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  • American Federation of Government Employees, Local 2923 (Union) and United States, Department of Health, and Human Services, National Institute, of Environmental Health Sciences, National Institutes of Health (Agency)

American Federation of Government Employees, Local 2923 (Union) and United States, Department of Health, and Human Services, National Institute, of Environmental Health Sciences, National Institutes of Health (Agency)

[ v61 p725 ]

61 FLRA No. 146

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2923
(Union)

and

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
NATIONAL INSTITUTE
OF ENVIRONMENTAL HEALTH SCIENCES
NATIONAL INSTITUTES OF HEALTH
(Agency)

0-AR-4076

_____

DECISION

September 7, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Williams filed by the Union under § 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 found that the Union had violated the parties' collective bargaining agreement concerning the reporting of official time. He ordered the Union's representatives to report their official time completely and accurately, set out requirements for this reporting, and retained jurisdiction over further actions of the parties regarding official time reporting. For the reasons set forth below, we set aside the portions of the award that limit the Union's access to statutory procedures and that retain jurisdiction over future disputes and FLRA rulings. We deny the Union's remaining exceptions.

II.      Background and Arbitrator's Award

      Prior to July 2003, Union representatives employed by the Agency reported official time in a variety of formats that did not require them to report official time used at their own duty stations. At that time, a new Union Vice President was elected who "became very active" and increased the amount of official time used for representational activity. Award at 5. Subsequently, the Agency directed the Vice President to notify his supervisor in advance of all representational activity and to include representational activity conducted at his duty station in monthly reports. The Vice President objected to these new requirements, following which the parties discussed the matter. In December 2003, the parties "reached a verbal understanding" that all representation time would be reported regardless of where performed, that activities of short duration could be reported under a "miscellaneous" category, and that a list of overall issues would be reported (the December 2003 agreement). Award at 10-11. The Vice President followed this scheme from January to July 2004.

      In August 2004, the Vice President stopped estimating the amount of representational activity performed at his duty station, in response to a comment critical of the reporting scheme made by a management representative. In January 2005, the Vice President's supervisor notified him that, because he had failed to report time spent at his duty station performing representational duties, he was forbidden from conducting any Union business at his duty station and must perform all Union activity at the Union office and must seek permission from his supervisor prior to leaving the work area.  [n1]  Subsequently, the Vice President reported the time he spent performing representation in the Union office without any description of the activities performed.

      In September 2005, the Agency filed the instant grievance against the Union, which was referred to arbitration. The Arbitrator stated that the issue was: "Did the Union violate Article XXXI, § 1 (Section 1) and any other applicable provisions and if so, what shall be the remedy?" [n2]  Award at 3. [ v61 p726 ]

      The Arbitrator concluded that Section 1 requires a complete and accurate report of official time, "whether performed at [the] representative's duty station, the union office[,] or elsewhere . . . ." Award at 29. He also determined that a complete report must include a general description of the representational activity because the Statute provides for official time for negotiations, grievances, and statutory claims, but not for internal union affairs. The Arbitrator next concluded that the December 2003 agreement constituted a change to the CBA pursuant to Article III, § 2 (Section 2) of the CBA. [n3]  According to the Arbitrator, this change provided for an "estimate" of official time at a representative's duty station and for a "lump sum `miscellaneous' category" for short-term activities. Award at 33.

      The Arbitrator found that the Vice President violated Section 1 and the December 2003 agreement when he ceased estimating and reporting representational activity at his duty station in August 2004. Award at 34. To remedy the violations, the Arbitrator ordered all Union representatives to report all representation time, describing activity in the following categories: "(1) collective bargaining negotiations; (2) grievance investigation, preparation or meetings; (3) arbitration preparation or presentation; (4) change negotiation, investigation or preparation; (5) statutory claims investigation, preparation or [sic]." Id. at 41. The Arbitrator also provided that the parties "shall" utilize the "change negotiation process" in Section 2 of the CBA and the grievance-arbitration process to resolve their disputes. Id. The Arbitrator retained jurisdiction "pending further actions of the parties regarding official time proposals, agreements or unilateral decisions as well as rulings by the FLRA." Id at 41-42.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union argues that the award is contrary to law because it requires the parties to use the "change negotiation process" under Section 2 and the grievance procedure to resolve their disputes, thereby depriving the Union of its right under §§ 7116 and 7118 of the Statute to file ULP charges and precluding "other processes for dispute resolution . . . such as FLRA, FMCS, and FSIP procedures[.]" Exceptions at 2. The Union also argues that the award is contrary law because the Arbitrator retained jurisdiction over future official time disputes, including "rulings by the FLRA." Exceptions at 2 (quoting Award at 41-42).

