[ v56 p249 ]
56 FLRA No. 31
U.S. DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE
BASE
NORTH CAROLINA
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188
(Union)
0-AR-3195
0-AR-3195-001
_____
DECISION
April 14, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
I. Statement of the Cases
Case Number 0-AR-3195 is before the Authority on exceptions to an award of Arbitrator Curtis Seltzer filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
Case Number 0-AR-3195-001 is before the Authority on an exception to a recusal letter of Arbitrator Seltzer filed by the Union under section 7122(a) of the Statute and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
As these cases arise from the same arbitration, we consolidate them. For the reasons that follow, we deny the Agency's exceptions in Case Number 0-AR-3195, and we deny the Union's exceptions in Case Number 0-AR-3195-001.
II. Case No. 0-AR-3195
A. Background and Arbitrator's Award
Article VIII, Section 2 of the parties' collective bargaining agreement entitles the Union President to 3 hours of official time every day; Article VIII, Section 3 requires Union representatives to request official time for additional "representational responsibilities." [n2] Pursuant to this article, the Union President (the grievant) requested, and was granted, 10 hours of official time, in addition to the 3 hours per day to which the Union President was otherwise entitled, for "representational functions" over the course of 2 days. Award at 21. These "representational functions . . . includ[ed] negotiations and research and preparation for negotiations." Id. When the grievant's supervisor discovered that Agency representatives did not intend to negotiate with the grievant on the second day, he ordered her to return to work. When she continued to perform Union representational work in the Union office, and did not return to work, her supervisor assigned her 5 hours of absence without leave (AWOL).
A grievance was filed, and submitted to arbitration, disputing the assignment of AWOL. The parties did not stipulate, and the Arbitrator did not set forth, the issue to be resolved in arbitration. [ v56 p250 ]
The Arbitrator rejected the Agency's argument that, under Article VIII, Section 2, the Union President could request official time in addition to her daily 3 hours only for negotiations, Weingarten situations, third party proceedings and management-initiated meetings. The Arbitrator concluded that the term "representational functions" in Section 2 means "whatever functions, duties and responsibilities a Union President needs to do to represent adequately the interests and members of her bargaining unit[,]" including the "functions, duties and responsibilities found in all of the applicable portions of the Contract." Award at 31. The Arbitrator also found that "[t]he contract specifically names four activities that are eligible for 'additional time,'" and "does not say that extra or additional time will not be granted for functions other than these four." Id. at 34.
The Arbitrator found that, under the parties' agreement, the Agency may deny requests for official time beyond the daily 3 hours when the request is not union-related, and may cancel approved official time where there is a "work exigency." Id. at 35. The Arbitrator determined that the Union President requested official time for a union-related purpose and that no work exigency necessitated cancellation of the official time.
The Arbitrator rejected the Agency's argument that the Union President should have returned to work and then grieved the loss of official time. The Arbitrator stated that if the Union President "[h]ad simply been an Employee, [he] would find no justification for refusing to report to work[,]" but that the parties' agreement "recognizes and authorizes privileges, responsibilities and protections for the Union President in performing her Union-related duties." Id. at 39-40. The Arbitrator stated, in this connection, that the parties' agreement "provides special protections for the singular status of Union President above and beyond those provided to her as an [e]mployee." Id.
The Arbitrator sustained the grievance and ordered the Agency to "delete the AWOL notation and make [the grievant] whole for the five hours in dispute." Id. at 42.
B. Positions of the Parties
1. Agency's Exceptions
The Agency contends that the award fails to draw its essence from the parties' agreement because "the plain wording of the Contract is not compatible with the Arbitrator's determination" that the Union President could request additional time off for general "representational functions." Exceptions at 7. In this respect, the Agency maintains that Article VIII, Section 2 permits the Union President to receive additional time off only under the four circumstances specified in that section.
The Agency also contends that the Arbitrator exceeded his authority by violating Article XLIII, Section 2 of the agreement, which provides that "[n]o arbitrator shall have the power to . . . modify the contract terms contained in this agreement." Id. at 4-5 (emphasis added by Agency). The Agency asserts that the Arbitrator modified the agreement by concluding that the reference to "representational functions" in Article VIII, Section 2 means "any representational functions." Id. at 5 (emphasis in original).
