works was misplaced, and the Arbitrator's determination that the collective bargaining agreement precludes consideration of a motion for summary judgment is contrary to law and not a plausible interpretation of the contract. The Union maintains that the Arbitrator's reliance on How Arbitration Works for the proposition that a summary judgment motion is not used in labor arbitrations was misplaced because although use of summary judgments in arbitration is not common, they are used. The Union asserts that the award is contrary to law and not a plausible interpretation of the agreement because the provisions of Article 36 do not bar a motion for summary judgment.
B. Agency's Opposition
The Agency contends that the exceptions should be denied. The Agency asserts that the Arbitrator correctly concluded that he could not make an award mandating staffing. The Agency also asserts that as to the selection grievance, the Arbitrator correctly determined that a summary judgment was not appropriate
V. Analysis and Conclusions
A. The award as it pertains to the staffing grievance is not deficient.
The Union contends that the Arbitrator erred by relying on the parties' collective bargaining agreement to find that he was not authorized to award a remedy. We find that the Union has misconstrued the award. Although the Arbitrator cited and quoted the agreement's management rights provisions, the Arbitrator expressly based his determination that he was not authorized to award a remedy on § 7106 of the Statute and DoDI 6055.6, not on the parties' collective bargaining agreement. Consequently, the Union's exception provides no basis for finding the award deficient. Accordingly, we deny the exception.
The Union also contends that DoDI 6055.6 and DLAD 4100.5 were enforceable by the Arbitrator either because they pertain to matters covered by § 7106(b)(1) or because they constitute applicable laws within the [ v59 p128 ] meaning of § 7106(a)(2). The Union's contention provides no basis for finding the award deficient.
Section 2429.5 of the Authority's Regulations provides that the Authority will not consider issues that could have been, but were not, presented to the arbitrator. In its opening statement, the Agency argued to the Arbitrator that the staffing grievance should be denied because management had the right under § 7106 of the Statute to determine staffing. See Transcript at 251-52. In its post-hearing brief, the Agency specifically argued to the Arbitrator that DoDI 6055.6 was not enforceable in arbitration because it constituted an external limitation on management rights under § 7106(a) and that the Arbitrator could not issue an award that affects management rights because the Union had not alleged or shown a violation of an applicable law or contract provision negotiated pursuant to § 7106(b). See Post-hearing Brief at 5-8.
We have reviewed the entire record in this case, and there is no indication that, in response to the Agency's arguments, the Union argued to the Arbitrator that the regulations were enforceable in arbitration consistent with § 7106(a) either as pertaining to matters covered by § 7106(b)(1) or as applicable laws. As the Arbitrator specifically found, the Union "did not show that exceptions to management rights apply." Award at 28.
As these issues presented by the Union's exception should have been, but were not, raised by the Union to the Arbitrator, these issues are barred from consideration by the Authority under § 2429.5. See, e.g., United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA 87, 91 (2002).
Moreover, even if these issues were not barred from consideration, the Authority has consistently required that when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient before the Authority can find that the award is deficient. See, e.g., United States Dep't of the Army, Blue Grass Army Depot, Richmond, Ky., 58 FLRA 314, 314 (2003) (Blue Grass Army Depot); United States Dep't of the Treasury, Internal Revenue Serv., Oxon Hill, Md., 56 FLRA 292, 299 (2000). When an appealing party has not addressed one of the grounds on which an arbitrator has denied the grievance, the Authority will deny the exceptions to other grounds on which the arbitrator denied the grievance because there is no basis on which the Authority can find the award deficient. See Blue Grass Army Depot, 58 FLRA at 315.
In this case, in denying the staffing grievance, the Arbitrator relied on separate and independent grounds for the award. As noted by the Union, he ruled that § 7106 reserves to the Agency the right to determine staffing. However, he also ruled that DoDI 6055.6 allows the Agency to vary the number of fire prevention positions. The Union does not contend that the Arbitrator erred in finding that DoDI 6055.6 allows the Agency to vary the number of fire prevention positions.
Consequently, the Union provides no basis on which we can find the award deficient. Accordingly, we deny the Union's exception. [*]
B. The Arbitrator's denial of a summary judgment with respect to the selection grievance is not deficient.
Although the Arbitrator cited How Arbitration Works, he denied the Union's motion for summary judgment on the basis of Article 36 of the parties' agreement. He interpreted Article 36 of the parties' collective bargaining agreement to bar summary judgment practice because it provided the specific remedy for the Agency's failure to answer and did not provide for motions for summary judgment. As the denial of a summary judgment was not based on How Arbitration Works, the Arbitrator's citation to How Arbitration Works provides no basis for finding the award deficient.
The Union also provides no basis for finding that the Arbitrator's interpretation of Article 36 fails to draw its essence from the agreement or is contrary to law.
We construe the Union's claim that the Arbitrator's interpretation of the agreement was implausible as a claim that the award fails to draw its essence from the agreement. The Authority will find an award deficient because the award fails to draw its essence from the collective bargaining agreement only when it is established that the award: (1) 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; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from 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). The Union has failed to establish that the Arbitrator's interpretation of the agreement disregards the agreement or is implausible, unfounded, or irrational. Similarly, the Union cites no law, and none is apparent, that would override the Arbitrator's interpretation of the agreement as to the specified remedy for untimeliness and compel his consideration of a motion for summary judgment.
Accordingly, the Union's exceptions are denied.
V. Decision
The Union's exceptions are denied.
Footnote * for 59 FLRA No. 23 - Authority's Decision
Member Pope would resolve this exception based solely on the second, alternative ground.