36:0338(41)AR - - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 - - 1990 FLRAdec AR - - v36 p338
[ v36 p338 ]
The decision of the Authority follows:
36 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
GRIFFISS AIR FORCE BASE
ROME, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 18, 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 Peter A. Prosper 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 did not file an opposition to the Union's exceptions.
The Arbitrator ruled that the Agency violated a settlement agreement covering the assignment of office space to the Union. As a remedy, the Arbitrator reallocated the costs for space charged to the Union for the period in which the Union did not receive full use of the space to which it was entitled. For the following reasons, we deny the Union's exceptions that the award is contrary to the parties' collective bargaining agreement and the settlement agreement of a previous unfair labor practice charge and that the Union did not receive a fair hearing.
II. Background and Arbitrator's Award
The dispute in this matter arose when the Agency informed the Union that the Union would have to move from the office space which it occupied in Building 303 so that renovations might take place in that building. The Union protested the Agency's action and filed an unfair labor practice charge against the Agency. The charge was withdrawn when the parties signed a settlement agreement resolving the issue in March 1988.
In May 1989, the Agency offered the Union office space in Building 101. The Union offices were relocated to that building on May 26, 1989. The Union was given approximately 300 square feet of space including storage space in a hallway. The Union filed a grievance protesting assignment to Building 101. The grievance was submitted to arbitration on the following stipulated issue:
Did management violate Article 7, Section 2 of the Labor-Management Agreement or Section 2 of the 30 March 1988 settlement agreement when the union office was relocated from Building 303 to Building 101 on 26 May 1989?
If so, what shall the remedy be?
Award at 2.
The Union contended before the Arbitrator that: (1) the move was not necessary; (2) the new space in Building 101 was not equivalent to that in Building 303; (3) there was no agreement with management to accept the space in Building 101; and (4) the new space was not ready for occupancy, was not physically secure, and was located at a greater distance from the parking lot. The Agency contended that there was an agreement with the Union on May 9, 1989, for relocation to Building 101. The Agency also contended that the new space was equivalent to the old space.
The Arbitrator refused to rule on the question of whether there was an agreement on May 9, 1989, because that issue had been settled in the affirmative by Arbitrator Babiskin in another proceeding. The Arbitrator found that the Union failed to support its assertion that the Agency had not established a need for the move and he accepted the Agency's statement of necessity "as true and valid." Id. at 10. On the other hand, the Arbitrator found that the new space assigned to the Union was not equivalent in size to the space the Union had occupied in Building 303. Further, the Arbitrator found that the new space was not ready for occupancy because it lacked air conditioning and because of the open area in the hallway. The Arbitrator noted that both of those shortcomings were later corrected and that the space was now "substantially equivalent to the vacated offices in Building 303." Id. at 11. However, he determined that an adjustment in the amount of rental and utility fees charged the Union for office space was required for the time when the new space was not equivalent to the old. He made the following award:
The Activity violated Section 2 of the Settlement Agreement of March 30, 1988, when it relocated Union offices from Building 303 to Building 101 prior to the space being ready for occupancy, that is, the air conditioning was not working, and part of the allotted space was open hallway.
The Activity shall adjust utility fees to one-half the utility fee based on 300 square feet of space from June 1, 1989 through August 31, 1989. Additionally, the full utility fee is assessed from September 1, 1989 through January 31, 1990, based on 300 square feet of space. Full utility fees are assessed from February 1, 1990.
The Activity shall adjust rental fees to one-half the rental fee for the period of June 1, 1989 through January 31, 1990.
Id. at 13.
III. Union's Exceptions
The Union contends that the Arbitrator's award violates the parties' collective bargaining agreement and the settlement agreement of March 30, 1988. According to the Union, the Arbitrator ignored part 3 of the settlement agreement, which "clearly states 'future payments for rent and utilities shall be in accordance with the parties['] agreements.'" Exceptions at 1. The Union asserts that under the agreements, it is not required to make any payments for rent and utilities because the Agency violated and thereby negated the agreements. The Union contends that the Arbitrator improperly "modified and altered the contractual provisions of Article 9 Section 6 [of the collective bargaining agreement] by adjusting the rent payment fee and utility fee in his award[.]" Id. at 2.
