United States Department of Defense, Defense Logistics Agency, Defense Distribution Depot Red River, Texarkana, Texas (Agency) and National Association of Independent Labor, Local 5 (Union), 0-AR-4881
| Decision Date | 29 August 2014 |
| Docket Number | 0-AR-4881 |
| Citation | 67 FLRA No. 141 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | UNITED STATES DEPARTMENT OF DEFENSE DEFENSE LOGISTICS AGENCY DEFENSE DISTRIBUTION DEPOT RED RIVER TEXARKANA, TEXAS (Agency) and NATIONAL ASSOCIATION OF INDEPENDENT LABOR LOCAL 5 (Union) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members (Member Pizzella dissenting)
A grievance was filed alleging that the Agency’s reassignment of an employee (the grievant) violated Article IV of the parties’ collective-bargaining agreement (Article IV), which provides that “all employees will be treated in a fair and equitable manner.”[1] The parties asked the Arbitrator to resolve whether “the grievant [was] treated in a fair and equitable manner when he was [reassigned].”[2] Arbitrator Archie E. Robbins sustained the grievance and directed the Agency to return the grievant to his previous position “with no loss of any benefits or seniority.”[3] This case presents the Authority with five substantive questions.
The first substantive question is whether the Arbitrator exceeded his authority by awarding a remedy without finding a violation of law or contract. Because the Arbitrator implicitly found a contractual violation, the answer is no.
The second substantive question is whether the Arbitrator exceeded his authority by directing the Agency to return the grievant to his previous position, despite the Agency’s claim that he is medically unable to perform the duties of that position. Because the Agency provides no basis for finding that the Arbitrator was precluded from directing this remedy, the answer is no.
The third substantive question is whether the award is based on nonfacts. Because the Agency’s nonfact arguments misinterpret the award, the answer is no.
The fourth substantive question is whether the award is contrary to § 7106(a) of the Federal Service Labor-Management Relations Statute (the Statute)[4] and fails to draw its essence from a contract provision mirroring § 7106(a). Because the Agency has not properly raised a claim that the parties’ agreement is unenforceable, the answer is no.
And the fifth, and final, substantive question is whether the Arbitrator’s interpretation of Article IV fails to draw its essence from the parties’ agreement. Because the Agency does not demonstrate that the Arbitrator’s interpretation of the parties’ agreement is irrational unfounded, implausible, or in manifest disregard of the agreement, the answer is no.
This matter, which arose because the Agency reassigned the grievant (an employee of the Agency for over thirty-six years) from one division to another, involves the Agency’s purported concerns with nepotism. In this connection, the Anti-Nepotism Act (the Act) prohibits a public official from, for example, appointing, employing, promoting, or advancing a relative.[5] And the Agency has a personnel policy (the personnel policy) with similar prohibitions.[6]
After the grievant had worked for the Agency for many years, the Agency made the grievant’s nephew the grievant’s second-level supervisor. Three years later, the Agency promoted the nephew, and he became the grievant’s third-level supervisor. About two years after promoting the nephew to third-level supervisor, the Agency reassigned the grievant from the division in which he had worked for over twelve years to a different division.
A grievance was filed alleging that the reassignment violated Article IV, which provides that “all employees will be treated in a fair and equitable manner.”[7] The grievance went to arbitration.
