U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 3412 (Authority decision, December 15, 1986)

Final FLRA decision. The Authority modifies an arbitration award concerning office partitions at HUD's Jacksonville office. Section 7123(a)(1) excludes Authority orders involving arbitration awards from its ordinary 60-day judicial-review provision unless the order involves an unfair labor practice under § 7118; this decision does not decide one.

Plain-English summary

An arbitrator ordered HUD to provide acoustic screens after finding that changes to its Jacksonville office breached the labor agreement and the agency's space management handbook. HUD argued that partitions were outside the grievance and that the remedy improperly covered staff outside the bargaining unit. The Authority held that the arbitrator could address partitions because the grievance invoked the agreement provision tied to the handbook. It agreed, however, that the award reached beyond the bargaining unit. It modified the remedy to require screens for bargaining unit employees, consistent with office configuration.

Decision snapshot

• Authority: Exceptions to arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Award modified to limit the acoustic screen remedy to bargaining unit employees.
• Key point: An arbitrator may interpret a grievance broadly but must keep an affirmative remedy within the dispute's bargaining unit scope.

Full text (FLRA public release)

[ v24 p442 ]

24:0442(47)AR

The decision of the Authority follows:

24 FLRA No. 47

U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL NO. 3412
Union

Case No. 0-AR-1124

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Alred J. Goodman files by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievance in this case concerns the Agency's implementation of space reductions and alterations in its Jacksonville office. As the office alterations began, the parties met to netotiate appropriate arrangements for bargaining unit employees adversely affected by the alterations. When management declared most of the Union's proposals were not negotiable and proceeded with the alterations, the Union filed a grievance claiming management violated Article 36 and Article 3, Section 3.01 and 3.08 of the parties' collective bargaining agreement. The dispute was submitted to arbitration where the parties could not agree on a stipulation of the issues. The Arbitrator framed the issues before him as follows:

Did Management violate the HUD-AFGE Agreement by failing to bargain in good faith and by violating Article 36; Article 3, Sections 3.01 and 3.08; Article 5, Section 5.02; the Space Management Handbook; and other regulations?

In framing the issues to be resolved, the Arbitrator explained that in its grievance the Union specifically alleged a violation of Article 36 of the agreement and that Article 36 made pertinent the Agency's space management handbook, including provisions for acoustic screens. After considering the evidence and testimony, including testimony by management's director of administrative services on the use of acoustic screens under the space management handbook and testimony confirming management's offer during negotiations to use additional partitions, the Arbitrator ruled that management violated Article 36 of the agreement because acoustic screens had not been provided in accordance with the space management handbook. Accordingly, as his award, the Arbitrator ordered as follows:

Management will survey all floors occupied by HUD in Jacksonville, Florida, and provide free-standing acoustic screens in the ratio of at least one linear foot for each 30 occupiable square feet in accordance with Section 4-2d, consistent with the provisions of Section 4-3c of the Space Management Handbook No. 2216.1 dated November 30, 1983.

III. EXCEPTION

The Agency contends that the award is deficient because the Arbitrator exceeded his authority in a number of ways. The Agency contends that the Arbitrator exceeded his authority by deciding the issue of placement of partitions because that issue was not submitted to arbitration. More specifically, the Agency argues that nothing in the grievance suggested any dispute relating to the placement of partitions and that the Arbitrator's use of the claimed violation of Article 36 to authorize him to address the Agency's space management handbook was tenuous. The Agency further argues that the Arbitrator exceeded the limits of his authority under the parties' collective bargaining agreement and that management was harmed by the issue of partitions being raised for the first time without warning at the arbitration hearing. The Agency also contends that the Arbitrator exceeded his authority by rendering an award that encompasses personnel outside the bargaining unit. The Agency maintains that the Arbitrator's award is not limited to space occupied by bargaining unit employees and claims that it would be impossible to limit the implementation of the award to the bargaining unit because of office configuration placing bargaining unit employees and nonbargaining unit personnel together.

In its opposition the Union disagrees with the Agency. The Union argues that the Article 36 claim properly authorized the Arbitrator to address and resolve whether management complied with its own regulations including the space management handbook. The Union specifically disputes that the issue of partitions was raised for the first time and without warning at the hearing. The Union asserts that the issue of partitions was extensively covered in its proposals that management declared nonegotiable. The Union also specifically disputes that the award improperly encompasses personnel outside the bargaining unit. Contrary to the contention of the Agency, the Union asserts that the award only affects bargaining unit employees because all nonbargaining unit personnel already have partitions or offices.

IV. ANALYSIS AND CONCLUSIONS

We conclude that the Arbitrator did not exceed his authority by resolving the issue of partitions, but that he did exceed his authority to the extent that his award is not limited to bargaining unit employees.

The Authority has held that an arbitrator exceeds his or her authority if the arbitrator resolves an issue not submitted to arbitration. For example, National Center for Toxicological Research, Jefferson, Arkansas and American Federation of Government Employees, Local 3393, NCTR, Jefferson, Arkansas, 20 FLRA No. 81 (1985). But the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of issues in the absence of a stipulation by the parties the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. For example, Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982). Similarly, both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. For example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Kentucky and American Federation of Government Employees, Local 817, 21 FLRA No. 108 (1986); IAM District 776 v. Texas Steel Co., 639 F.2d 279 (5th Cir. 1981).

In this case no basis is provided for finding that the Arbitrator exceeded his authority by resolving the issue concerning partitions. This contention constitutes nothing more than disagreement with the Arbitrator's formulation of the issue in the case in the absence of a stipulation by the parties and with the Arbitrator's fashioning of a remedy for management's violation of the agreement. In its grievance the Union specifically alleged a violation of Article 36 which the Arbitrator found to encompass the space management handbook, including the provisions pertaining to placement of acoustic screens. The Agency's assertion that this formulation by the Arbitrator is "tenuous" merely disagrees with the Arbitrator's formulation and, in view of the substantial deference accorded arbitrators, provides no basis for finding the award deficient. The Agency also fails to establish that this issue was raised for the first time at the hearing or that the Agency was prejudiced. The director of administrative services testified to management's offer during negotiations to use additional partitions and the Agency fails to substantiate that no proposals were offered by the Union relating to partitions. Furthermore, we are unable to conclude that the Agency is prejudiced by the Arbitrator's remedy effectively ordering the Agency to comply with the acoustic screen provisions of its own space management handbook to the extent that the provisions apply.

The Authority has also held that an arbitrator exceeds his or her authority when the arbitrator issues an affirmative order affecting positions and personnel beyond the scope of the matter submitted to arbitration. For example, Environmental Protection Agency, Region 9 and Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA 365 (1985). In this case we find that the Arbitrator exceeded his authority by failing to confine his remedy to bargaining unit employees. The issues submitted to arbitration were expressly confined to the parties' collective bargaining agreement and necessarily were focused on bargaining unit employees. Consequently, the Arbitrator's award must be confined to bargaining unit employees. We will modify the award accordingly. In modifying the award, we find that the Agency has failed to establish that an award requiring the provision of acoustic screens to bargaining unit employees consistent with office configuration is impossible to implement.

V. DECISION

Accordingly, the award is modified to provide as follows:

Management will survey all floors occupied by HUD bargaining unit employees in Jacksonville, Florida, and provide consistent with office configuration free-standing acoustic screens to those employees in the ratio of at least one linear foot for each 30 occupiable square feet in accordance with Section 4-2d, consistent with the provisions of Section 4-3c, of the Space Management Handbook No. 2216.1, dated November 30, 1983.

Issued, Washington, D.C. December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY