The first question is whether the award is contrary to the Authority’s “covered‑by”^[1]and “IRS”^[2] doctrines.  As those doctrines apply only when an arbitrator resolves certain statutory issues – and the Arbitrator resolved only a contractual issue – we find that those doctrines do not apply. 

 

 

                The Union filed a grievance claiming that the Agency violated a past practice and several provisions of the parties’ agreement by suspending an alleged practice of accommodating all employees with non-work-related medical conditions without first giving the Union notice and an opportunity to bargain. When the grievance was not resolved, it was submitted to arbitration. Absent a stipulated issue, as relevant here, the Arbitrator framed the issue as follows: “[w]hether [the Agency’s]         light-duty denials violated a binding past practice and/or the [agreement’s] Article 3, . . . Article 4, . . . and/or Article 18.”^[3] 

 

As indicated, the case before the Arbitrator did not deal with the merits of the light-duty requests. Rather, the Arbitrator considered whether the Agency had a binding past practice of approving or disapproving any such requests. In doing so, he considered evidence of the Agency’s approval or disapproval of light-duty requests during the fourteen years preceding the events giving rise to this dispute. He found that the Agency violated a binding past practice by denying the grievants’ light-duty requests without giving the Union notice and an opportunity to bargain. In making this determination, the Arbitrator found that although the parties’ agreement did not explicitly address approval and disapproval of       light-duty requests, the parties had a “well[-]known and long[-]standing/fourteen-year practice at [the Agency] of allowing all bargaining[-]unit light[-]duty requests . . . without interruption from 1996 to . . . April 2010.”^[4] He also found that “no employee light[-]duty request . . . was denied or disapproved [from] 1996 to 2007” and it was undisputed that from 2007 to 2010, “[t]here was never an employee that was denied [a light-duty] accommodation.”^[5] This gave rise, in the Arbitrator’s opinion, to a “binding past practice [and] unwritten contractual right [of the bargaining unit]” to the approval of such requests.^[6]

 

                Separately, the Arbitrator resolved the Union’s “alternative charge that [the Agency’s] light[-]duty denials also violated Articles 4 [and] 3,”^[7] and found a violation of those contract provisions. The Arbitrator found that “Article 4c’s language incorporates Article 3-e [and] d’s language, and when read together, they collectively . . . require . . . that proposed Agency changes to ‘local working conditions’ will not be implemented prior to [the] Agency’s notification and negotiation of such working condition[s] with the [Union].”^[8] The relevant wording of these contract provisions is set forth in section IV.A. below. He further found that the Agency’s “disallowance of light duty following approximately fourteen years of uninterrupted light[-]duty approvals . . . constitutes . . . and . . . qualifies as a substantial change . . . in . . . working conditions”^[9] and that the Agency’s “unilateral disallowance of light duty . . . in turn, violated the . . . notice and negotiation terms, conditions[,] and language of Articles 4 [and] 3” of the parties’ agreement.^[10]    

 

                Finally, the Arbitrator rejected the Agency’s argument that it had no obligation to bargain because the subject matter of the change is “covered by” Article 18, Section L of the parties’ agreement.^[11] The Arbitrator quoted the “applicable” part of Article 18, Section L: “[E]mployees suffering from health conditions or recuperating from illnesses or injuries, and temporarily unable to perform assigned duties, may voluntarily submit written requests to their supervisors for temporary assignment to other duties.”^[12] The Arbitrator rejected the Agency’s reliance on Article 18, Section L, finding that although it permits employees to “voluntar[ily] submit[]” light-duty requests, it “contains no light[-]duty approval or disapproval language”^[13] and “is silent regarding   light[-]duty approvals or disapprovals.”^[14] Accordingly, the Arbitrator sustained the grievance and awarded backpay to the grievants.

 

                The Agency argues that the Federal Service Labor-Management Relations Statute (the Statute) does not require the Agency to bargain because the subject matter of the change is “covered by” Article 18, Section L of the parties’ agreement.^[15] Similarly, the Agency also argues that even if a past practice addressing the subject matter of the change existed, the change is “covered-by” Article 18, Section L.^[16] The Union claims that the Authority should not consider those arguments because they were not raised before the Arbitrator.^[17]   

 

                Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the Arbitrator.^[18] Contrary to the Union’s claim, the record shows that, at arbitration, the Agency argued that the subject of light-duty denials is “covered by” Article 18 of the parties’ agreement,^[19] and that the “covered-by” doctrine barred a past-practice claim.^[20] As the Agency raised these matters before the Arbitrator, we find that §§ 2425.4(c) and 2429.5 of the Agency’s Regulations do not bar the Agency’s exceptions regarding the “covered-by” doctrine and past practice. Therefore, we resolve these exceptions below.

