36:0352(44)AR - - Commerce, NOAA, National Weather Service and National Weather Service Employees Organization - - 1990 FLRAdec AR - - v36 p352



[ v36 p352 ]
36:0352(44)AR
The decision of the Authority follows:


36 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF COMMERCE

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

NATIONAL WEATHER SERVICE

(Agency)

and

NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION

(Union)

0-AR-1725

DECISION

July 19, 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 Edwin R. Render filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

The grievance challenged the implementation of the Agency's program for training meteorologists in its Western Region. The Arbitrator denied the grievance. However, the Arbitrator granted the Union's request that the Union's witnesses be given official time for the time spent at the arbitration hearing and the time spent traveling to and from the hearing. The Agency excepts only to the Arbitrator's award of official time for the time that the Union's witnesses spent traveling to and from the hearing.

For the reasons discussed below, we conclude that the Agency has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievance concerned the implementation of the Agency's program for training meteorologists, entitled "Forecaster Development Program." Award at 4. The dispute arose because several interns in the program were assigned to perform work that normally is performed by journeymen meteorologists. The Union filed a grievance stating that: "This type of scheduling of interns leads to increased work loads to the Lead Forecaster, jeopardizes public safety, compromises [National Weather Service] programs and, perhaps more importantly, leads to implies [sic] an unfair advantage (ie discrimination) when competing for a Forecaster Development position." Id. at 8. The Union contended that the assignments violated the provisions of the Forecaster Development Program.

The parties were unable to resolve their dispute and the matter was submitted to arbitration. Each party submitted several issues to the Arbitrator. The issues submitted by the Agency included, among others, whether the matter of official time for the travel of employees who were Union witnesses is arbitrable because the issue was not raised by either party and whether an employee who is a Union witness is entitled to official time under the parties' negotiated agreement. According to the Agency, the issue of the Agency's denial of official time for travel for Union witnesses was raised only a few days before the arbitration hearing. The Agency acknowledged that, under section 7131(d) of the Statute, it would be permissible for the Union and the Agency to negotiate a provision granting official time for travel for Union witnesses, but contended that "there is no provision in this contract granting official time for travel for union witnesses . . . [and] it would be improper for the Arbitrator to grant such an order in this case." Award at 19.

The Union also submitted to the Arbitrator the issue of whether the Agency violated the parties' collective bargaining agreement by denying official time for the travel of Union witnesses to attend the arbitration hearing. The Union contended that the Agency violated Article 10, section 4 of the parties' agreement by not granting the Union's witnesses official time to attend the arbitration hearing. The Union stated that the intent of Article 10, section 4 "was that [employees'] schedules were to be adjusted so that [official] time could be arranged for travel to and from as well as during the hearing." Award at 25. The Union argued that the Agency violated that provision when it refused to adjust the employees' schedules and allow the employees official time to travel to and from and attend the arbitration hearing.

The Arbitrator found that under Article 9 of that agreement, "the union and the employer may only file grievances 'over the interpretation or application of [the parties' collective bargaining] agreement.'" Award at 28-29. The Arbitrator characterized the grievance before him as a Union grievance and stated that "the Arbitrator must limit his analysis of the [U]nion's grievance to the question of whether the [U]nion has established a violation of some provision of the collective bargaining agreement." Id. at 29. The Arbitrator found that the grievance concerning the implementation of the Forecaster Development Program "is not about the interpretation or application of the contract between the employer and the [U]nion, therefore, it must be denied." Id. at 30.

Regarding the Union's request for official time for its witnesses, the Arbitrator held that the Union's witnesses should have been given official time for the time spent traveling to and from the arbitration hearing as well as the time spent attending the hearing. The Arbitrator found that the employees requested that their work schedules be modified so they could travel to the hearing and not miss work, but the Agency denied the requests without explanation. The Arbitrator stated that the Agency provided no reason for him to believe that the Agency could not have rearranged the employees' work schedules as requested. The Arbitrator found that Article 10, section 4 of the parties' agreement "clearly provides for official time when the employee is actually testifying or waiting to testify at a hearing." Id. at 31.

