36:0091(11)AR - - Air Force, Griffiss AFB, NY and AFGE Local 2612 - - 1990 FLRAdec AR - - v36 p91
[ v36 p91 ]
The decision of the Authority follows:
36 FLRA No. 11
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
GRIFFISS AIR FORCE BASE, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
June 20, 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 Herbert Van Schaack. A grievance was filed alleging that the Agency violated an Agency regulation by improperly allocating parking spaces. The Arbitrator denied the grievance. In addition, the Arbitrator ruled that the Union was responsible for payment of one-half of the rental of a room for the arbitration hearing.
The Union filed exceptions to the award 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 Union's exceptions.
For the following reasons, we conclude that the Union has failed to demonstrate that the Arbitrator's award, or his ruling on the payment of rental expenses, is deficient under section 7122 of the Statute. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
In May 1989, the Union's office was moved from Building 303 to Building 101 at Griffiss Air Force Base. Parking spaces for Union officers and visitors to the Union office were located further away from Building 101 than they were located when the office was in Building 303. A grievance was filed and submitted to arbitration on the following issue:
Whether or not the reserved parking spaces allotted in the vicinity of Building 101 are in violation of Griffiss Air Force Base Regulation 125-14, paragraph 4-403(h) or Article 7, Section 3 or Article 28 of the Labor-Management Agreement? If so, what is the remedy?
Award at 1.(1)
The Arbitrator analyzed the issue in two parts. The first part, according to the Arbitrator, was whether the Agency had allotted reserved parking spaces in violation of Air Force Regulations and the parties' agreement. The Arbitrator stated that the "core" of the Union's argument concerning this issue was that, because the phrase "'assigned/controlled parking spaces'" in GAFBR 125-14 referred to "reserved parking spaces," the Agency had exceeded the 10 percent limitation on reserved spaces for executive parking. Id. at 4. The Arbitrator rejected the Union's interpretation of the regulation, however, and found that "'assigned/controlled parking spaces'" referred to "all parking spaces on the base." Id. at 5. As interpreted, the Arbitrator found "no evidence" that the Agency had exceeded the 10 percent limitation. Id.
The second part of the issue, according to the Arbitrator, was whether there had been an "unreasonable response by management to the request for reserved parking spaces for union personnel[.]" Id. The Arbitrator stated that, during negotiations for the parties' most recent agreement, the Union had proposed that the Agency provide two reserved parking spaces for its members. The Arbitrator stated further that the Union withdrew its proposal in return for an agreement that the Union's name would be placed on a building directory sign. The Arbitrator concluded that it was inappropriate for the Union to "attempt to obtain indirectly . . . what was not gained in negotiations[.]" Id. at 5-6.
Based on his resolutions of the two parts of the issue, the Arbitrator denied the grievance.
In addition, the Arbitrator noted the Union's assertion, contained in an addendum to its brief, that the Union was not responsible for any of the rental fee for the room in which the arbitration hearing was held. The Arbitrator found, however, that pursuant to Article 26, section 3, step 4c of the parties' agreement, the Union was responsible for one-half of the fee.(2) The Arbitrator noted that, although he had attempted to schedule the hearing on Griffiss Air Force Base, scheduling the hearing on the Base was not possible because the parties would not agree on hearing rooms. The Arbitrator stated that as a previous hearing had been held off the Base at the same location as the hearing was held in this case, the Arbitrator arranged to hold the hearing at this site. The Arbitrator stated further that "[i]n no way was this move made at the insistance [sic] of Management." Id. at 8 (emphasis in original). The Arbitrator concluded that the parties were required to "mutually share in the reimbursement of his payment ($34.63) for the hearing room." Id.
III. The Union's Exceptions
The Union excepts first to the Arbitrator's requirement that the Union pay for one-half of the rental fees for the room in which the arbitration hearing was held. The Union claims that the Arbitrator exceeded his authority in deciding this issue because the issue was not submitted to him by the parties. In addition, the Union claims that the Arbitrator's ruling is inconsistent with the parties' agreement.
On the merits of the Arbitrator's award, the Union argues that the Arbitrator exceeded his authority and violated the parties' agreement by separating his analysis of the issue submitted by the parties into two parts. The Union maintains that it did not raise the issue of parking for Union officials and did not request parking spaces for Union officials as part of the grievance before the Arbitrator. The Union asserts that the issue of reserved parking for Union officials is pending before the Federal Service Impasses Panel "as part of the Union's final proposal (Case No. 89 FSIP 214)."(3) Exceptions at 3.
The Union also claims that the issue submitted by the parties involved only GAFBR 125-14, not other Air Force regulations or the interpretation of those regulations at other Air Force Bases. According to the Union, it was not prepared to address regulations other than GAFBR 125-14 and was not "made aware that the Arbitrator was going to consider both regulations as the issue." Id. at 2. The Union claims that it was denied its right "to a fair and equal opportunity" to present its case before the Arbitrator. Id. at 3.