In addition, according to the Agency, the award is based on a nonfact. Specifically, the Agency contends that the Arbitrator erred in concluding that the grievant's supervisor approved her official time request for "any" representational responsibilities. Id. at 9. The Agency claims that it is clear from the wording of the Union President's request for official time that she and her supervisor both understood that she was requesting official time only for negotiations.
Finally, the Agency asserts that, in two respects, the award is contrary to law, rule or regulation. First, the Agency argues that "the award is contrary to [the] established rule that an employee has the obligation to obey management's directives, even if the employee believes such directives to be improper or unlawful." Exceptions at 3. In this regard, the Agency asserts that under Merit Systems Protection Board (MSPB) case law, an agency may discipline an employee for failing to comply with an order, even if the order is later found to be improper. Id. (citations omitted). Second, the Agency contends that the Arbitrator ignored established precedent holding that an Agency may revoke "approved leave, when the activities of the employee are inconsistent with the purpose of such leave, or when the justification for such leave is later discovered to be false or nonexistent." Id. at 10 (citations omitted).
2. Union's Opposition
The Union asserts that the Arbitrator did not improperly modify the agreement, because the Agency, not the Arbitrator, approved the request for official time for "representational functions." Opposition at 4. The Union also asserts that evidence presented to the Arbitrator at the hearing indicated that the Union President requested official time for more than simply conducting negotiations.
The Union contends that the rule that employees must obey Agency orders, and grieve later, is not relevant to this case, because this case concerns AWOL, not [ v56 p251 ] discipline. In response to the Agency's assertion that it had the right to revoke previously approved leave, the Union asserts that the grievant was in an official time status, not leave status. In addition, the Union argues that the Arbitrator found that the Union President used her official time in a manner consistent with the parties' agreement.
C. Analysis and Conclusions
1. The Award Draws its Essence from the Parties' 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it was the arbitrator's interpretation for which the parties bargained. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988).
The Arbitrator found that Article VIII, Section 3 of the parties' agreement permits the Union President to receive additional official time to perform general representational functions. In this connection, he determined that although Section 3 specifically identifies four activities, it does not limit the Union President to receiving official time only for those activities. Award at 33-34. The Agency has provided no basis for finding this interpretation of Article VIII, Section 3 implausible, irrational, or unconnected to the wording of the agreement. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement, and we deny the exception.
2. The Arbitrator Did Not Exceed His Authority.
An arbitrator exceeds his 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 within the grievance. See U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996).
The Agency's argument that the Arbitrator disregarded a specific limitation on his authority when he found that the Union President was engaged in representation functions under Article VIII, Section 2 of the parties' agreement reiterates the Agency's argument that the Arbitrator misconstrued Article VIII. Consistent with our discussion above, the Agency has provided no basis for concluding that the Arbitrator's interpretation of Article VIII is deficient. Accordingly, we find that the Agency has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception.
3. The Award Is Not Based on a Nonfact.
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of Defense, Dependents Schools and Federal Education Association, 55 FLRA 1108, 1111 (1999). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 594 (1993) (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
The Agency asserts that the Arbitrator's finding that the Agency's grant of official time was not limited to negotiations is a nonfact. However, this matter was disputed at arbitration, see Award at 27-28, and as such, the Union's assertion does not provide a basis for finding that the award is deficient. Accordingly, we deny the exception.
