United States Department of Navy Marine Corps Combat Development Command Marine Corps Base Quantico and American Federation of Government Employees Local 1786 (Union)
| Decision Date | 06 August 2014 |
| Docket Number | 0-AR-4848 |
| Citation | 67 FLRA No. 131 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | UNITED STATES DEPARTMENT OF THE NAVY MARINE CORPS COMBAT DEVELOPMENT COMMAND MARINE CORPS BASE QUANTICO, VIRGINIA (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1786 (Union) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members (Member Pizzella dissenting)
The Agency unilaterally implemented a single, new position description (the joint PD) for all of its non-supervisory firefighters, replacing two separate position descriptions (PDs) – one for lead firefighters and one for non-lead firefighters. The Union filed a grievance alleging that the Agency violated the parties’ agreement by failing to provide the Union with notice and an opportunity to bargain over the impact and implementation of the joint PD. Arbitrator Seymour Strongin sustained the grievance, finding that the Agency was required to provide the Union with notice and an opportunity to bargain before implementing the joint PD. This case presents the Authority with four substantive questions.
The first substantive question is whether the award is contrary to law because the grievance is barred either as a classification matter or by previously filed unfair-labor-practice (ULP) charges involving the same subject matter. The grievance does not concern a classification matter. Further, the grievance was filed before one of the ULP charges and was based on a legal theory different than the legal theory on which the other ULP charge was based. Therefore, the answer is no.
The second substantive question is whether the award fails to draw its essence from the parties’ agreement either because the Agency’s implementation of the joint PD is “covered by” the agreement or because the Arbitrator’s interpretation of the agreement is deficient. Because the grievance alleges, and the Arbitrator found, only a contractual failure to bargain, and because the Authority’s “covered-by” doctrine does not apply to a contractual duty to bargain, the Agency’s reliance on that doctrine is misplaced. And the Arbitrator does not implausibly interpret or manifestly disregard the parties’ agreement. Therefore, the answer is no.
The third substantive question is whether the Arbitrator exceeded his authority by failing to consider whether the Agency’s implementation of the joint PD was a deminimis change in conditions of employment. As the issue before the Arbitrator involved only a contractual duty to bargain, the Arbitrator was not required to consider the de-minimis issue. Therefore, the answer is no.
The fourth and final substantive question is whether the Arbitrator erred in relying on matters that the Agency claims are excluded from the grievance-arbitration procedure. Because these matters are not excluded from the grievance-arbitration procedure by statute or by contract the answer is no.
The grievants work as non-supervisory firefighters. From 2007 to 2011, the grievants worked under either the lead-firefighter PD or the non-lead-firefighter PD. Both PDs classified the grievants in the same general schedule (GS)-7 grade level and GS-0081 occupational series. However, employees working under the lead-firefighter PD were provided certain benefits that were not provided to employees working under the non-lead-firefighter PD. The benefits permitted lead firefighters to: (1) be titled as “sergeant”;[1] (2) wear insignia denoting the sergeant rank; (3) act in the absence of a captain; and (4) be primary drivers of certain complex fire vehicles.
In 2011, the Agency unilaterally replaced the lead-firefighter and non-lead-firefighter PDs with one, joint PD, which covered all non-supervisory firefighters. The joint PD neither changed the grade level or occupational series of the affected firefighters nor changed their duties. However, the joint PD effectively eliminated the benefits that had been available under the lead-firefighter PD. On July 3, 2011, the Union filed a grievance alleging that the Agency violated Article 2, Section 18 and Article 4, Section 2 of the parties’ agreement– the relevant provisions of which are set forth in the appendix to this decision – by failing to provide the Union with notice and an opportunity to bargain before eliminating the prior PDs and implementing the joint PD.