As his award, the Arbitrator denied the grievance concerning the implementation of the Forecaster Development Program and ordered the Agency to "place its employees who testified for the [U]nion on official time for the number of hours that these witnesses consumed in driving to and from the hearing and testifying if the employees make such a request." Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency's exceptions concern only the Arbitrator's grant of official time for the Union's witnesses to travel to and from the hearing. The Agency contends that the award is contrary to law and, therefore, deficient under section 7122(a)(1) of the Statute, because it requires pay for travel in contravention of the Federal Employees Pay Act (FEPA) and the Fair Labor Standards Act (FLSA). The Agency maintains that, under those statutes, "overtime cannot be paid for even legitimate labor-management relations activities if they are performed outside of an employee's regular duty status." Exceptions at 5. The Agency argues that the Arbitrator's award of official time for travel by Union witnesses is deficient because the Arbitrator granted official time for travel by Federal employees on nonduty time which is not compensable.

The Agency also contends that the Arbitrator's award is inconsistent with the Agency's right under section 7106(a) of the Statute to direct employees and its right to schedule employee travel in accordance with 5 U.S.C. § 6101(b)(2). The Agency states that it has the authority to require employees to travel during nonduty time. The Agency argues that requiring the Agency to pay employees for travel time that is outside of the employees' regular duty hours "directly interfere[s] with the exercise of management's right by penalizing the exercise of the right." Id. at 10. The Agency contends that the Arbitrator's award is contrary to section 7131(d) of the Statute because "the amount of time requested was neither reasonable, nor in the public interest." Id. at 10-11. The Agency asserts that the Union chose to have its witnesses drive to the arbitration hearing and argues that the time expended by driving was excessive because it was not the most efficient means of transportation.

The Agency contends that the Arbitrator's award is deficient on several of the grounds applied in private sector labor-management relations cases. The Agency argues that the Arbitrator exceeded his authority by "ruling concerning official time for travel by Union witnesses after the [A]rbitrator found that the terms of Article 9 of the negotiated agreement precluded a Union grievance over the basic issue before him." Id. at 11. The Agency also maintains that the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration. The Agency states that "the Union's demand for travel time for Union witnesses arose after the conclusion of the grievance procedure, albeit before the conclusion of the arbitration." Id. at 12. The Agency argues that because it opposed the Union's attempt to incorporate the travel time issue into the arbitration proceeding, the Arbitrator should have separated that issue from the proceeding.

The Agency also contends that the Arbitrator's award is deficient because the Arbitrator relied on a mistake of fact. The Agency states that "the [A]rbitrator's decision that the Agency should pay the travel time appears to have been predicated on his belief that the Agency denied the witnesses' requests for modification in their working schedules in order that they could travel to the hearing and not miss work." Id. at 14. The Agency states that "there is no evidence in the record that any employee was required to use LWOP [leave without pay]. In fact[,] there was no requirement that any employee use LWOP. The [A]rbitrator is plainly mistaken." Id.

Further, the Agency contends that the Arbitrator denied the Agency a fair hearing by making a finding that was based upon representations in the Union's post-hearing brief rather than upon documentary or testimonial evidence. The Agency argues that by promulgating an award based on evidence which was presented solely in the Union's post-hearing brief, the Arbitrator deprived the Agency of an opportunity for cross-examination or rebuttal evidence. Id. at 16. The Agency argues that the Arbitrator's findings of fact were improper because there was no record evidence to support his findings.

Finally, the Agency contends that by awarding official time for travel during nonduty hours, the award fails to draw its essence from the parties' collective bargaining agreement. The Agency states that "without making reference to any portion of the agreement pertaining to travel time, the Arbitrator lumped together time at the hearing with time for traveling to the hearing and ordered the Agency to pay both. . . . It is clear from the Arbitrator's utter confusion that his award does not draw its essence from the agreement." Id. at 18.