4. The Award Is Not Contrary to Law, Rule or Regulation.
The Agency challenges two aspects of the award as contrary to law. The Authority reviews questions of law raised by the Agency's exceptions and the Arbitrator's award 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)). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, Picatinny [ v56 p252 ] Arsenal, New Jersey, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.
a. The "Obey Now, Grieve Later" Principle [n3]
The principle that an employee is expected to "obey now, grieve later" recognizes that "employees must not take matters into their own hands, but must obey orders and carry out their assignments[,] even if believed to violate the agreement, then turn to the grievance procedure for relief." Elkouri & Elkouri, How Arbitration Works 283-84 (citations omitted) (5th ed. 1997) (Elkouri). The principle has been applied by the Authority. See, e.g., U.S. Department of Housing and Urban Development, Denver, Colorado and American Federation of Government Employees, Local 3972, 53 FLRA 1301, 1313 (1998) (HUD) (Authority denied agency exception claiming that award, which overturned a disciplinary action taken against a union official, was deficient because arbitrator failed to apply "obey now, grieve later" rule). The principle has also been applied by, among others, the National Labor Relations Board and, as the Agency points out, the MSPB. See, e.g., Krist Oil Co., Inc., 328 NLRB No. 108 (1999) (NLRB stated that "work now, grieve later" principle is "the accepted industrial norm . . . that if an employee is working, and there is a claim of employer misconduct directed at her, the employee should continue to work, make the claim, and subsequently receive a remedy for any proven misconduct"); Howarth v. U.S. Postal Service, 77 M.S.P.R. 1, 7 (1997) (MSPB held that "[e]mployees do not have an unfettered right to disregard supervisory instructions. Rather, an employee must obey the agency order, even if he believes it to be improper, and protest the propriety of the order later").
As applied, the principle has exceptions. See generally Elkouri at 284-89. See also U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Government Employees, 38 FLRA 1291, 1297-99 (1991) (Authority denied agency's exception contending that arbitrator's application of exception to "obey now, grieve later" rule was inconsistent with the agency's management rights). For example, "[s]ome arbitrators have recognized . . . exceptions to the duty to obey orders . . . where the order . . . violates the rights or domain of the union itself . . . [.]" Elkouri at 285.
In this case, the Arbitrator found that the grievant was acting within her contractual rights when she remained on official time after the completion of negotiations, and refused to return to work. The Arbitrator concluded, in particular, that the parties' agreement "provides special protections for the singular status of Union President above and beyond those provided to her as an [e]mployee." Award at 40. The Arbitrator found that there were "insufficient grounds" for the Agency to assign the grievant AWOL, and he expressly refused to apply the "obey now, grieve later" rule in these circumstances. Id. at 39.
Consistent with our conclusions above, the Agency has provided no basis for concluding that the Arbitrator's interpretation of the parties' agreement -- as granting the grievant "special protections" permitting her to remain on official time and to refuse to return to work -- is deficient. As such, we find that the Arbitrator did not err by refusing to apply the "obey now, grieve later" principle. We note, in this connection, that the MSPB decisions relied on by the Agency do not concern, or apply, the exception to the "obey now, grieve later" rule applied by the Arbitrator in this case. We also note that it is well established that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions that are not covered by 5 U.S.C. §§ 4303 and 7512. See, e.g., U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 932 (1990). The case now before us concerns AWOL, not an action under section 4303 or 7512.
Accordingly, we deny the exception. See HUD, 53 FLRA at 1313.
b. Revocation of Leave
The Agency asserts that the award is contrary to law because an agency may revoke leave when the justification for the leave no longer exists. However, the grievant was not in a leave status. The grievant was using official time. In this regard, the Authority has held that official time does not constitute leave. See Association of Civilian Technicians, Old Hickory Chapter and U.S. Department of Defense, North Carolina [ v56 p253 ] National Guard Bureau, Raleigh, North Carolina, 55 FLRA 811, 813 (1999).
In addition, even assuming that the principle advocated by the Agency applies in this case, the Agency has not demonstrated that the grievant engaged in activities inconsistent with the justification for her request for official time. The Arbitrator found that the Union President requested official time for "representational functions," and that she was engaged in such functions during the time in which the Agency regarded her as AWOL. Award at 3-4. As discussed above, we reject the Agency's exceptions to this factual finding. Accordingly, the Agency has not established that the award is contrary to law on this basis, and we deny the exception.
