Red River Army Depot (Activity) and National Association of Government Employees, Local R14-52 (Union) 

 



[ v03 p228 ]
03:0228(32)AR
The decision of the Authority follows:


 3 FLRA No. 32
 
 RED RIVER ARMY DEPOT
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R14-52
 Union
 
                                            Case No. 0-AR-38
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR LAWRENCE S. MORGAN FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY BEGAN USING LARGE FLAT-BED TRAILERS (CALLED "MISSILE
 TRAILERS") PULLED BY A SMALL MOTOR VEHICLE (CALLED A "TOWMOTOR") TO
 TRANSPORT MATERIALS AND SUPPLIES BETWEEN POINTS ON THE ACTIVITY.
 CONTENDING THAT THE MISSILE TRAILERS AND TOWMOTORS LACKED ADEQUATE
 SAFETY EQUIPMENT, /1/ THE UNION FILED A GRIEVANCE ALLEGING THAT THE
 ACTIVITY WAS VIOLATING THE PARTIES' NEGOTIATED AGREEMENT BY NOT
 PROVIDING AND MAINTAINING SAFE WORKING CONDITIONS.  NO SETTLEMENT COULD
 BE REACHED, AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR SET FORTH ARTICLE XXII, SECTION 2 AS ONE OF THE
 "APPLICABLE CONTRACT PROVISIONS" PERTINENT TO THE MATTER BEFORE HIM:
 
    ARTICLE XXII-- SAFETY AND INDUSTRIAL HYGIENE.
 
    SECTION 2.  THE EMPLOYER WILL EXERT EVERY EFFORT TO PROVIDE AND
 MAINTAIN SAFE WORKING
 
    CONDITIONS AND INDUSTRIAL HEALTH PROTECTION FOR THE EMPLOYEES, USING
 APPLICABLE RULES,
 
    REGULATIONS AND DIRECTIVES.  THE UNION WILL COOPERATE TO ACHIEVE THAT
 END AND WILL ENCOURAGE
 
    ALL EMPLOYEES TO WORK IN A SAFE MANNER.
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR STATED:
 
    (T)HIS GRIEVANCE WAS FILED TO SECURE SAFER WORKING CONDITIONS, AND
 THE QUESTION BEFORE THE
 
    ARBITRATOR IS NOT SO MUCH WHETHER THE EMPLOYER WAS, PRIOR TO THE
 FILING OF THE GRIEVANCE,
 
    REMISS IN ITS PERFORMANCE OF ITS OBLIGATIONS UNDER ARTICLE XXII,
 SECTION 2, BUT WHETHER UNDER
 
    EXISTENT CIRCUMSTANCES, THE UNION HAS REASONABLE CAUSE TO COMPLAIN
 THAT THE EMPLOYER IS NOT
 
    PROVIDING AND MAINTAINING "SAFE WORKING CONDITIONS."
 
    THE ARBITRATOR NOTED THAT FOLLOWING THE FILING OF THE GRIEVANCE THE
 ACTIVITY HAD TAKEN CERTAIN STEPS WITH RESPECT TO THE SAFETY OF THE
 EQUIPMENT, INCLUDING MAKING TECHNICAL INSPECTIONS OF THE EQUIPMENT;
 EQUIPPING THE TOWMOTORS AND TRAILERS WITH TAIL LIGHTS, STOP LIGHTS AND
 REFLECTORS;  ISSUING GLOVES TO THE TOWMOTOR OPERATORS;  INSTALLING
 "GOVERNORS" TO LIMIT THE TOWMOTORS' SPEED TO 5 MILES PER HOUR;  AND
 ORDERING CABS FOR THE TOWMOTORS.  THEREFORE, THE ARBITRATOR FOUND:
 
    (T)HE EMPLOYER HAS MADE, AND WITHIN THE LIMITS OF ITS ABILITY IS
 MAKING, SUCH IMPROVEMENTS
 
    TO LESSEN THE LIKELIHOOD OF INJURY IN THE OPERATION OF THE
 TOWMOTOR-MISSILE TRAILER
 
    COMBINATION THAT THE UNION NO LONGER HAS ANY REASONABLE GROUND TO
 COMPLAIN.
 
