35:1267(145)AR - - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec AR - - v35 p1267
[ v35 p1267 ]
The decision of the Authority follows:
35 FLRA No. 145
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION 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 Emily Maloney filed by the Union under section 7122(a) of the Federal Service Labor Management Relations Statute (Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator found that the Agency did not violate provisions in the parties' collective bargaining agreement by failing to ask the grievant whether he desired to work overtime. Accordingly, the Arbitrator denied the grievance.
For the following reasons, we conclude that the Union has failed to demonstrate that the award is deficient under section 7122 of the Statute.
II. Background and Arbitrator's Award
The grievant, a Test Cell Operator working as part of a three-person crew in the Agency's Engine Department, was on sick leave on August 3, 1989. On that date, the Agency determined a need for one crew to work overtime on the following 2 days. As relevant here, Article 11(S)(3) of the parties' collective bargaining agreement provides that if the Agency determines that overtime is necessary, the Agency will "first seek volunteers among qualified employees." Award at 2.
The Agency sought volunteers from among, and subsequently assigned overtime to, three Test Cell Operators who were on duty at the time the need for overtime was determined. The Agency also requested that a mechanic work overtime with the three Operators. The grievant, who had learned that overtime work was available, telephoned his supervisor to inquire about working overtime. The grievant was informed that the Agency had obtained sufficient qualified volunteers from among the employees on duty on August 3.
A grievance was filed contesting the Agency's failure to call the grievant to determine whether he wished to volunteer to work overtime. When the grievance was not resolved, it was submitted to arbitration on the following issue:
Whether the Employer violated Article 11(S)--Overtime--by failing to call the grievant to work overtime on August 4 and 5, 1989? If so, what is the appropriate remedy?
Award at 2.
Before the Arbitrator, the Union argued that Article 11(S) requires the Agency to seek volunteers for overtime, based on a seniority roster, from among employees who are at work or on annual or sick leave. The Union also argued that, as the grievant inquired about working overtime, the work should have been assigned to him instead of the mechanic. The Agency maintained that, consistent with Article 11(S), its practice was to seek volunteers from among employees on duty at the time a need for overtime was determined. The Agency asserted that it solicited volunteers from among employees on annual or sick leave only if there were insufficient numbers of employees currently on duty who volunteered.
The Arbitrator concluded that the Agency did not violate Article 11(S) by failing to ask the grievant whether he desired to work overtime. The Arbitrator found first that Article 11(S) "could reasonably be interpreted as requiring the Employer to seek volunteers only from among employees then at work." Id. at 7. Second, the Arbitrator found that the record before her failed "to establish a consistent, binding past practice . . . of calling employees on annual and/or sick leave in order of seniority to work available overtime." Id. Finally, the Arbitrator concluded that the Agency's decision to assign overtime to a mechanic was not shown to be arbitrary or capricious, but instead, was a "reasonable exercise of . . . discretion under the circumstances." Id. at 8. For all of these reasons, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union contends that the award is deficient because it "violates law, specifically 5 U.S.C. [§] 7701(C)(2)(a), harmful error, and the collective bargaining agreement." Exceptions at 1.
In support of its contention that the award violates law, the Union asserts that the Arbitrator erred in failing "to draw inference" against the Agency because of the Agency's refusal to produce certain witnesses and documents at the arbitration hearing. Id. at 2. The Union claims that those witnesses and documents would have supported the Union's position. The Union notes, in this regard, that section 7114(b)(4) of the Statute requires, in certain circumstances, that agencies provide unions with requested information.
The Union also contends that the portion of the parties' agreement requiring the Agency to seek volunteers for overtime does not differentiate between employees at work and employees on leave. According to the Union, the Agency and the Arbitrator have "unilaterally change[d] the provisions of [the agreement]." Id. at 3.
IV. Analysis and Conclusions
A. The Award Does Not Violate Law
We conclude that the Union has failed to demonstrate that the award violates law. We note first that the harmful-error rule of 5 U.S.C. § 7701(c) applies to an arbitrator's resolution of grievances over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 34 FLRA 850, 853 (1990). The harmful-error rule does not apply to other actions, including the allegedly wrongful denial of overtime in dispute in this case. Accordingly, the Union's contention that the award violates 5 U.S.C. § 7701(c) provides no basis for finding the award deficient.
In addition, although the Union cites section 7114(b)(4) of the Statute, the Union has not claimed, and there is no basis on which to conclude, that it requested information from the Agency under that section. There is, therefore, no basis on which to conclude that the award violates section 7114(b)(4).
Finally, we note that although an arbitration award will be found deficient if it is established that the arbitrator failed to conduct a fair hearing, an arbitrator has considerable latitude in the conduct of a hearing. In this case, the Union asserts only that if the Arbitrator had required the Agency to produce certain witnesses and documents, those witnesses and documents "would have supported the Union's position." Exceptions at 2. This assertion does not establish that the Union was denied a fair hearing. Rather, in our view, this assertion establishes only the Union's disagreement with (1) the manner in which the Arbitrator conducted the hearing, and (2) the conclusions reached by the Arbitrator on the basis of the evidence and testimony presented to him. This disagreement does not establish that the award is deficient. See, for example, Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898, 901 (1990).
B. The Award Does Not Fail to Draw Its Essence From the Parties' Agreement
The Union asserts that the award conflicts with the parties' collective bargaining agreement. For the purposes of this decision, we construe this assertion as a contention that the award fails to draw its essence from the parties' collective bargaining agreement.
For an award to be found deficient because it fails to draw its essence from a collective bargaining 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 the 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).
Article 11(S) of the parties' agreement requires the Agency to "seek volunteers among qualified employees." Award at 2. The Arbitrator found that Article 11(S) could "reasonably be interpreted as requiring [the Agency