      The Union next argues that the Arbitrator exceeded his authority and that the award fails to draw its essence from the agreement. In this regard, the Union asserts that the Arbitrator found that the December 2003 agreement modified the CBA. According to the Union, he then modified both of these agreements by, among other things, including in his award five categories of representational activity. The Union asserts that this disregards a specific limit on the Arbitrator's authority and evidences a manifest disregard of the agreement, because Article XXIV, § 3 of the CBA (Section 3) limits an arbitrator's authority to modify the agreement. [n4]  The Union also asserts that, in finding that the Vice President reported his union activities under the December 2003 agreement for several months, the Arbitrator "failed to mention" that the parties had an e-mail disagreement over "the use of lump sum miscellaneous categories." Exceptions at 3.

      Finally, the Union asserts that the award is confusing and inconsistent, which makes it practically impossible to implement. The Union provides, as an example, the following statement in the award, which it asserts is confusing: "Incidental communication times shall be reported in a lump sum with a description of included communications in accordance with the December 2003 agreement." Exceptions at 4 (quoting Award at 41).

B.      Agency's Opposition

      The Agency disputes the Union's claim that the award is contrary to law because it limits the Union's rights to use statutory procedures. According to the Agency, the Arbitrator's "admonishment" that the parties should utilize the process in their CBA was dicta on an issue that was not before the Arbitrator. Opp'n. at 4. The Agency also argues that, in any event, the award does not state that the contractual process is the exclusive way for the parties to resolve disputes. Finally, the Agency disputes the Union's claims that the Arbitrator exceeded his authority and that the award does not draw its essence from the agreement. [ v61 p727 ]

IV.      Analysis and Conclusions

A.      The award is set aside to the extent that it forecloses the Union's access to statutory procedures and to the extent that the Arbitrator retained jurisdiction over future claims and rulings of the FLRA.

      The Authority reviews questions of law 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. SeeUnited States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union argues that the award is contrary to law because it requires the Union to use contractual procedures for resolving any disputes arising from Agency changes in official time requirements, thus depriving the Union of its statutory rights to use other procedures. The Union is correct that the award states that the contractual procedures "shall" be used for such disputes, implying that other procedures are not available for resolving these disputes. Award at 41. Nevertheless, the Agency is also correct in asserting that the award does not expressly preclude the use of statutory procedures. The Agency further argues that the award should not be interpreted as depriving the Union of access to procedures other than the contractual grievance procedure.

      Nothing in the record supports the Arbitrator's award limiting the Union's right to utilize statutory, rather than contractual, procedures to resolve disputes over changes in conditions of employment. In particular, there is no indication in the award or the record that the Union waived its rights to utilize statutory procedures. See NFFE, Local Lodge 2276, Int'l Ass'n of Machinists and Aerospace Workers, 61 FLRA 387, 389 (2005) (waiver of right to file exceptions with Authority must be "clear and unmistakable"). Consequently, as both parties agree that the Union should be permitted to utilize statutory procedures that are otherwise available, we set aside the portion of the award stating that the Union "shall" use the grievance procedure.

      The Union also argues that the award is contrary law because the Arbitrator retained jurisdiction over future official time disputes, including "rulings by the FLRA." Exceptions at 2 (quoting Award at 41-42). It is well-established that an arbitrator may retain jurisdiction "for the purpose of clarification and interpretation of an award and for overseeing the implementation of remedies . . . ." United States Dep't of Veterans Admin. Medical Center, Leavenworth, Ka., 38 FLRA 232, 239 (1990); see United States Dep't of the Navy, Naval Surface Warfare Center, Indian Head Div., Indian Head, Md, 56 FLRA 848, 852 (2000). However, the Arbitrator here did not retain jurisdiction for these purposes; he retained jurisdiction over future disputes, including disputes involving FLRA rulings. The Statute provides for binding arbitration to resolve grievances. 5 U.S.C. § 7121(b)(1)(C)(iii). Nothing in the Statute gives arbitrators authority over FLRA rulings. Further, the open-ended jurisdiction retained by the Arbitrator in this case, to which the Union objects, generates a dispute over the arbitrator's own employment that he is disqualified from resolving. See United States Dep't of Veterans Affairs, Denver Regional Office, Denver, Col., 60 FLRA 235, 236 (2004); AFGE, 29 FLRA 1568, 1578-79 (1987). In these circumstances, we set aside the Arbitrator's retention of jurisdiction over matters that are within the Authority's jurisdiction as well as over future actions of the parties.