The Union also asserts that it was denied a fair and impartial hearing. The Union states that, in his award, the Arbitrator noted that "[d]uring the course of the hearing a wall was constructed" and other modifications were made to the office area that made it ready for occupancy. Award at 10. According to the Union, "there was no testimony that a wall was built and proper modifications to the electrical and ventilation systems were completed during the course of the hearing." Exceptions at 2. The Union states that "[t]here was an off-the-record attempt by the Arbitrator to resolve the issue at which time the [Agency] informed the Arbitrator that a wall was built with a locking door in the hallway." Id. The Union claims that the Arbitrator improperly relied on information concerning the wall that was not part of the official record and that it "was not given an opportunity or notice that [it] needed to refute what was said off-the-record to prove that the hallway was still not ready for proper occupancy[.]" Id.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.
The Union claims that the Arbitrator's award is contrary to the parties' collective bargaining agreement and to the settlement agreement. Specifically, the Union contends that the Arbitrator disregarded Section 3 of the settlement agreement by reallocating the office space utilities and rent charged to the Union in a manner which was not provided for by the agreement. We construe the Union's exception as a claim that the award is deficient because the award fails to draw its essence from the parties' collective bargaining agreement or the settlement agreement. However, we find no merit in the exception.
In order to show that the award fails to draw its essence from the agreement, the Union must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator;" (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement based on claims that the arbitrator misinterpreted the agreement. Id. at 575-76. Consequently, we conclude that the Union's exception that the Arbitrator misinterpreted the parties' agreements constitutes nothing more than disagreement with the Arbitrator's interpretation of the collective bargaining agreement and the settlement agreement and does not state a ground on which the Authority will find an award deficient under section 7122(a) of the Statute. See U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1346, 35 FLRA 1180, 1186 (1990). In this regard, we note that, in reallocating the costs charged to the Union, the Arbitrator was exercising the wide latitude that arbitrators have in fashioning remedies. See Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga. and American Federation of Government Employees, Local 987, 25 FLRA 969, 971 (1987).
We also conclude that the Union has failed to show that it was denied a fair hearing. An arbitration award will be found deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990). However, an arbitrator has considerable latitude in the conduct of a hearing and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. Id.
The Union has not established that the Arbitrator denied it a fair hearing. In particular, the Union has not shown that it was prevented from offering any evidence or testimony concerning the lack of equivalency between its old space in Building 303 and the new space in Building 101. The question of equivalency was the underlying issue in the dispute being arbitrated. There is no showing that the Union was unaware of the building of the wall and the addition of a door with lock during the hearing. In fact, as the Arbitrator noted, the Union representative admitted at the hearing on November 29, 1989, that "[i]f management had put up the wall, we wouldn't be here." Award at 11. The Union representative's admission indicates that the Union was aware of the wall. Moreover, the Union has not shown that it attempted to offer, or was precluded from submitting, testimony concerning the effect of the wall and other modifications or that it was in any manner denied a fair hearing. See Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 468-69 (1981). We note the Arbitrator's statement that the arbitration hearings were held on 3 days between November 29, 1990, and January 9, 1990, "at which all parties were given full opportunity to submit data, memoranda and other documentary evidence, provide oral arguments and testimony, examine and cross-examine witnesses, and otherwise support their respective positions." Award at 2. Also, the parties were permitted to file post-hearing briefs. Id.
In our view, insofar as the Union contends that the award is improperly based on an off-the-record statement, such a claim has not been supported. The Union is merely disagreeing with the Arbitrator's findings of fact concerning the condition of the new office space in Building 101. Such an argument does not provide a basis for finding the award deficient. See American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1115 (199