 

 

                The Agency argues that the award is contrary to law in two respects. When exceptions involve an award’s consistency with law, the Authority reviews any question of law raised by the exceptions and the award de novo.^[21] 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.^[22] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings.^[23]

 

                The Agency’s first contrary-to-law argument is that the award is contrary to the “covered[-]by” doctrine.^[24] As a threshold matter, the Agency argues that the “covered‑by” doctrine applies in this case because the Arbitrator found that the Agency violated a statutory duty to bargain.^[25] In support of its argument, the Agency contends that the Arbitrator based his decision on Articles 3 and 4 of the parties’ agreement – which, according to the Agency, restate the Statute’s bargaining obligations, rather than impose a separate, contractual obligation to bargain.^[26]  The Agency asserts that the Authority made this finding in U.S. DOJ, Federal BOP, Washington, D.C. (BOP I).^[27] 

                It is well-established that the “covered-by” doctrine applies only as a defense to an alleged failure to satisfy a statutory bargaining obligation.^[28] By contrast, where a dispute involves only a contractual – as opposed to a statutory – bargaining obligation, “the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator.”^[29] So, to decide whether the “covered-by” doctrine applies, we must first determine whether the Arbitrator resolved the grievance based on a finding of a violation of a statutory or a contractual bargaining obligation.

 

                The Arbitrator made some references to statutory matters. Specifically, after finding that the term “working conditions” is “nowhere defined in” the parties’ agreement, he noted that the statutory definition of “conditions of employment” refers to “working conditions.”^[30] He then stated that because “the parties are subject to both the Statute and . . . Authority case law precedent, in order to resolve whether” the Agency changed “working conditions,” he would “take[] notice of and . . . apply the meaning, intent[,] and application of” that term that the Authority set out in a particular decision.^[31] And he found that the light-duty denials “qualif[y] as a substantial change (i.e., much greater than a de minimischange) in their working conditions/conditions of employment.”^[32] 

 

                Despite these references, however, the record supports a finding that the Arbitrator resolved the grievance based on a finding of a violation of a contractual bargaining obligation. In this regard, the grievance alleged only that the Agency violated a past practice and several provisions of the parties’ agreement.^[33] Moreover, the Arbitrator framed the issue as, in relevant part: “[w]hether . . . [the Agency’s] light[-]duty denials violated . . . the [parties’agreement].”^[34] And, relying on Article 3, Sections (d) and (e), and Article 4, Section (c) of the parties’ agreement, the Arbitrator expressly concluded that the Agency’s “unilateral disallowance of light duty . . . violated the . . . notice and negotiation terms, conditions[,] and language of Articles 4 [and] 3” of the parties’ agreement.^[35]     

 

According to the Agency, the Authority has found that Articles 3 and 4 do not impose a contractual bargaining obligation, separate from the Statute’s bargaining obligations.^[36] The Agency is incorrect. The Authority did indeed state in U.S. DOJ, Federal BOP, Federal Correctional Complex, Lompoc, California (BOP Lompoc)^[37]that Article 3, Section (c), which provides that the parties “will meet and negotiate . . . where required by 5 [U.S.C. §§] 7106, 7114, and 7117,”^[38] mirrors the Statute’s bargaining provisions.^[39] But the Arbitrator in this case did not rely on Article 3, Section (c), but on other sections of Article 3. 

 

Similarly, the Authority stated in BOP I that Article 3, Section (c) and Article 4 “specifically reference[] the parties’ statutory duties.”^[40] But the Authority made clear in BOP Ithat this statement addressed only Article 3, Section (c)^[41] and Article 4, Section (a), not the remainder of Article 4.^[42] Regarding Article 4, the Authority expressly referenced and quoted from Article 4, Section (a).^[43]   Similar to Article 3, Section (c), Article 4, Section (a) states that the parties “shall have due regard for the obligation imposed by 5 [U.S.C. §§] 7106, 7114, and 7117.”^[44] But as with Article 3, Section (c), the Arbitrator in this case did not rely on Article 4, Section (a), but on a different section of Article 4.

 

In contrast to the contract provisions discussed above, the provisions that the Arbitrator relied on in this case – Article 3, Sections (d) and (e), and Article 4, Section (c) –  recognize a contractual obligation to bargain and do not mention the Statute. Specifically, Article 3, Section (d), Paragraph 5 states that “when locally proposed policy issuances are made, the local Union [p]resident will be notified . . . and the manner in which local negotiations are conducted will parallel this article.”^[45] The Authority in BOP I found that Article 3, Section (d) establishes an independent contractual bargaining obligation and makes no reference to any statutory bargaining obligation.^[46] Article 3, Section (e) states that “[n]egotiations . . . will take place within thirty (30) calendar days of the date that negotiations are invoked.”^[47]  And Article 4, Section (c) states both that “[t]he [e]mployer will provide expeditious notification of [the] changes to be implemented in working conditions” and that “[s]uch changes will be negotiated in accordance with the provisions of [the parties’ a]greement.”^[48] As Article 3, Sections (d) and (e), and Article 4, Section (c) do not mention the Statute, and as the Arbitrator did not otherwise discuss the Statute and made specific references to a purely contractual dispute as mentioned above, we find that the Arbitrator resolved the grievance based on a finding of a violation of a contractual – not a statutory – obligation to bargain.