      We remand the award to the parties for resubmission to the Arbitrator, absent settlement, to modify the award to conform to this decision.

B.      The award draws its essence from the agreement.

      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 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 Union argues that the Arbitrator disregarded Section 3 of the CBA by adding to the requirements of [ v61 p728 ] Section 2 of the CBA and the December 2003 agreement to, among other things, require Union representatives to report official time usage in five categories. As the CBA and the December 2003 agreement require these reports and do not specify the content of the reports, the Union has not established that the Arbitrator disregarded the agreement by interpreting these requirements in this manner. With respect to the Union's assertion that the Arbitrator failed to mention an e-mail disagreement between the parties, the Union has not established that this fact, even if true, would demonstrate that the Arbitrator disregarded the agreements.

C.      The Arbitrator did not exceed his authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Both the Authority and the Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. See AFGE, Local 916, 50 FLRA 244, 246-47 (1995) (citing Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986)).

      The Union's argument that the Arbitrator's remedy exceeded his authority is based on Section 3 of the parties' agreement, which provides that the Arbitrator may not add to the CBA. That is, the Union's exceeded authority exception relies on its claim that the award fails to draw its essence from the agreement. Consistent with our conclusion that the portions of the remedy the Union objects to do not fail to draw their essence for the parties' agreements, the Union has not demonstrated that the Arbitrator disregarded a specific limitation on his authority. See United States Department of the Treasury, Internal Revenue Service, 60 FLRA 506, 508 (2004).

D.      The award is not incomplete, ambiguous, or contradictory so as to make implementation of the award impossible.

      The Authority will find an award deficient when it is incomplete, ambiguous, or so contradictory as to make implementation of the award impossible. See, e.g., United States. Dep't of Labor, Mine Safety and Health Admin., Southeastern District, 40 FLRA 937, 943 (1991). While the Union asserts that the award is confusing and inconsistent, the one example it gives -- concerning the reporting of incidental communications -- is not impossible to implement. That aspect of the award permits representatives to include various short conversations in one "lump sum" of time, with a description of the type of conversations included in that time. As the Union has not established that the award is impossible to implement, this exception is denied.

V.     Decision

      The portions of the award that foreclose the union from access to statutory procedures and that retain jurisdiction over future disputes and FLRA rulings are set aside. The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, for modification of the award to conform to this decision. The Union's remaining exceptions are denied.

Footnote # 1 for 61 FLRA No. 146 - Authority's Decision

   In February 2005, the Union filed two unfair labor practice (ULP) charges against the Agency concerning this Agency action and an unrelated issue. The Authority has been notified administratively that these charges were settled on March 24, 2006, and they will not be further discussed.

Footnote # 2 for 61 FLRA No. 146 - Authority's Decision

   Section 1 of the parties' collective bargaining agreement (CBA) provides, in pertinent part, "[u]nion officials and representatives . . . will maintain a complete and accurate record of their representation time on a monthly basis. On the first workday of each month the individual, union official, or representative will provide to their immediate supervisor a report detailing their representation activities for the previous month. The report should include a daily activity log including the time the individual left their work area, the time they returned to their work area, place visited, and a general description of the problem being considered . . . ." Attachment 3 at 51 to Exceptions.

Footnote # 3 for 61 FLRA No. 146 - Authority's Decision

   Section 2 provides, in pertinent part, "Prior to making changes on personnel policies and practices, . . . the Employer will provide the Union with a copy of the proposed change and provide for discussion between the Parties. The Union may . . . request to negotiate . . . ." Attachment 3 at 5 to Exceptions.

Footnote # 4 for 61 FLRA No. 146 - Authority's Decision

   Section 3 provides that, "[t]he arbitrator shall have the authority to interpret and apply the provision of this agreement. The arbitrator shall not have the authority to change, alter, amend, modify, add to or delete from the Agreement; such right is the sole prerogative of the contracting parties." Attachment 3 at 44 to Exceptions.