III. AR-3195-001
A. Background
In his award in Case Number 0-AR-3195, the Arbitrator retained jurisdiction for the purpose of determining the Agency's obligation to pay attorney fees. See Award at 42. Subsequently, in a letter to the parties, the Arbitrator stated that the Agency, as the "losing party," had failed to pay his entire fee for the arbitration, as required under the parties' agreement. Recusal Letter at 1, attachment to Union's Exceptions. The Arbitrator stated further that:
Since the Employer is unwilling to abide by the Contract he signed with the Union, I will be seeking enforcement and full payment from the Employer, plus late charges, costs of collection and attorney fees.
. . . .
As I am now in an adversarial position with the Employer and may be seeking Union enforcement of the Contract, I must recuse myself from further involvement in this case[.]
Id. at 2.
B. Positions of the Parties
1. Union's Exception
The Union asserts that the Arbitrator's decision to recuse himself is "error" because "[t]here is no provision within the FLRA's regulations or the law pertaining thereto which provides for a determination of the fee issue by any authority except the arbitrator of the original hearing." Exceptions at 2. The Union asserts on this basis that the award is contrary to law, rule, or regulation.
2. Agency's Opposition
The Agency asserts, citing section 2425.1(a) of the Authority's Regulations, that the Union's exceptions are not properly before the Authority because they do not concern an "award." [n4] The Agency also asserts that because the Arbitrator and the Agency are involved in a fee dispute, the Arbitrator appropriately recused himself from a determination regarding attorney fees. According to the Agency, another arbitrator should resolve the attorney fee request.
C. Analysis and Conclusion
The Authority has consistently held that, without specific retention of jurisdiction by the arbitrator, any further action by the arbitrator may only be taken at the joint request of the parties. See National Federation of Federal Employees, Local 11 and U.S. Department of the Air Force, Fairchild Air Force Base, Washington, 53 FLRA 1747, 1749-50 (1998); see also Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard, 35 FLRA 251, 252 (1990). However, where an arbitrator, in his or her original award, expressly retains jurisdiction to make further determinations regarding a particular matter, an arbitrator does not act improperly by issuing an award concerning that matter, and the Authority will address exceptions to that second award. See, e.g., U.S. Department of Veterans Administration, Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 38 FLRA 232, 238-39 (1990).
In his original award, the Arbitrator expressly "retain[ed] jurisdiction for the sole purpose of deciding attorney fees." Award at 42. Consistent with the precedent set forth above, the Arbitrator had jurisdiction to take subsequent action regarding the issue of attorney fees, and the Authority will address exceptions regarding that subsequent action.
Under 5 C.F.R. § 550.807(a), a request for attorney fees "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." In Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 54 FLRA 229 (1998) (ACT III), the Authority, in remanding an attorney fee [ v56 p254 ] case to the parties for resubmission to the arbitrator, stated that if the Arbitrator "is unwilling or unavailable to consider the award on resubmission to the parties," then they should "jointly submit the question of attorney fees to another arbitrator." Id. at 233-34. This is consistent with MSPB and Federal Circuit precedent holding that when the presiding official who makes an underlying decision is not available to hear an attorney fee petition, another presiding official may hear that petition, as long as the substitute judge or arbitrator does nor interfere with the underlying factual findings. See Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454 (Fed. Cir. 1984), Hawkins v. Department of the Treasury, 6 M.S.P.R. 655 (1981).
In this case, the Arbitrator has recused himself from consideration of the attorney fee request because he is in dispute with the Agency over payment of his fees. In essence, the Arbitrator has disqualified himself from consideration of attorney fees on the ground that he is not able to consider the matter neutrally. In these circumstances, we conclude that the Arbitrator is effectively unavailable to resolve the matter of attorney fees. As a result, we find that the Arbitrator's decision to decline jurisdiction over the issue of attorney fees is not deficient. However, as the Arbitrator is no longer available to consider the matter of attorney fees, we direct the parties, consistent with ACT III, to jointly submit the matter to a different arbitrator for resolution.
IV. Decision
The Agency's exceptions in Case Number 0-AR-3195 are denied. The Union's exceptions in Case Number 0-AR-3195-001 are denied. The parties are directed to submit the matter of attorney fees to a different arbitrator for resolution.