 

Overlooking the import of Article 3, Sections (d) and (e) and Article 4, Section (c), the dissent argues, erroneously, that this case is controlled by the D.C. Circuit’s decision in Federal BOP v. FLRA       (BOP II).^[49] BOP II held that the Agency did not have an obligation to bargain under the Statute over certain   work-assignment matters not at issue here.^[50] In the court’s view, the parties had resolved their respective rights and obligations under the Statute concerning those

work-assignment matters by agreeing to contract provisions that “covered” those matters.^[51] Under the “covered-by” doctrine, questions about a party’s compliance with agreed-upon contract provisions are “properly resolved through the contractual grievance procedure.”^[52] The Arbitrator in the instant case did just that. He resolved questions about the Agency’s compliance with the agreed-upon contract provisions at issue here – which are different from the contract provisions involved in BOP II. Because BOP II does not deal with contract-compliance issues, or the contract provisions here involved, it is inapposite. 

 

 

                As the Arbitrator resolved the grievance based on a finding of a violation of a contractual, not a statutory bargaining obligation, the “covered-by” doctrine does not apply in this case.^[55] Accordingly, we reject the Agency’s reliance on that doctrine to set aside the Arbitrator’s determination to grant the grievance. We note that the Agency also argues that all remedies, including backpay and restored leave, must be set aside because the Agency’s actions were “covered by” the parties’ agreement.^[56] As the “covered-by” doctrine does not apply, we reject this argument as well.

 

                The Agency’s second contrary-to-law argument is that the award is contrary to the “IRS doctrine.”^[57] The “IRS doctrine” applies where a party asserts that a provision of the parties’ agreement permits an action alleged to be an unfair labor practice (ULP).^[58] It applies only to alleged statutory refusals to bargain and other types of ULPs.^[59] Because we have found that this case involves only a contractual refusal to bargain – not a statutory refusal to bargain or other type of ULP – the “IRS doctrine” does not apply. Therefore, the award is not contrary to law on this basis.            

 

 

                The Agency also argues that the award fails to draw its essence from the parties’ agreement because the Arbitrator’s reliance on Article 3(d) of the parties’ agreement is “misplaced.”^[60] According to the Agency, Article 3(d) applies only to the Agency’s obligation to negotiate the impact and implementation of “national policy issuances made by the Agency.”^[61] The Agency contends that the Arbitrator should not have relied on Article 3(d) to support his finding of a contractual bargaining obligation because this case does not involve a national policy issuance, but an alleged, local past practice concerning light-duty requests.^[62]   

 

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.^[63] 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.^[64] 

 

                The Agency’s argument provides no basis for finding that the award fails to draw its essence from the parties’ agreement.  Paragraph 5 of Article 3(d) states that “when locally proposed policy issuances are made, the local Union [p]resident will be notified as provided for above, and the manner in which local negotiations are conducted will parallel this article.”^[65] It was not irrational, unfounded, implausible, or in manifest disregard of the parties’ agreement for the Arbitrator to interpret this provision to support a bargaining obligation over “locally proposed policy issuances.”^[66]  Accordingly, we find that the award does not fail to draw its essence from the parties’ agreement.

 

                The Agency argues that the award is based on a nonfact in two respects. To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[67] However, an arbitrator’s conclusion that is based on an interpretation of the parties’ agreement does not constitute a fact that can be challenged as a nonfact.^[68] In addition, the Authority will not find an award deficient on the basis of an arbitrator’s determination of any factual matter that the parties disputed at arbitration.^[69] 

 

                First, the Agency asserts that the award is based on a nonfact because, to support his finding of a bargaining obligation, the Arbitrator relied on Article 3(d) of the parties’ agreement.^[70] As discussed above, the Agency claims that Article 3(d) applies only to the Agency’s obligation to negotiate the impact and implementation of “national policy issuances.”^[71] The Agency is challenging the Arbitrator’s interpretation of Article 3(d), which does not constitute a fact that can be challenged as a nonfact.^[72] Therefore, we find that the award is not based on a nonfact in this regard.  

 

                Second, the Agency claims that the award is based on a nonfact because the Arbitrator failed to consider evidence indicating that the Agency had no past practice of granting all light-duty requests.^[73] However, the issue of the existence of a past practice was disputed at arbitration.^[74] As stated above, the Authority will not find an award deficient on the basis of an arbitrator’s determination of any factual matter that the parties disputed at arbitration.^[75] Therefore, we find that the award is not based on a nonfact in this regard.

                Further, the dissent’s claim, that “the disapprovals [of light-duty requests] made by [the current warden could] create a past practice in favor of disapproval,”^[76] is wrong for a number of reasons. Not only is it inconsistent with the Arbitrator’s finding of a contrary past practice. The dissent’s claim also reflects a fundamental misunderstanding of past-practice principles. Under those principles, if a party does not acquiesce in the actions of the other party, then that would preclude a finding of a past practice.^[77]  The Union filed the grievance that ultimately was decided by the Arbitrator in this case because the Union did not acquiesce in the current warden’s disapprovals of       light-duty requests.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

---