    CONCLUDING THAT THE UNION HAD FILED THE GRIEVANCE TO SECURE SAFER
 WORKING CONDITIONS AND THAT IT HAD ALREADY SECURED THEM, THE ARBITRATOR
 DENIED THE GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT
 OF THIS EXCEPTION THE UNION REFERS TO CERTAIN PROTECTIVE EQUIPMENT WHICH
 HAS BEEN ORDERED BY THE ACTIVITY, BUT HAS NOT BEEN RECEIVED AND
 INSTALLED, AND ARGUES THAT BECAUSE THE EQUIPMENT IS NOT YET INSTALLED,
 THE ACTIVITY IS NOT PROVIDING AND MAINTAINING SAFE WORKING CONDITIONS AS
 REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT.  ADDITIONALLY, THE
 UNION ARGUES THAT BECAUSE THE EQUIPMENT HAS NOT BEEN RECEIVED AND
 INSTALLED, THE AWARD IS CONTRADICTORY TO AN AGENCY DIRECTIVE AND AN
 AGENCY HANDBOOK, AND FOR THESE REASONS THE AWARD DOES NOT DRAW ITS
 ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.
 
    THE UNION'S FIRST EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY
 WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.
 UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, CASE
 NO. O-AR-7, 2 FLRA NO. 60 (JAN. 17, 1980).  HOWEVER, IN THIS CASE THE
 UNION DOES NOT DEMONSTRATE IN ITS EXCEPTION THAT THIS AWARD FAILS TO
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  THUS, THE
 UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S AWARD CANNOT IN ANY
 RATIONAL WAY BE DERIVED FROM THE AGREEMENT;  OR IS SO UNFOUNDED IN
 REASON AND FACT, SO UNCONNECTED WITH THE WORDING AND PURPOSE OF THE
 COLLECTIVE BARGAINING AGREEMENT AS TO MANIFEST AN INFIDELITY TO THE
 OBLIGATION OF THE ARBITRATOR;  OR THAT IT EVIDENCES A MANIFEST DISREGARD
 OF THE AGREEMENT;  OR THAT, ON ITS FACE, THE AWARD DOES NOT REPRESENT A
 PLAUSIBLE INTERPRETATION OF THE CONTRACT.  SEE UNITED STATES ARMY
 MISSILE MATERIEL READINESS COMMAND, SUPRA, AND PRIVATE SECTOR CASES
 CITED THEREIN.  INSTEAD, THE UNION'S ARGUMENTS IN SUPPORT OF ITS
 EXCEPTION THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT
 CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND
 APPLICATION OF THE AGREEMENT PROVISION BEFORE HIM.  THAT IS, THE UNION
 IS SEEKING TO HAVE ITS OWN INTERPRETATION OF THE WORDS "PROVIDE AND
 MAINTAIN" AS USED IN ARTICLE XXII, SECTION 2 SUBSTITUTED FOR THE
 ARBITRATOR'S INTERPRETATION OF THOSE WORDS AND HIS APPLICATION THEREOF
 TO THE MATTER BEFORE HIM.  THIS DOES NOT CONSTITUTE A BASIS FOR FINDING
 AN AWARD DEFICIENT.  UNITED STATES ARMY MISSILE MATERIEL READINESS
 COMMAND, SUPRA.  THEREFORE, THE UNION'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON
 A NONFACT.  IN SUPPORT OF THIS EXCEPTION THE UNION AGAIN REFERS TO THE
 WORDS "PROVIDE" AND "MAINTAIN" AS USED IN ARTICLE XXII, SECTION 2 OF THE
 COLLECTIVE BARGAINING AGREEMENT, AND TO CERTAIN OF THE ARBITRATOR'S
 FINDINGS, AND CONCLUDES THAT THE AWARD "IS BASED ON THE NONFACTS THAT
 THE EMPLOYER IS PROVIDING AND MAINTAINING SAFE WORKING CONDITIONS AND
 THAT THE EMPLOYER HAS MADE IMPROVEMENTS TO LESSEN THE LIKELIHOOD OF
 INJURY IN THE OPERATION OF THE TOWMOTOR-MISSILE COMBINATION."
 
    THE