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55 FLRA No. 48
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-143
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
YUMA AREA OFFICE
YUMA, ARIZONA
(Agency)
0-AR-3050
_____
DECISION
March 16, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
The Union timely filed exceptions to an award of Arbitrator Irwin E. Russell under section 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 Arbitrator denied a grievance that the Agency failed to fulfill its bargaining obligation. We find that the Union has not established that the award is deficient. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance after the Agency assigned the grievant to the new position of Shift Engineer/Dredgehand (Operator). The new assignment resulted from a reorganization of the facility maintenance division intended to reduce operations and costs at the Agency. In order to achieve the reduction "with the least adverse effect on the employees involved[,]" the Agency and the Union entered into partnership discussions. Award at 3.
The Union's national representative suggested creation of the Operator position at the partnership discussions. The Arbitrator determined that the grievant, who attended the partnership meetings as the local Union president, agreed to be assigned to the new position. Id. at 4. When the grievant eventually received notice that he would be assigned to the new position, he filed a grievance alleging that the new position would require him to perform tasks for which he had no preparation. The Agency responded that it did not regard the change in duties as significant, but that if necessary it would provide the grievant with training. The Agency also advised that the changes in the grievant's tasks had been discussed and agreed to in the partnership meetings.
The grievance then went to arbitration. The parties did not stipulate, and the Arbitrator did not formulate, the issue to be resolved. Instead, the Arbitrator set forth the parties' statements of the issue which pertained to the Agency's statutory and contractual obligations to bargain over the Operator position.
The Arbitrator denied the grievance. In reaching this result, the Arbitrator did not expressly set forth the statutory requirements regarding an agency's obligation to bargain. Noting the Union's contention that the issue "should be considered as a matter involving Impact and Implementation and therefore a permissible subject for bargaining under Article 11 of the Collective Bargaining Agreement[,]" the Arbitrator stated that he could not "find facts in the record to sustain the argument that the Agency ha[d] violated Article 11 of the Collective Bargaining Agreement[.]" [n2] Id. at 5-6.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that "[t]he award is contrary to [l]aws and [r]egulations governing the Union[']s right to negotiate over changes in conditions of employment." Exceptions at 1. The Union also argues that the award fails to draw its essence from the collective bargaining agreement because the "award failed in any rational way [to] be derived from the parties['] collective bargaining [ v55 p318 ] agreement by denying the Union the statutory entitlement to negotiate changes in conditions of employment, if requested by the Union[.]" Id. at 3 (emphasis in original).
B. Agency's Opposition
The Agency contends that the Union's exceptions should be dismissed because the Union, by failing to serve copies of its exceptions on all Agency counsel of record, did not comply with 5 C.F.R. § 2429.27(a) and (b). [n3]
The Agency also argues that the Union has failed to supply a factual basis for concluding that the award is contrary to law and that the award fails to draw its essence from the agreement. Opposition at 5. The Agency asserts that the partnership process constituted negotiation over the grievant's change in duties.
IV. Analysis and Conclusions
A. The Union's Exceptions were Properly Filed
We reject the Agency's contention that the exceptions fail to comply with 5 C.F.R. § 2429.27. The Authority has declined to dismiss filings on the basis of minor deficiencies where the deficiencies did not impede the opposing party's ability to respond. See, e.g., Social Security Administration, Branch Office, East Liverpool, Ohio and American Federation of Government Employees, Local 3448, 54 FLRA 142, 145-46 (1998) (citing U.S. Department of the Navy, Naval Audit Service, Southeast Region and National Federation of Federal Employees, 44 FLRA 717, 717 n.1 (1992)). Here, the Agency timely filed an opposition to the Union's exceptions demonstrating that its ability to file an opposition was unimpaired.
B. The Arbitrator's Award Draws its Essence from the Collective Bargaining Agreement
We reject the Union's assertion that the award does not draw its essence from the parties' collective bargaining agreement. To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the 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. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).
The Arbitrator stated that he could not "find facts in the record to sustain the argument that the Agency has violated Article 11 of the Collective Bargaining Agreement[.]" Award at 6. In addition, the Arbitrator found that the parties had discussed the change over a number of months. We note that bargaining can take place in a variety of forums, including partnership. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 319 (1997). The Union asserts that the Arbitrator, by failing to find a violation under the contract, violated the Statute. However, the Union has not demonstrated that the Arbitrator's interpretation of the relevant contractual provision is implausible or irrational or otherwise fails to draw its essence from the agreement under the standard set forth above. Accordingly, we find that the Union's exception provides no basis for finding the award deficient.
