When an Agency director of field operations learned that some on-duty officers were stopping for food when traveling between worksites, the Agency issued the food-stop ban, which stated, in relevant part: “When traveling [between worksites] in a government or personal vehicle while on duty, you cannot stop for food or use a drive‑thru to purchase food.”^[1] The ban also stated that employees could not leave their worksites to purchase meals. 

 

 

 

 

 

                The Arbitrator determined that there was an established past practice of prohibiting employees from leaving the worksite to get food. She found that this, and several other factors not relevant here, supported a conclusion that “the Union ha[d] not established that” instances of officers stopping for food between worksites “created a past practice that became a part of the parties’ negotiated agreement.”^[3] The Arbitrator found instead that the food-stop ban was a “reaffirmation of [an] established policy,” and was not a change to a condition of employment over which the Agency was required to provide notice and an opportunity to bargain.^[4] Therefore, the Arbitrator found that the Agency did not violate the parties’ agreement or the Statute when it failed to bargain before issuing the food-stop ban.

 

                Nevertheless, “[f]or the sake of completeness,”^[5] the Arbitrator “assume[d] for the sake of argument” that the food-stop ban changed a condition of employment, and she considered the parties’ other arguments.^[6] In this regard, as relevant here, the Arbitrator found that the Agency did not violate its contractual or statutory duty to bargain because: (1) the disputed subject matter was “covered by” the parties’ agreement;^[7] and (2) the change was not more than “de minimis.”^[8]

 

 

                Article 6, Section 1.B.(1) pertinently provides that the Agency has the authority to “assign” and “direct” employees.^[9] The Arbitrator found that although this contract wording “does not directly deal with the subject matter of breaks or stopping for food,” allowing officers to stop for food “does directly affect the Agency’s overall ability to assign work and direct the workforce.”^[10]

 

 

 

The Arbitrator found that this section “covers rest breaks” and “indicates that rest breaks are tied into Article 6 and the Agency’s right to assign and direct the workforce.”^[12] The Arbitrator noted that the food-stop ban instructed employees not to stop for food when traveling between worksites because the officer is on duty during such travel. In addition, the Arbitrator found that the parties agreed that rest breaks for officers who do not travel are taken on premises and are paid, which means that the officer may be called to duty during a break. According to the Arbitrator, “[a]n officer stopping for food may be reachable only by cell phone if he has gone into a restaurant,”^[13] and “[i]t is not reasonable to expect management to be forced to telephone individual officers on their cell phones in the event they are needed, especially if the need involves an emergency situation.”^[14] 

 

                Additionally, the Arbitrator stated that “[s]topping for food at the officer’s convenience, when the duration of the break may be variable, may also run afoul of the contractual language that rest breaks are to be of reasonable duration and taken at reasonable times.”^[15] In this regard, the Arbitrator stated that “[m]anagement loses the ability to determine or know how long the rest break is when the officer stops to pick up food,” and when officers stop for food, “this is time in which an officer is not directly available to the Agency and is time that should be counted toward the officer’s paid rest break of up to [twenty] minutes.”^[16] The Arbitrator determined that, “[b]y including this language in the [agreement], the parties have demonstrated their intention to limit what can be done during a rest break as such breaks are of short duration, defined as up to [twenty] minutes, and the officer remains on duty.”^[17] According to the Arbitrator, the agreement “makes no provision for lunch breaks, paid or unpaid, and employees are expected to eat during lulls in activity,” and this “omission signifies an intention on the part of the parties that officers covered by the [agreement] do not get lunch breaks.”^[18] And the Arbitrator concluded that “[t]he language in the [agreement] regarding rest breaks tends to show that the parties did not want employees to be unavailable during a rest break, which includes                 . . . stopping for food.”^[19]

 

                Next, the Arbitrator addressed Article 37, Section 10.D., which provides that “[s]upervisors may excuse occasional brief absences from duty of less than one (1) hour when the employee provides the supervisor with an explanation for the absence.”^[20] The Arbitrator found that this wording “makes it clear that:                  (1) employees may request brief absences from work;    (2) such absences require an acceptable explanation;     (3) absences must be less than one hour; and                 (4) supervisors must approve these brief absences.”^[21] The Arbitrator also found that “[i]f an officer is stopping to pick up food in transit between work locations, he is absent from work[,] and he may be holding up an officer at the next location.”^[22]

 

 

the disputed issue of stopping to pick up food while en route to another work location is more than tangentially related to subjects covered by the agreement, i.e.[,] the Agency’s right to direct the workforce, the requirement to provide rest breaks at reasonable times and of reasonable duration consistent with the Agency’s right to assign work and workload demands, and the requirement that supervisory approval be obtained for breaks of less than one hour.^[23] 

 

 

 

 

 

The Union argues that the Arbitrator exceeded her authority.^[24] As relevant here, arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration or resolve an issue not submitted to arbitration.^[25] In the absence of a stipulated issue, the arbitrator’s formulation of the issue receives substantial deference.^[26] 

 

                The Union argues that the Arbitrator failed to resolve an issue submitted – whether there was a past practice of officers stopping for food between worksites.^[27] But the Arbitrator expressly resolved that issue when she found that “the Union ha[d] not established that” officers stopping for food when traveling from one worksite to another “created a past practice that became a part of the parties’ negotiated agreement.”^[28] Thus, the Union’s argument is unfounded.

