35:1213(138)AR - - Transportation, Maritime Administration, James River Reserve Fleet and NAGE Local R4-47 - - 1990 FLRAdec AR - - v35 p1213
[ v35 p1213 ]
The decision of the Authority follows:
35 FLRA No. 138
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
JAMES RIVER RESERVE FLEET
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
May 31, 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 Francis W. Flannagan filed by the Union 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 filed an opposition to the Union's exception.
The grievance alleged that the Agency violated the parties' collective bargaining agreement by contracting out the work of repairing two ships without first notifying the Union and providing the Union with an opportunity to submit its views and recommendations. The Arbitrator determined that the Agency did not violate the agreement, as alleged, and dismissed the grievance.
For the following reasons, we conclude that the Union has not demonstrated that the award is deficient because it fails to draw its essence from the parties' agreement and is based on a nonfact. Accordingly, we will deny the exceptions.(*)
II. Background and Arbitrator's Award
The Agency awarded work involving routine maintenance and inspection of two ships to a private shipping company. The Union filed a grievance alleging that the Agency's action violated Article XX of the parties' agreement, which provides, in relevant part:
Section 1. The Union will be notified of studies conducted by the Fleet to determine the contracting out of Fleet work functions that may have an adverse impact on unit employees. The Employer will inform the Union at least 30 days in advance of contracting decisions involving unit employees.
Section 2. The Employer agrees to carefully consider the views and recommendations of the Union regarding the contracting out of unit work functions which may have an adverse impact on unit employees.
Award at 1.
Before the Arbitrator, the Union argued, among other things, that the contracting out of the maintenance and inspection work "had an adverse impact on the bargaining unit employees." Id. at 5. The Union's president acknowledged, however, that the Agency's action had "no present adverse impact on the Union but there could be in the future, as well as a possible loss of overtime." Id. at 4. The Agency maintained that Article XX "does not apply to potential or futuristic adverse impacts." Id. at 5.
As is relevant to this case, the Arbitrator stated that the Agency was required to follow Article XX only if the "studies in contracting out 'may have an adverse impact on unit employees.'" Id. at 8. The Arbitrator stated further that the Union had the burden to prove "such adverse impact." Id. The Arbitrator concluded that the Union had failed to meet its burden. The Arbitrator noted the Union'sargument that "there might be an adverse impact in the future." Id. at 9. The Arbitrator found, however, that he could not "consider possible future breaches of the labor agreement, only such breach as predates the grievance." Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union's Exceptions
The Union asserts that the Arbitrator's award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. The Union maintains that it proved that the Agency violated Article XX and that the Arbitrator's finding that the Union was required to prove the Agency's action resulted in actual, as opposed to potential, adverse effects on unit employees is erroneous. The Union asserts also that the Arbitrator's conclusion that there was no adverse impact on unit employees as a result of the Agency's action is unreasonable and is based on a misinterpretation of the parties' agreement. The Union contends that the Arbitrator "ignored the facts" in reaching his conclusion. Exceptions at 6.
The Union requests the Authority to set aside the Arbitrator's award, direct the Agency to assign the maintenance and inspection work in question to unit employees until the contracting out of that work is accomplished in accordance with the agreement, provide unit employees with backpay for all work which improperly was contracted out, and require the Agency to pay the Arbitrator's fee.
B. The Agency's Opposition
The Agency contends that the Union's exceptions constitute an attempt to relitigate the dispute. The Agency maintains that the parties disagreed over the interpretation of Article XX, and that the Arbitrator "accepted management's interpretation and a showing that there was no adverse impact." Opposition at 2.
IV. Analysis and Conclusions
A. The Union Has Not Demonstrated That the Award Fails to Draw Its Essence From the Parties' Agreement
In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990) (U.S. Department of Labor).
The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the collective bargaining agreement under any of the above tests. The Arbitrator referenced the applicable portions of Article XX, correctly noted the parties' differing interpretations of the article, and concluded that the Union had not demonstrated that the Agency's action violated the article. In our view, the Arbitrator's interpretation of the agreement as precluding him from considering "possible future breaches of the labor agreement" represents a plausible interpretation of the agreement. Award at 9.
The Union has not demonstrated that the award fails to draw its essence from the agreement. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's findings, conclusions, and interpretation and application of the parties' agreement. Accordingly, this exception provides no basis for finding the award deficient under section 7122(a) of the Statute. See U.S. Department of Labor, 34 FLRA at 761-62.
B. The Union Has Not Demonstrated That the Award is Based on a Nonfact
The Union contends that the award is deficient because the Arbitrator "ignored the facts" in concluding that the Agency's action did not result in an adverse impact on unit employees. We will, for the purposes of this decision, construe the Union's exception as a contention that the award is based on a nonfact.
We will find an award deficient because it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, id. at 763.
Based on the Arbitrator's interpretation of the parties' agreement, as well as testimony and evidence presented at the arbitration hearing (including testimony from the Union's president), the Arbitrator concluded that the Union had failed to prove that the Agency's action violated Article XX. The Arbitrator noted that, as a result of the Agency's action: (1) no unit jobs were abolished, (2) there was no reduction in force, (3) no work was taken away from unit employees, (4) no job responsibilities were shifted, and (5) the number of unit employees increased. Award at 8-9. The Union has not demonstrated that the Arbitrator's conclusion that the Agency's action did not violate the agreement is based on any clearly erroneous finding on a central fact.
We conclude that this exception constitutes mere disagreement with the Arbitrator's findings of fact and his interpretation and application of the parties' agreement. Accordingly, this exception provides no basis for