C. The Award is Not Contrary to Law
As the Union's contention that the award is contrary to laws and regulations governing the Union's right to negotiate over changes in conditions of employment involves the award's consistency with law, we review the questions of law raised by the exception de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
As argued in the exceptions, it is apparent that the Union views Article 11 of its agreement as setting forth the bargaining obligations that existed in this case. In this connection, the Union has not argued that the contract provides any different bargaining rights than exist under the Statute. We do not hereby determine that the Union has conceded that it waived its bargaining rights under the Statute, although its failure to distinguish between the contractual and statutory rights may suggest that they are identical here. Rather, we simply find that the Union has not advanced any argument to show [ v55 p319 ] why the Arbitrator's findings and conclusions regarding the Union's failure to prove a violation of the contractual duty to bargain do not encompass the statutory duty, as well. Under the circumstances of this case, we conclude that the Union has provided no basis for determining that the award is contrary to law.
V. Decision
The Union's exceptions are denied.
Chair Phyllis N. Segal, Concurring in Part and Dissenting in Part
I agree with my colleagues that the award in this case does not fail to draw its essence from the parties' agreement. However, I dissent from the majority's conclusion rejecting the Union's contrary to law claim. For the following reasons, I would remand this aspect of the award to the parties for resubmission, if necessary, to the Arbitrator.
There is no dispute that, as the Arbitrator acknowledged, the Union's grievance alleged that the Agency violated the Statute by failing to bargain over the impact and implementation of creating the Operator position. There also is no dispute that the Arbitrator made no findings and expressed no conclusion on this alleged statutory violation.
The Union clearly excepts to the award on the ground, as relevant here, that it violates the Statute. There is no question that the exception is properly before the Authority. To resolve this exception, the Authority's task is to assess whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the Arbitrator's underlying factual findings. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.
As the Arbitrator made no findings and expressed no conclusion regarding the Union's statutory claim, it is not possible, in my view, to resolve the Union's exception based on the record in this case. The Majority does so by finding that the Union has effectively conceded that its rights to bargain under Article 11 of the parties' agreement and the Statute are the same. I find insufficient support for finding a concession by the Union on this critical point. In addition, such concession appears particularly unlikely in view of the fact that Article 11 makes no reference to, and does not otherwise restate, the Statute. Even if it did, the Authority has long held that, although we generally defer to an arbitrator's interpretation of a contract provision, where that provision reiterates a provision of the Statute, we "must exercise care" to ensure that the arbitrator's interpretation is consistent with the Statute. U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 43 FLRA 147, 153 (1991) (award remanded where Authority could not determine whether award involving contract provision that reiterated section 7106 of the Statute was based solely on contract interpretation or whether it was based on interpretation of Statute). Such care is particularly important, in my view, when the effective result of an award, such as the one here, is a finding that the union's rights under the parties' agreement have supplanted its rights under the Statute, presumably including the Statute's enforcement mechanisms.
In sum, the Union's claim that the award violates its rights to bargain under the Statute is properly before us and cannot be resolved without finding that the Union has conceded a point that, in turn, renders its claim without merit. I would not find, in effect, that the Union has waived its right under the Statute to bargain. As the record does not otherwise permit resolution of the exception, I would remand.
Footnote # 1 for 55 FLRA No. 48
Chair Segal's separate opinion, concurring in part and dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 55 FLRA No. 48
Article 11 provides in pertinent part:
Matters Appropriate for Negotiation
Section 1. It is agreed that the Union and the Employer shall negotiate the Impact and Implementation of proposed changes in personnel policies, practices, and matters affecting working conditions of employees in the Bargaining Unit.
Section 2. If the Union desires to negotiate concerning the changes, it must notify the Employer in writing within five (5) work days of the notification. The Union will then have an additional ten (10) workdays to submit a written proposal.
Footnote # 3 for 55 FLRA No. 48
5 C.F.R. § 2429.27(a) and (b) provides in pertinent part that:
(a) [A]ny party filing a document as provided in this subchapter is responsible for serving a copy upon all counsel of record or other designated representative(s) of parties, upon parties not so represented. . . .
(b) Service of any document or paper under this subchapter, by any party including documents and papers served by one party on any other party, shall be accomplished by certified mail, first-class mail, commercial delivery, or in person . . . .