 

                The Union also argues that the Arbitrator resolved an issue that was not submitted – whether there was a past practice of officers leaving the worksite to get food.^[29] In resolving the submitted issue – whether there was a past practice of stopping for food between worksites – the Arbitrator relied on several factors, including a past practice of not allowing officers to leave the worksite to get food.^[30] The Union provides no basis for finding that, by doing so, the Arbitrator abused the substantial deference that she receives in framing and resolving the issues.^[31] Thus, the Union’s argument provides no basis for finding that the Arbitrator exceeded her authority.

 

 

                The Union contends that the Arbitrator’s application of the “covered-by” doctrine is contrary to law.^[32] The Authority reviews “de novo” an arbitrator’s legal conclusion that a matter is or is not “covered by” an agreement.^[33] However, in so doing, the Authority defers to the arbitrator’s factual findings and contract interpretations.^[34] 

 

                The “covered-by” doctrine has two prongs.^[35] Under the first prong, the Authority examines whether the subject matter of the change is expressly contained in the agreement.^[36] The Authority does not require an exact congruence of language.^[37] Instead, the Authority finds the requisite similarity if a reasonable reader would conclude that the contract provision settles the matter in dispute.^[38]

                If the agreement does not expressly contain the matter, then, under the second prong of the doctrine, the Authority will determine whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement.^[39] In doing so, the Authority will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining.^[40]

 

 

 

 

The Arbitrator found that this wording “covers rest breaks and provides that breaks will be of reasonable duration and taken at reasonable times consistent with the [Agency]’s right to assign work and workload demands.”^[42] And the Arbitrator found that “a rest break  . . . includes . . . stopping for food.”^[43] Therefore, under the Arbitrator’s interpretation, Article 34, Section 12 addresses the matter of stopping for food. 

 

                In addition, also as stated previously, Article 37, Section 10.D. of the parties’ agreement provides that “[s]upervisors may excuse occasional brief absences from duty of less than one (1) hour when the employee provides the supervisor with an acceptable explanation for the absence.”^[44] The Arbitrator interpreted this provision as discussing “absences from work,” and found that “[i]f an officer is stopping to pick up food in transit between work locations, he is absent from work.”^[45] Therefore, the Arbitrator interpreted this provision’s reference to “absences from duty”^[46] as applying to officers who stop for food between worksites.

 

                The Union does not claim that the Arbitrator’s contractual interpretations fail to draw their essence from the parties’ agreement. Accordingly, we defer to the Arbitrator’s interpretations.^[47] And these        interpretations – that stopping for food while on duty is both a “rest period[]”^[48] under Article 34, Section 16 and an “absence[] from duty”^[49] under Article 37, Section 10.D. – support her conclusion that the subject matter of stopping for food is “covered by” the parties’ agreement. In this connection, even assuming that the agreement does not “expressly contain” the matter of stopping for food under the first prong of the       “covered-by” test^[50] – an issue we need not decide – that matter is “inseparably bound up with, and thus plainly an aspect of,”^[51] rest periods and absences from duty. In this regard, given the arbitral findings that stopping for food is a rest period and an absence from duty, there is no basis for finding that the parties should have anticipated further bargaining over that matter.^[52]

 

                In addition, while purporting to challenge the Arbitrator’s interpretation of the “covered-by” doctrine, the Union effectively concedes that Article 37, Section 10.D. addresses the matter of stopping for food. Specifically, the Union states that: (1) Article 37, Section 10.D. “certainly demonstrates that local supervisors are ‘responsible management officials’ for purposes of the past practice at issue”;^[53] and (2) “the         . . . [a]greement and the Arbitrator’s award make it clear that, for purposes of the instant case, local supervisors are ‘responsible management officials’ under the law.”^[54] In other words, the Union claims that Article 37, Section 10.D. “demonstrates” that local supervisors are responsible management officials with authority to condone the alleged past practice of stopping for food.^[55] If, as the Union claims (and the Agency does not dispute), Article 37, Section 10.D. identifies the specific Agency officials having authority to authorize the specific practice (stopping for food) in dispute here, it necessarily follows that the provision “covers” that practice.