When the parties could not resolve the grievance, they submitted it to arbitration. The Arbitrator initially held a proceeding concerning issues of arbitrability, which he resolved in an interim award. Before the Arbitrator, the Agency claimed that the grievance was not arbitrable because it concerned a classification matter within the meaning of § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) – the wording of which is set forth in section IV.A.1. below – and Article 11, Section 2 of the parties’ agreement, which contains wording identical to § 7121(c)(5) of the Statute. But the Arbitrator found that the grievance did not concern a classification matter. Instead, he determined that the grievance concerned whether the Agency violated its contractual obligations by eliminating the lead-firefighter PD without providing the Union with notice and an opportunity to bargain over the impact and implementation of the change. The Arbitrator also rejected the Agency’s claim that the grievance was barred under § 7116(d) of the Statute (set forth in section IV.A.2. below) by two ULP charges filed by the Union on December 29, 2010 (2010 ULP) and on July 5, 2011 (2011 ULP), respectively. The Arbitrator concluded that the grievance did not pertain to the same issues raised in the ULP charges. Thus, the Arbitrator found the grievance arbitrable.
In the proceeding on the merits, the parties did not stipulate to, and the Arbitrator did not frame, any issues. As relevant here, the Agency submitted the following issue statement: “Was the Agency required to bargain with the Union over the impact and implementation of its decision to change the [PDs] for [non-supervisory] [f]irefighters at [the Agency]?”[2]
The Arbitrator found that the lead-firefighter benefits constituted conditions of employment, and that the Agency’s practice of providing those benefits was consistently exercised and followed by both parties over an extended period of time. Therefore, he found that the practice constituted a past practice under Article 2, Section 18 of the parties’ agreement. He rejected the Agency’s claim that § 7106 of the Statute barred negotiations, and found that, under Article 4, Section 2 of the parties’ agreement, the Agency was required to provide the Union with notice and an opportunity to bargain before eliminating the past practice by issuing the joint PD.
Finally, the Arbitrator rejected the Agency’s argument that it had no obligation to bargain because the subject matter of the grievance is “covered by” Article 17, Section 1 of the parties’ agreement. The Arbitrator concluded that Article 17, Section 1 requires the Agency to properly maintain and update established PDs, and does not address eliminating established PDs.
The Agency filed exceptions to the Arbitrator’s award, and the Union filed an opposition to the Agency’s exceptions.
As part of its contrary-to-law argument, the Agency contends that the Arbitrator erred in finding that the sergeant title and the wearing of the sergeant insignia constituted conditions of employment.[3] According to the Agency, § 7103(a)(14)(B) of the Statute – which states that “conditions of employment” do not include policies, practices, and matters “relating to the classification of any position”[4] – excludes these two matters from the definition of conditions of employment because they relate to the classification of a position.[5]
The record shows that the Union’s argument before the Arbitrator concerned whether the Agency satisfied its contractual obligation to bargain before it implemented changes to conditions of employment.[6] As the Agency was on notice of the Union’s argument, the Agency had the opportunity to raise any related defenses or responsive arguments before the Arbitrator, including its claim that the sergeant title and the wearing of the sergeant insignia are not conditions of employment.[7] But the record does not demonstrate that the Agency made this claim to the Arbitrator. Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the Arbitrator.[8] As the Agency could have, but did not, make this claim to the Arbitrator, we dismiss this exception under §§ 2425.4(c) and 2429.5.[9]
Moreover the Agency contends that the award is contrary to § 7121(c)(5) because the grievance concerned a classification action that the Agency took when it replaced the non-supervisory-firefighter PDs with the joint PD and, thus, was not arbitrable.[10] Although the Union argues that the Agency did not raise this issue before the Arbitrator, [11] the record shows otherwise.[12] Specifically, in the interim award discussed above, the Arbitrator stated that “the Agency raises the threshold claim[] that . . . the grievance protests an Agency classification action that is not arbitrable pursuant to 5 U.S.C. § 7121(c)(5)” – a claim that the Arbitrator explicitly rejected in the...
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