Opinion of Chairman Wasserman, concurring:
I agree with my colleagues that the Agency's exceptions to the award should be denied. However, I write separately to disagree with their approach to the "obey now, grieve later" principle.
The Agency asserts that the "obey now, grieve later" principle is a rule within the meaning of section 7122(a)(1) of the Statute and, consequently, provides a basis on which to find the award deficient. However, my colleagues note, and I agree, the principle is not set forth in any law, rule, or regulation. Accordingly, I would summarily deny the exception as we routinely do when a party has filed an exception under section 7122(a)(1), but has failed to specify a law, rule, or regulation. See, e.g., American Federation of Government Employees, Local 3369 and Social Security Administration, New York Region 1, Yonkers, New York, 55 FLRA 1290, 1293 (2000) (an award will not be found deficient as contrary to law when the excepting party fails to specify any law, rule, or regulation). To me, this is too important an aspect of our review to be left unresolved as my colleagues do, assertedly because the outcome is unaffected by the standard of review and because the Union does not dispute whether the principle constitutes a law, rule, or regulation within the meaning of section 7122(a)(1).
The Statute specifies that the Authority's primary role with respect to arbitration is to resolve exceptions filed to arbitration awards under section 7122 of the Statute. Although Congress specifically provided for review of arbitration awards in section 7122, at the same time, Congress expressly made clear that the scope of that review is very limited:
The Authority will be authorized to review the award of an arbitrator on very narrow grounds similar to the scope of judicial review of an arbitrator's award in the private sector.
S. Rep. No. 95-1272, at 153 (1978). In my view, this requires us to deny any exceptions that fail to state a ground set forth in section 7122 of the Statute on which an arbitration award can be found deficient. Moreover, this mandate is especially crucial as to review on the grounds of law, rule, or regulation under section 7122(a)(1) because we review an award asserted to be deficient on these grounds de novo, rather than deferentially.
Applying this mandate, I would find that the "obey now, grieve later" principle does not constitute a law, rule, or regulation, and I would deny the Agency's exception for failing to state a ground under section 7122(a)(1) of the Statute on which an award can be found deficient.
Footnote # 1 for 56 FLRA No. 31
Chairman Wasserman's concurring opinion is set forth at the end of this decision.
Footnote # 2 for 56 FLRA No. 31
Article VIII, Section 2 provides, in pertinent part, that:
Union representatives will be granted reasonable time . . . to perform representational functions. The Union President or acting president will be granted three hours per day . . . . Additional time will be granted to the Union President for negotiations, Weingarten situations, third party proceedings and management-initiated meetings. Representational functions include:
a. Investigate, prepare and/or present grievances, appeals, claims, ULPs and EEO complaints.
b. Consult and/or negotiate with representative(s) of the Employer concerning personnel policies, practices, and conditions of employment.
c. Research and prepare recommendations and/or proposals in connection with the above consultations, negotiations or meetings.
d. Contract administration.
e. Third party proceedings.
Section 3 provides in pertinent part that:
Representatives will request permission from their immediate supervisors whenever they wish to leave their official duties to perform any of their representational responsibilities and will report to their supervisors when they return. Permission will be granted upon request except when work exigencies preclude such release. Union time will not be unreasonably denied.
Award at 20.
Footnote # 3 for 56 FLRA No. 31
The status of the "obey now, grieve later" principle as a law, rule, or regulation is uncertain under Authority precedent. We agree with our concurring colleague that the status of this principle may affect whether arbitral application of it can properly be challenged as contrary to law. However, we see no need to resolve this issue in this case because the application of a more deferential standard of review would not alter the conclusion we have reached and, as the Union has not questioned whether the principle constitutes a law, rule, or regulation, the record contains no argument on this point. We thus review the Agency's exception de novo.
Footnote # 4 for 56 FLRA No. 31
5 C.F.R. § 2425.1(a) and 5 U.S.C. § 7122(a) both provide in pertinent part that: Either party to arbitration under the provisions of chapter 71 of title 5 of the United States Code may file an exception to an arbitrator's award rendered pursuant to the arbitration.