35:0340(38)AR - - Navy, Puget Sound Naval Shipyard, Bremerton, WA and AFGE Local 48, Bremerton MTC - - 1990 FLRAdec AR - - v35 p340
[ v35 p340 ]
The decision of the Authority follows:
35 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
BREMERTON METAL TRADES COUNCIL
March 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Philip Kienast. The exceptions were filed by the American Federation of Government Employees, Local 48 on behalf of the Bremerton Metal Trades Council and the grievant under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the exceptions.
The Agency denied an employee's request to be transferred from the swing shift to the day shift. The employee grieved the denial and the Arbitrator denied the grievance. The Union contends that the Arbitrator's award is deficient because the Arbitrator exceeded his authority and the award is based on a nonfact.
We conclude that the Union has not established that the Arbitrator's award is deficient under section 7122 of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant has been employed for several years as a Computer Operator in the Agency's data processing department (the department). The department operates 24 hours a day, 7 days a week in three different shifts. Unlike other components of the Agency, the department's policy is to hire employees for a specific shift with transfers between shifts allowed "only when a vacancy occurs on another shift." Award at 2.
Prior to January 1989, the grievant had always requested to work the second (swing) shift. In January 1989 the grievant requested to be transferred from the swing shift to the first (day) shift. This request was denied in February 1989 "because no vacancy on the day shift existed at the time." Id. at 1, 2.
The grievant filed a grievance which was submitted to arbitration on the following stipulated issue: "Did the Employer violate the intent of Article 07 Section 0706 in denying [the grievant's] request to change to first shift? If so, what shall the remedy be?" Id. at 1.
Article 07, Section 0706 of the parties' collective bargaining agreement states:
Assignment to Backshifts. The Employer agrees, when assigning employees to shifts other than the first shift, supervisors will consider volunteers to the extent practical. In making second and third shift assignments, the Employer must be guided primarily by the qualifications necessary to support and accomplish the work to be performed. The Employer agrees to give consideration to those employees desiring to further their education when making shift assignments. An employee not desiring second or third shift may request assignment to another shift after 120 days. Except under unusual circumstances, the employee's request will be granted. However, an employee may be required to remain for a longer period due to work circumstances.
Id. at 1-2.
The Arbitrator found that "Section 0706 gives the Employer some discretion in delaying request[s to change a] shift for unusual and/or work circumstances. It is clear that data processing schedules and shift assignment policies are 'unusual.'" Id. at 3-4. The Arbitrator determined that when the Union negotiated Section 0706 it was aware of the department's policy to deny shift change requests if no vacancy existed on the requested shift. He stated that the Union knowingly "agreed to language that stated 'unusual circumstances' could justify delaying shift change requests from [the swing shift]." Id. at 4.
The Arbitrator stated that, "[h]aving found that unusual circumstances in data processing gave the Employer a basis for delaying the grievant's request until a vacancy on day shift occurred, the question now becomes whether the Employer treated the grievant evenhandedly in denying his request while previously having allowed [other employees to transfer from the swing shift]." Id. at 4-5. The Arbitrator concluded that "[t]here is insufficient evidence to prove the Employer has treated other employees differently than the grievant." Id. at 5.
Accordingly, the Arbitrator concluded that the Agency did not violate the parties' agreement and denied the grievance.
III. Union's Exceptions
The Union contends that the Arbitrator exceeded his authority under the parties' collective bargaining agreement by "expand[ing] the issue to examine conditions which are not at dispute." Exceptions at 1. The Union argues that "[t]he very core of the grievance is the challenge of the policy which is indeed different from the rest of the [Agency's] operation," and takes issue with the Arbitrator's finding that the department's shift assignment policy was "unusual" as a basis to determine that the Agency did not violate the parties' agreement when it denied the grievant's request. Id. Further, the Union contends that the Arbitrator's consideration of the parties' bargaining history was "clearly beyond the scope of review of what the intent of [the] language was" in the parties' agreement. Id.
The Union further contends that the award is deficient because it is based on a nonfact. The Union disputes the Arbitrator's finding that the data processing department is "[u]nlike [the Agency's] other shops and departments." Award at 2. The Union argues that the Arbitrator erred by concluding that the department is "unique" because employees in the unit "work seven days per week, around the clock." Exceptions at 2. Specifically, the Union states that the Arbitrator made a "most grievous error" by stating that "no other department works similar schedules." Id. at 5, quoting Award at 4. The Union states that "[e]very single production shop in [the Agency] has an established permanent second and third shift." Id.
Section 7122(a) of the Statute provides that an arbitration award may be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relation cases.
The Union does not contend that the award is contrary to any law, rule, or regulation. The Union contends that the award is deficient because the Arbitrator: (1) exceeded his authority by "expand[ing] the issue to examine conditions which are not at dispute"; and (2) "based his award on [a] non-fact, but for which a different result would have been reached." Exceptions at 1.
We reject the Union's contention that the Arbitrator exceeded his authority by expanding the issue to examine conditions which are not at dispute. The Arbitrator has not, as the Union alleges, addressed extraneous issues. Rather, the Arbitrator determined, contrary to the Union's contention otherwise, that Section 0706 "gives the Employer some discretion in delaying request[s to change a] shift for unusual and/or work conditions." Award at 3. We conclude that the Arbitrator's award is directly responsive to the issue submitted for resolution and that the Union is merely disagreeing with the Arbitrator's interpretation of the issue before him. See U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Gainesville, Florida and American Federation of Government Employees, Local 2779, 34 FLRA 475 (1990) (VAMC, Gainesville, Florida).
We also reject the Union's contention that the award is based on a nonfact. We will find an award deficient under the Statute because it is based on a nonfact when it is demonstrated that the central fact underlying the award is concededly erroneous and constitutes a gross mistake of fact for which a different result would have been reached. U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 763-64 (1990).
None of the facts considered erroneous by the Union was a central fact underlying the award but for which a d