[ v57 p701 ]
57 FLRA No. 146
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12
(Union)
0-AR-3423
_____
DECISION
February 28, 2002
_____
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 M. David Vaughn 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 concluded that the Agency violated the parties' collective bargaining agreement by implementing a new government-wide qualification standard without completing bargaining over a proposal submitted by the Union. [n1]
For the reasons that follow, we find that the Agency has failed to demonstrate that the award is deficient. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
In June 1997, the Office of Personnel Management issued a new qualification standard for non-Department of Defense GS-1102 Contract Specialist positions. The new standard established new educational requirements for that position. The qualification standard provided, among other things, that the new educational requirements for GS-13 positions and above could be waived in certain circumstances.
On August 28, 1997, the Agency notified the Union about the new qualification standard. Subsequently, the Union submitted eight bargaining proposals addressing the new qualification standard. Among those proposals, Proposal 6 specifically addressed the Agency's issuance of waivers to the new qualification standard. The proposal stated:
Waivers to be granted to [the] maximum extent permissible by law.
Award at 4.
The Agency responded to the proposals. As to Proposal 6, the Agency stated that it had already provided the Union with the Agency's draft policy on procedures for waivers. See id. As to the other seven proposals, the Agency stated that six were nonnegotiable and the other concerned a subject that was covered by the collective bargaining agreement. During the next regularly scheduled mid-term bargaining session, the Union resubmitted its proposals, modifying one and dropping another. The Agency responded by stating that "it had no further duty to bargain [over the proposals] and had proceeded to implement" the new standard. Id.
The Union filed a grievance, alleging that the Agency implemented the new qualification standard "without adhering to the negotiated impasse procedures." Id. In support, the Union cited Articles 34 and 36 of the collective bargaining agreement. [n2] When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator determined that the Agency violated Article 36 by failing to complete bargaining with respect to Proposal 6. The Arbitrator found that the Agency had asserted "no clear reason for its decision not to bargain with the Union" over Proposal 6 and, further, pointed out that the Agency's only statement on this proposal was that it had provided the Union with its draft policy delineating its procedures regarding waivers. Award at 8. The Arbitrator determined that this statement by the Agency did not constitute a declaration of nonnegotiability or an assertion that the subject matter of the proposal was covered by the collective bargaining agreement.
The Arbitrator further found that, after the Union resubmitted its proposals, the Agency did not specifically [ v57 p702 ] address Proposal 6 in its subsequent memorandum to the Union. According to the Arbitrator, the Agency stated:
The [Agency] has no further duty to bargain anew on this subject matter. The matter was on the . . . mid-term bargaining agenda wherein the parties engaged in impact and implementation negotiations. Subsequently, the [Agency] provided [the Union] with its final proposal. . . . The [Agency] notified [the Union] of its intent to implement and shortly thereafter proceeded to [do] so after receiving no response from [the Union].
Id. at 8. The Arbitrator added that nothing in the record indicated that Proposal 6 was ever withdrawn.
The Arbitrator summarized his findings as to the Agency's duty to bargain over Proposal 6 as follows:
If the [Agency] believed it had no further duty to negotiate over the Union's proposal, either because it was non- negotiable or because it was otherwise outside the duty to bargain, it had an obligation to assert a legal basis for this conclusion. Alternatively, it could have concluded that negotiations were at an impasse and invoked the procedures of 5 USC § 7119, as required by Article 36, Section 5, of the Agreement. The evidence is that it did neither.
Id.
Based on the foregoing, the Arbitrator concluded that the Agency violated Article 36 by failing to complete bargaining with the Union over Proposal 6. As a remedy, the Arbitrator directed the Agency "to resume negotiations with the Union with respect to the issue of waivers, in accordance with the procedures of Article 36." Id. at 9.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is contrary to the Statute and that the Arbitrator exceeded his authority because the award is inconsistent with Authority precedent. Specifically, the Agency asserts that the Arbitrator failed to apply, or misapplied, Authority precedent in placing the burden on the Agency, not the Union, to seek assistance from the Federal Service Impasses Panel (the Panel), after management twice had provided the Union with written notice of its intent to implement the new qualification standard.
According to the Agency, after an agency provides a union with proper notice of its intent to implement a change, the burden is on the union to respond to this notice. The Agency asserts that, in the absence of a response by the union to such notice, an agency may lawfully implement the change. The Agency cites United States Customs Service, 16 FLRA 198 (1984) (Customs Service), and asserts that, consistent with Customs Service, it implemented the new qualification standard only after the Union did not respond to the Agency's proper notice of its intent to implement this change.
The Agency contends that "the Union could have and should have timely contacted the Federal Mediation and Conciliation Service (FMCS) pursuant to § 7119 . . . and if resolution was not reached, could have and should have timely requested the services of [the Panel]." Exceptions at 6.