The parties asked the Arbitrator to resolve whether “the grievant [was] treated in a fair and equitable manner when he was [reassigned].”[8] The Union argued to the Arbitrator, among other things, that it was unfair to reassign the grievant because, although he had done nothing wrong, the Agency was reassigning the grievant to a division in which the working conditions were significantly more physically demanding than the working conditions in the division where the grievant had worked for over twelve years. Specifically, the Union argued that the grievant’s new division differed from the grievant’s original division by requiring outside work and the manual handling of heavier loads – without the benefit of equipment, like hoists, and the assistance of two co-workers, that were available to the grievant in his original division.[9]
Because the Agency explained its decision to reassign the grievant by citing the Act and the personnel policy, the Arbitrator examined whether the prohibitions in these documents justified reassigning the grievant “without any other factors being involved.”[10] In this regard, the Arbitrator found that both the Act and the policy prohibit an employee from, for example, “appoint[ing], employ[ing], [or] promot[ing] . . . a relative.”[11] The Arbitrator also found, however, that there was no allegation that the grievant or his nephew had engaged in any of these prohibited activities, as neither had been involved in any decisions regarding personnel actions concerning the other. In particular, the Arbitrator found that the nephew had “no i[n]put in the employment of” the grievant, and that the grievant was employed by the Agency, not by his nephew.[12]
The Arbitrator further found that neither the Act nor the personnel policy prohibits an employee from working within the chain of command of a relative. In particular, the Arbitrator noted that the personnel policy provides a procedure whereby employees may recuse themselves from participating in personnel actions that involve a relative, and that the grievant’s nephew testified to his willingness to follow this procedure “should a question regarding nepotism arise.”[13]
Next, the Arbitrator noted that the personnel policy requires employees to “avoid . . . engaging in conduct that would cause a reasonable person with knowledge of the facts to question [their] impartiality.”[14] However, the Arbitrator found that, out of the two hundred employees who worked in the same division as the grievant and his nephew, not one person – “not one . . . reasonable person[]” – complained during the five years that the grievant worked within his nephew’s chain of command.[15] The Arbitrator concluded that neither the Act nor the policy justified the Agency’s decision to reassign the grievant to resolve its nepotism concerns stemming from its appointment of the grievant’s nephew as one of the grievant’s supervisors.
In addition, the Arbitrator addressed evidence regarding whether the grievant had medical problems that prevented him from performing the duties of his previous position, and whether that was a basis for the reassignment. The Arbitrator found that the medical reports were not the basis for the reassignment, and the Arbitrator relied on the testimony of the grievant’s immediate supervisor that the grievant “had no problem with . . . weigh[t] lifting.”[16]
Based on the foregoing, the Arbitrator found that it was improper for the Agency to reassign the grievant based upon only his nephew’s promotion. Accordingly, the Arbitrator sustained the grievance. As a remedy, he directed the Agency to return the grievant to his previous position “with no loss of any benefits or seniority.”[17]
The Agency filed exceptions to the Arbitrator’s award, and the Union filed an opposition to the Agency’s exceptions.
In the context of challenging the Arbitrator’s “decision to reverse the [g]rievant’s reassignment, ”[18] the Agency argues that “the Arbitrator did not make a finding that the Agency violated any contract provision for appropriate arrangements that was negotiated pursuant to . . . [§] 7106(b) [of the Statute], because no such contract provision was negotiated.”[19] As discussed further below, we find that the Arbitrator implicitly found a violation of Article IV of the parties’ agreement. There is no evidence that the Agency argued, before the Arbitrator, that Article IV was not negotiated under § 7106(b), or that interpreting Article IV to preclude reassignment in the circumstances of this case would render that contract provision unenforceable. And it should have known to do so. In this connection, the grievance alleged that the Agency “violat[ed] Article IV when [it] . . . provided [the grievant with] a [n]otice of [r]eassignment, ” and, echoing the wording of Article IV, requested that the Agency treat the grievant “in a fair and equitable manner” and “[c]ancel” the notice of reassignment.[20] In other words, the Union argued that Article IV should be interpreted as precluding the grievant’s reassignment in the circumstances of this case. Consistent with §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, because there is no evidence that the Agency argued at arbitration that enforcing Article IV in this manner would render that contract provision unenforceable, the Agency may not make its § 7106(b) argument for the first time on exceptions.[21] Accordingly, we dismiss the portions of the Agency’s exceptions that make that argument.
The Agency makes two arguments that the Arbitrator exceeded 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.[22] The Authority has held that an arbitrator who resolves the issue before him or her by finding no violation – but...
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