IV. Analysis and Conclusions
A. The Union Has Not Demonstrated that the Arbitrator's Requirement that the Union Pay For One-Half of Rental Expenses for the Hearing Room Is Deficient
The Union contends that the Arbitrator's ruling that the Union pay for one-half of the rental fees for the hearing room is deficient because (1) the issue of payment of the rental fees was not before the Arbitrator, and (2) the ruling conflicts with the parties' collective bargaining agreement. We will, for purposes of this decision, construe the first contention as an allegation that the Arbitrator exceeded his authority and the second contention as an allegation that the ruling fails to draw its essence from the parties' agreement.
An arbitration award will be found deficient on the basis that the arbitrator exceeded his or her authority when the arbitrator resolves an issue which was not submitted to arbitration. See, for example, U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 34 FLRA 342, 346 (1990) (U.S. Immigration and Naturalization Service). In this case, the Arbitrator did not decide an issue which was not submitted to him. Instead, as noted by the Arbitrator, the issue of payment of rental fees for the hearing room was raised by the Union in its brief to the Arbitrator. As the issue was raised by the Union, there is no basis on which to conclude that the Arbitrator exceeded his authority by resolving it. Compare General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128 (1990) (arbitrator did not have authority to reopen award to consider his fee allocation because that issue had been submitted to another arbitrator).
We conclude also that the Union has not demonstrated that the Arbitrator's ruling fails to draw its essence from the parties' agreement. In order for an award to be found deficient on this basis, 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 unconnnected 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).
The Union has not demonstrated that the Arbitrator's ruling is deficient under any of the tests set forth above. We note that the parties' agreement provides that arbitration hearings should be held on Griffiss Air Force Base facilities "[i]f possible[.]" Award at 7. The Arbitrator stated that it was "not possible" to schedule the hearing on the Base. Id. at 8. As it was not possible to schedule the hearing on the Base, and because a previous hearing had been held off the Base at the same location as this one, the Arbitrator scheduled, and paid the rental fees necessary to hold, the hearing at the disputed location. The parties' agreement requires the parties equally to share the "fees and expenses" of an arbitrator. Id. at 7. In view of these provisions, we are unable to conclude that the Arbitrator's ruling fails to draw its essence from the parties' agreement.
B. The Union Has Not Demonstrated that the Arbitrator's Award on the Merits of the Grievance Is Deficient
The Union contends that the Arbitrator's award on the merits of the grievance is deficient because the Arbitrator: (1) exceeded his authority both by analyzing in two parts the issue submitted to him and by considering an issue related to parking for Union officials and members; and (2) denied the Union a fair hearing by considering regulations other than GAFBR 125-14.
We conclude that the Union has not demonstrated that the Arbitrator exceeded his authority. The Arbitrator clearly resolved the issue submitted to him. The Arbitrator simply analyzed that issue by addressing the two sub-issues he found were involved therein. In this regard, the Arbitrator noted that both parties made assertions related to parking spaces for Union officials and members. See Award at 3, 4. Accordingly, the Arbitrator addressed those contentions. The Union's disagreement with the Arbitrator's analysis of and conclusions regarding the issue submitted to him does not provide a basis for finding the award deficient. See, for example, U.S. Immigration and Naturalization Service, 34 FLRA at 346.
We conclude also that the Union has not demonstrated that the Arbitrator denied the Union a fair hearing. The Arbitrator resolved the issue presented to him by, among other things, interpreting GAFBR 125-14. His interpretation of that regulation was based, in part, on testimony concerning interpretation of wording similar to GAFBR 125-14 at other Air Force Bases. Contrary to the Union's assertions, nothing in the Arbitrator's award supports the conclusion that the Arbitrator based the award on regulations other than GAFBR 125-14 or that the Arbitrator's consideration of testimony concerning the interpretation of similar regulations prejudiced the Union. In fact, as noted in the Arbitrator's award, the Union asserted that the Agency's actions violated both GAFBR 125-14 and another Air Force Regulation. See Award at 2. There is, therefore, no basis on which to conclude that the Arbitrator denied the Union a fair hearing. See, for example, U.S. Department of the Army, Pine Bluff Arsenal, Pine Bluff, Arkansas and American Federation of Government Employees, Local 953, 34 FLRA 293, 294-95 (1990).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Griffiss Air Force Base Regulation (GAFBR) 125-14, paragraph 4-403(h) provides:
Executive category parking shall be limited to 10% of the assigned/controlled parking spaces. Priority for assignment of remaining controlled parking spaces must be given to car pools, with special provisions for accommodating the physically handicapped.
Award at 1.
2. Article 26, section 3, step 4c provides, in pertinent part: "The fees and expenses of the arbitrator shall be borne equally by the Employer and the Union . . . . If possible, the arbitration hearing shall be held on base facilities during working hours." Award at 7.
3. Case No. 89 FSIP 214 was resolved by a Panel Decision and Order on January 24, 1990. Department of the Air Force, Griffiss Air Force Base, Griffiss Air Force Base, New York and Local 2612, American Federation of Government Employees, AFL-CIO, Panel Release No. 290. The issue in that case involved "a smoking policy within workplace buildings[,]" however, not reserved parking. Id., sl