B. Union's Opposition
The Union asserts that the award is based on the Arbitrator's "rational" interpretation of Article 36 as imposing an obligation on the Agency to initiate impasse procedures based on the circumstances surrounding negotiations over Proposal 6. Opposition at 10. The Union further argues that, in contrast to Customs Service, the Union was not on notice that impasse procedures "should be considered" because the Agency provided no basis for its decision to implement its policy on waiver. Id. at 11.
IV. Analysis and Conclusions
A. The Award Is Not Inconsistent with Law and Does Not Fail to Draw Its Essence from the Agreement
Where a party's exceptions challenge an award's consistency with law, the Authority reviews the exceptions 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review 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 [ v57 p703 ] 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's exception that the award is inconsistent with Authority case law may be viewed as either a claim that the award is contrary to law or that it fails to draw its essence from the collective bargaining agreement. In either event, the exception must be denied. [n3]
The Agency has not demonstrated that the award is contrary to law. As the basis for his finding of a violation, the Arbitrator determined that the Agency should have taken one of two actions if it believed it had no further duty to negotiate over the Union's proposal. In the Arbitrator's view, the Agency was required either to assert that the proposal was nonnegotiable or otherwise outside the duty to bargain or, alternatively, the Agency was required to invoke the impasse procedure of Article 36, Section 5, which includes requesting Panel assistance under § 7119 of the Statute. The Agency disputes only the second of the two actions on the ground that, once it provided the Union with written notice of its intent to implement the new qualification standard, the obligation to invoke the services of the Panel rested solely with the Union.
Under the express terms of § 7119, "either party" may request the assistance of the Panel in resolving a negotiation impasse. In this case, the parties contractually agreed to a procedure that includes recourse to the Panel. As interpreted by the Arbitrator, this contractual provision required the Agency to utilize the impasse procedure of § 7119, or some other action that is not here in dispute, in attempting to resolve outstanding issues with respect to Proposal 6. There is nothing in the contract provision, as interpreted by the Arbitrator, that is contrary to law.
Furthermore, the Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement. The Arbitrator's interpretation of the agreement is consistent with its terms. Consequently, the Agency has failed to establish that the Arbitrator's interpretation of the agreement is irrational, unfounded, or implausible, or that it otherwise disregards the parties' agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
In addition, we find that the Agency's reliance on Customs Service is misplaced. In that case, unlike the situation presented here, there is no evidence that the agency had contractually agreed to be bound to the use of an impasse procedure. Accordingly, the Agency's exception is denied.
B. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996).
The Agency's argument that the Arbitrator exceeded his authority is based on the same underlying premise as its claim that the award is inconsistent with Authority case law. For the reasons explained above, the award is not inconsistent with law nor fails to draw its essence from the collective bargaining agreement. This exception provides no basis on which to find that the Arbitrator exceeded his authority under the test set forth above. Accordingly, the Agency's exception is denied. [ v57 p704 ]
V. Decision
The Agency's exceptions are denied.
Appendix
Article 34 Governing Laws and Regulations
Section 4. Bargaining Over [N]ew or Changed Rules or Regulations
Bargaining pursuant to Section 3 will occur in accordance with Article 36 . . . .
Article 36 Mid-Term Bargaining
. . . .
Section 2. Departmental Mid-Term Negotiations
a. With the exception of negotiations regarding space or organizational changes affecting a single Agency, all mid-term negotiations shall take place at the Departmental Committee. This Committee shall meet quarterly for the purpose of conducting negotiations. Additional sessions may be held upon mutual agreement of the parties.
. . . .
Section 5. Mid-Term Bargaining Impasses
Impasses in negotiations on the part of the Department or Agency Mid-Term Bargaining Committee will be resolved by recourse to the provisions of Section 7119 of the Federal Service Labor Management-Relations Statute.
Section 6. Interest-Based Bargaining
The parties agree to use the techniques of interest-based bargaining where appropriate.
Footnote # 1 for 57 FLRA No. 146
The Arbitrator also determined that the Agency had no obligation to bargain over several other proposals submitted by the Union, and he denied the grievance as to these proposals. This determination was not excepted to, and, therefore, we do not address it.
Footnote # 2 for 57 FLRA No. 146
The relevant text of the collective bargaining agreement is set forth in the Appendix to this decision.
Footnote # 3 for 57 FLRA No. 146
In a similar situation, the Authority found that an award, in which the arbitrator determined that the agency had contractually agreed to bargain over § 7106(b)(1) matters and to proceed to the Panel or other third-party impasse procedures to resolve bargaining impasses, was not contrary to law and did not fail to draw its essence from the agreement. See United States Dep't of the Treasury, IRS, Washington, D.C., 56 FLRA 393 (2000).