B. Union's Opposition

The Union asserts that the Agency's exceptions are frivolous. The Union contends that the issue of official time was raised before the Arbitrator and that the Arbitrator's denial of the grievance concerning the implementation of the Forecaster Development Program did not preclude the Arbitrator from granting the Union's request for official time for the Union's witnesses. In the Union's view, the Arbitrator correctly determined, based on the parties' agreement and the testimony at the hearing, that an award of official time for Union witnesses was warranted. The Union contends that the amount of official time awarded by the Arbitrator was necessary and reasonable. The Union argues that the amount of time taken by the witnesses to drive to the hearing was the result of the Agency's actions at "the last moments which hampered the [Union] in arranging travel" by other modes for the Union's witnesses. Opposition at 1.

IV. Analysis

A. The Arbitrator's Award of Official Time Is Not Inconsistent With the FLSA and the FEPA

The Arbitrator awarded official time for the time that the Union's witnesses spent traveling to and from the arbitration hearing. In particular, the Arbitrator ordered the Agency to "retroactively adjust the work schedules of the employees who were required to travel to the hearing on [a leave without pay] basis" and "give all [U]nion witnesses who request some official time for travel to and from the hearing as well as the time spent at the hearing." Id. at 28, 31.

The Agency asserts that because the travel time for which the Arbitrator awarded official time was outside of the employees' regular duty hours, the Arbitrator awarded the Union's witnesses overtime for the time spent traveling to and from the arbitration hearing. The Agency states that "time spent in travel, which is in addition to an employee's regularly scheduled administrative work week is either compensable as overtime or not compensable at all." Exceptions at 6. The Agency argues that the award is inconsistent with the FLSA and the FEPA because under those statutes "overtime cannot be paid for even legitimate labor-management relations activities if they are performed outside of an employee's regular duty status." Id. at 5.

The Arbitrator found that Article 10, section 4 of the parties' collective bargaining agreement "fairly clearly provides for official time" for employees who are participating in an arbitration hearing. Id. at 31. The Arbitrator also found that the Agency denied the Union's request for an adjustment in the employees' work schedules without explanation. Thus, the Union's witnesses were forced to attend the arbitration hearing on a leave without pay basis or on their off-duty time. The Arbitrator stated that the Agency provided no reason for believing that it could not have "rearranged the schedules of these employees so that they could travel to the hearing without missing work." Id. at 31. Because the Agency "did not offer any explanation . . . for its refusal to modify these employees' work schedules[,]" the Arbitrator found that there was no basis for concluding that they were not entitled to travel to and from the hearing on official time. Id.

As the Agency acknowledged before the Arbitrator, section 7131(d) of the Statute authorizes a union and an agency to negotiate a provision granting official time for the time that employees who are union witnesses spend traveling to and from an arbitration hearing. Section 7131(d) does not require an employee to be in a duty status to be entitled to official time. U.S. Department of Justice, Bureau of Federal Prisons, Federal Correctional Institution, Seagoville, Texas and American Federation of Government Employees, Council of Prison Locals, Local No. 1637, 22 FLRA 56, 59 (1986) (Federal Correctional Institution, Seagoville, Texas). Employees are not entitled to overtime pay or compensatory time off for time spent attending an arbitration hearing as union witnesses, however, because that activity is not the performance of work officially ordered or approved so as to constitute overtime work under the Federal Employees Pay Act of 1945, 5 U.S.C. § 5542(a). American Federation of Government Employees and Social Security Administration, 21 FLRA 69 (1986). Additionally, time spent by a union representative on nonduty time, outside of regular work hours, representing an employee at a grievance meeting is not hours of work under the Fair Labor Standards Act which would entitle the employees to overtime pay or compensatory time off under the FLSA. Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local No. 1138, 23 FLRA 390 (1986). Therefore, the performance of representational (labor-management relations) activities on nonduty time (outside regular working hours) is not overtime work. Federal Correctional Institution, Seagoville, Texas, 22 FLRA at 59.

However, where official time, authorized by provisions of a collective bargaining agreement consistent with section 7131(d) of the Statute, is wrongfully denied and the covered activities are thereafter performed on nonduty time, section 7131(d) entitles the aggrieved employee to be paid for the amount of time that should have been official time. Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing, 23 FLRA at 393; Federal Correctional Institution, Seagoville, Texas, 22 FLRA at 58. The Authority has found that when an arbitrator finds a violation of the official time provisions of a collective bargaining agreement and awards official time to a grievant for the period that the grievant performed labor-management relations activity on his own time during nonduty hours, that award does not constitute a grant of overtime compensation which is inconsistent with law. Id. at 59. An award of official time under those circumstances only entitles the employee to compensation at the appropriate straight-time rates. Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing, 23 FLRA at 394 (compensation at straight-time rates is appropriate because the performance of labor-management relations activities even on official time does not constitute overtime work).