 

                In arguing that the Arbitrator erred in finding the matter “covered by” the agreement, the Union challenges the Arbitrator’s reasoning in various respects. Specifically, the Union contends that the Arbitrator:  injected her “personal opinion”^[56] regarding the reasonableness of the alleged practice and found the matter “covered by” the agreement because she “simply doesn’t like the policy implications of a contrary conclusion”;^[57] and never found the practice “expressly contained in” or “inseparably bound up with” the agreement.^[58] In assessing whether an arbitrator’s award is contrary to law, the Authority assesses the arbitrator’s legal conclusions, not his or her underlying reasoning.^[59] Therefore, the Union’s challenges to the Arbitrator’s reasoning provide no basis for finding the Arbitrator’s “covered-by” conclusion deficient.

 

                The Union also argues that, under the Arbitrator’s analysis, “the Union is precluded from bargaining over any topic that falls within the general range of the Agency’s right to assign and direct work.”^[60] As an initial matter, the Arbitrator did not make such a finding. And to the extent that the Union is referring to the Arbitrator’s interpretation of the management-rights provision of the parties’ agreement – Article 6, Section 1.B.(1) – we find it unnecessary to rely on that provision in reaching our “covered-by” conclusion. For these reasons, the Union’s argument does not demonstrate that the Arbitrator’s “covered-by” conclusion is contrary to law.

 

                Further, the Union contends that this case is “very similar”^[61] to U.S. Customs Service, Customs Management Center, Miami, Florida     (Customs Florida).^[62] In Customs Florida, the Authority found that employee attendance at, and participation in, the annual “Florida Law Enforcement Games”^[63] (Florida Games) in a different city from the employees’ worksite was not “covered by” the agreement at issue there.^[64] The Authority found that: the agreement did not mention participation in any games, let alone the Florida Games; and the Florida Games were not inseparably bound up with either a contract provision involving a particular ongoing individualized fitness program that took no more than three hours a week, or a “catch[-]all,” administrative-leave provision that permitted supervisors to grant administrative leave for up to fifty-nine minutes to employees who are unavoidably tardy reporting to work.^[65] The Authority also reviewed the parties’ bargaining history and found that the parties did not contemplate attendance and participation at the Florida Games when the cited contract provisions were negotiated.^[66] 

 

                By contrast, here: the parties’ agreement mentions rest periods and absences from duty, which the Arbitrator found included stopping for food; and the Arbitrator did not find, and the Union does not cite, any evidence regarding bargaining history that supports the Union’s position. And that the agreement does not mention food is consistent with the fact that the officers involved in this dispute do not have periods set aside to eat. Instead, as the Arbitrator found, the officers do not get lunch breaks, and are “expected to eat during lulls in activity.”^[67] Therefore, Customs Florida is distinguishable and does not provide a basis for finding that the Arbitrator’s “covered-by” conclusion is deficient.

 

In addition to its arguments regarding the “covered-by” doctrine, the Union challenges the Arbitrator’s application of the “de minimis” standard.^[68] The Authority has held 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 in order to demonstrate that the award is deficient.^[69] The Arbitrator’s finding that the Agency’s food-stop ban was “covered by” the agreement provides a basis – separate and independent from her application of the “de minimis” standard – for her conclusion that the Agency did not violate the Statute by failing to bargain.  As the Union has not demonstrated that the Arbitrator’s “covered-by” conclusion is deficient, and that finding provides a separate and independent basis for her finding of no statutory violation, it is unnecessary to resolve the Union’s “de minimis” argument.

 

                It is likewise unnecessary to resolve the Union’s contention that the Arbitrator erred in finding that the food-stop ban did not breach “the terms of a lawful past practice.”^[70] As the Union does not claim that the parties’ agreement imposes bargaining obligations that differ from those imposed by the Statute, and as the Union has not shown that the Agency violated its statutory bargaining obligations, the Union also provides no basis for finding that the Agency violated its contractual bargaining obligation. 

 

                Further, the Union does not argue that the Agency violated a substantive provision of the contract   (a provision other than one requiring bargaining). Moreover any such argument would be inconsistent with the Union’s position that the subject of the food-stop ban is not covered by the parties’ agreement: the Agency could not have violated a substantive contract provision unless the contract provision “covers” the subject matter at issue.^[71] And such arguments, if properly made, are reviewed using the deferential “essence” standard,^[72] even if the argument is that an alleged past practice modified the parties’ agreement.^[73] As the Union has not filed an essence exception, the Union has provided no basis for the Authority to assess whether the parties modified their agreement by past practice.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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