In this case, the Arbitrator found, based on his interpretation of Article 10, section 4 of the parties' agreement and the Agency's failure to explain its refusal to modify the Union witnesses' work schedules, that the Union's witnesses were wrongfully denied official time. He ordered the Agency to correct its wrongful action by giving the Union's witnesses official time for the time they spent traveling to and from the arbitration hearing. As we stated above, an award of official time under these circumstances does not constitute a grant of overtime compensation. Instead, the Arbitrator's award is consistent with the Authority's decisions which hold that if an agency wrongfully denies a request for official time and the covered activities are thereafter performed on nonduty time, section 7131(d) entitles the aggrieved employee to be paid for the amount of time that should have been official time. Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing, 23 FLRA at 393.

The Agency has not established that the Arbitrator's award of official time for the time that the Union's witnesses traveled to and from the arbitration on leave without pay and on nonduty time constitutes an award of overtime. Accordingly, we reject the Agency's contention that the Arbitrator's award is inconsistent with the FLSA and FEPA.

B. The Award Is Not Inconsistent With the Agency's Rights Under Section 7106(a)(2)(A) and (B) of the Statute

The Agency contends that the Arbitrator's award is inconsistent with section 7106 of the Statute because it interferes with the Agency's rights to direct employees and to schedule employees to travel on nonduty time in accordance with 5 U.S.C. § 6101(b)(2). Exceptions at 9-10. The Agency cites the Authority's decision in Department of the Navy, Supervisor of Shipbuilding Conversion and Repair, Boston, Massachusetts and International Federation of Professional and Technical Engineers, Local 15, AFL-CIO, 33 FLRA 187 (1988) (Supervisor of Shipbuilding Conversion and Repair), in support of its contention that management has the right to schedule employee travel outside the regular workweek.

The Arbitrator found that the employees had been wrongfully denied official time under the parties' collective bargaining agreement. He awarded official time for the time that wrongfully was denied. The Arbitrator's award of official time does not in any way affect the Agency's right to direct employees--that is, supervise and guide employees in the performance of their duties on the job. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 26 FLRA 12, 14 (1987).

The Agency's reliance on Supervisor of Shipbuilding Conversion and Repair is misplaced. In that case, the Authority stated that a requirement that employee travel be scheduled during an employee's duty hours directly interfered with management's rights to assign work because it prevented management from requiring an employee to work a full day and to travel on nonduty time. The Authority held that a provision that required employee travel to be scheduled during an employee's workweek even if it is not practicable to do so, directly interfered with management's right under section 7106(a)(2)(B) of the Statute. Id. at 191.

The Authority distinguished the provision in Supervisor of Shipbuilding Conversion and Repair from Provision 2 in American Federation of Government Employees, Local 1799, AFL-CIO and U.S. Army, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 26 FLRA 926, 929-30 (1987) (Aberdeen), which it had found to be negotiable. Because Provision 2 in Aberdeen only required that travel normally will be arranged within the employee's scheduled hours of work, when practicable, it did not remove management's exercise of discretion when assigning work and, therefore, did not violate the right to assign work.

The award in this case, unlike the provision in Supervisor of Shipbuilding Conversion and Repair, does not directly interfere with the Agency's exercise of its right to schedule employees for travel or to assign work. The award is not a "flat prohibition of travel outside regular hours and days of work." See Aberdeen, 26 FLRA at 930. Rather, the award concerns whether, under the terms of the parties' agreement, the Agency wrongfully denied the Union's witnesses official time to engage in activities for which official time is authorized under section 7131(d) of the Statute and under the parties' agreement. Moreover, the Agency has not shown that it was impracticable to schedule travel during the employees' hours of work. In fact, the Arbitrator found that the Agency provided no reason for its refusal to rearrange the schedule of these employees so they could travel to the hearing during their hours of work. Award at 31.

Further, an arbitrator's award enforcing the official time provisions of a collective bargaining agreement negotiated pursuant to section 7131(d) is not inherently deficient because the award affects management's right to assign work. In section 7131(d), Congress provided that agencies and labor organizations should jointly determine through negotiations the amount of official time to be available to employees that is reasonable, necessary, and in the public interest. See Military Entrance Processing Station, Los Angeles, California and American Federation of Government Employees, Local 2866, AFL-CIO, 25 FLRA 685, 688 (1987). "[S]ection 7131(d) 'carves exceptions' to management's right to assign work under section 7106(a)(2)(B); otherwise that right 'would preclude any negotiation of official time provisions, since official time always affects an agency's ability to assign work.'" American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1133 (1988), citing American Federation of Government Employees, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1531 n.8.

The Agency also contends that the Arbitrator's award violates management's rights under section 7106(a)(2)(B) and cites Supervisor of Shipbuilding Conversion and Repair in support of that contention. Exceptions at 9. We construe this contention as an argument that the award is deficient because it violates management's rights to assign work. We find that the Agency's contention provides no basis for finding the award deficient. Because the official time provisions negotiated between the parties carve exceptions to management's right to assign work which are permitted under the Statute, the Arbitrator's award enforcing those provisions is not deficient on the basis that it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute.

C. The Award Is Not Contrary to Section 7131(d) of the Statute

The Agency contends that the Arbitrator's instruction to pay employees for the time consumed in driving to and from the arbitration hearing is inconsistent with section 7131(d) of the Statute. The Agency argues that "the time expended by driving was excessive because it was not the most efficient means of transportation. Therefore, the amount requested was neither reasonable, nor in the public interest." Exceptions at 10.

The Statute does not define the terms "reasonable and necessary" as used in section 7131(d). However, "Congress has provided that the agency and the union together should determine the amount of official time 'reasonable, necessary, and in the public interest.'" American Federation of Government Employees, Council of Locals No. 214 v. FLRA, 798 F.2d at 1530 (emphasis deleted).

The Arbitrator interpreted the parties' agreement to require official time for time spent by the Union's witnesses traveling to and from the arbitration hearing. The Agency has not demonstrated that, as interpreted, the parties' agreement is inconsistent with section 7131(d) and, therefore, unenforceable. Therefore, the Agency's exception provides no basis for finding the award deficient.

D. The Award Is Not Deficient on Any of the Grounds Applied By the Federal Courts in Private Sector Labor Relations Cases

1. The Arbitrator Did Not Exceed His Authority

The Agency contends that the Arbitrator exceeded his authority by deciding the official time issue. The Agency asserts that the issue concerning official time was not submitted to arbitration and that the Arbitrator could not rule on the official time issue after ruling against the Union on the issue concerning the implementation of the Forecaster Development Program.

An arbitrator's award will be found deficient as in excess of the Arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration. Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986). However, when the parties cannot agree on a statement of the issue, an arbitrator does not exceed his authority when he formulates and decides the issue himself. Id. at 518-19. See also U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 34 FLRA 342 (1990).

The parties in this case were unable to agree on the issue. Each party submitted their views of the issues to the Arbitrator and the Arbitrator framed the issues before him. See Award at 12-28. One of the issues submitted by the Union was "[d]id the National Weather Service violate Articles 10 and 19 by denying official or 'company' time for travel of union witnesses to attend the arbitration?" Id. at 11 and 25. As noted above, the Agency also submitted issues relating to the matter of official time for the travel of Union witnesses.

In the absence of a stipulated issue, the Arbitrator was free to formulate the issues and extend his award to matters that necessarily arise from his formulation of the issues. The Agency's contention that the Arbitrator exceeded his authority by considering the official time issue constitutes nothing more than disagreement with the Arbitrator's formulation of the issues and provides no basis for finding the award deficient. U.S. Immigration and Naturalization Service, 34 FLRA at 346.

2. The Arbitrator's Award Is Not Based on a Nonfact

The Agency states that the Arbitrator's award is based on a belief that the Agency: (1) denied the Union's request for modifications in the employees' work schedules so that they could travel to the hearing and not miss work, and (2) required employees to travel to the hearing on a leave without pay basis. The Agency asserts that "a Union witness worked a full shift before traveling to the hearing. Thus, it is clear that the witness did not miss work" and that "there is no evidence in the record that any employee was required to use [leave without pay]." Exceptions at 14. The Agency contends that "it is apparent that the [A]rbitrator relied on a mistake of fact." Id. at 15. We interpret the Agency's argument as an allegation that the award is based on a nonfact.

When a party contends that an arbitrator's award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 34 FLRA 630 (1990).

The Agency's exception fails to establish that the central fact underlying the Arbitrator's award is clearly erroneous, but for which a different result would have been reached. The Arbitrator found that the Agency wrongfully denied the Union's request for official time under the terms of the parties' agreement and that as a result of that improper action, the Union's witnesses traveled to and from the arbitration hearing on their own time. The Agency's assertions that "a Union witness worked a full shift before traveling to the hearing," and that no employee was "required" to travel to the hearing on leave without pay, even if true, are irrelevant to the Arbitrator's conclusion that the Agency wrongfully denied the Union's request for official time under the terms of the parties' agreement. The Agency's contention constitutes mere disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and does not establish that the award is deficient. See, for example, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, AFL-CIO, Local 916, 34 FLRA 595 (1990).

3. The Agency Was Not Denied a Fair Hearing

The Agency contends that the Arbitrator deprived the Agency of a fair hearing by making a factual finding that was based upon statements in the Union's post-hearing brief. The Agency argues that by promulgating an award based on evidence which is presented solely by one party in a post-hearing brief, the Arbitrator deprived the Agency of an opportunity for cross-examination or rebuttal evidence.

The Agency fails to identify the specific facts or findings of the Arbitrator which, allegedly, are not based on the record evidence. The Agency merely states that "the Arbitrator did not really know what happened regarding travel time because he was not presented with any evidence relating to travel or work schedules of the Union's witnesses." Exceptions at 15 (emphasis in original). We conclude that the Agency's contentions constitute mere disagreement with the Arbitrator's conclusion that the Agency wrongfully denied the Union's request for official time and his evaluation of the evidence. Disagreement with the Arbitrator's conclusion and his evaluation of the evidence does not establish that the Arbitrator's award is deficient. See American Federation of Government Employees, Local 2610 and Veterans Administration, Medical and Regional Office Center, Togus, Maine, 30 FLRA 1153 (1988) (union's claim that arbitrator failed to conduct a fair hearing because, among other things, he accepted post-hearing evidence and admitted and considered certain evidence and testimony submitted by management constitutes disagreement with arbitrator's findings of facts and evaluation of the evidence).

4. The Agency Has Not Established that the Award Does Not Draw Its Essence from the Parties' Agreement

The Agency contends that the award of official time is deficient because it fails to draw its essence from the parties' agreement. The Agency states that the Arbitrator "made no finding that there was a contractual provision entitling the Union witnesses to official time for travel. Instead, he refers to the provision in Article 10, Section 4, which is not in dispute." Exceptions at 16. The Agency asserts that Article 10, section 4 provides official time only for the time spent at an arbitration hearing and does not authorize official time for traveling to an arbitration hearing. The Agency states that "[i]t is clear from the Arbitrator's utter confusion that his award does not draw its essence from the agreement." Id. at 18.

The Agency's exception fails to establish that the Arbitrator's award does not draw its essence from the parties' agreement. In order to establish that an award is deficient on the basis that it does not 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. U.S. Department of Veterans Affairs, Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 166 (1990).

The Arbitrator interpreted Article 10, section 4 of the parties' agreement as providing for official time for employees to attend and testify at an arbitration hearing. The Arbitrator found that the Union, consistent with the procedures established in the parties' agreement, requested an adjustment in the work schedules of the employees who were to testify for the Union at the arbitration hearing so the employees could attend and testify at the arbitration hearing on official time. As noted above, we construe the Arbitrator's award as concluding that the Agency violated the agreement when it denied the Union's request for official time for its witnesses. Award at 30-31. Therefore, the Arbitrator's award was based on contractual provisions.

We find that the Agen