39:0768(66)AR - - Army, Fort Eustis, Virginia and NAGE - - 1991 FLRAdec AR - - v39 p768



[ v39 p768 ]
39:0768(66)AR
The decision of the Authority follows:


39 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

FORT EUSTIS, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-1975

DECISION

February 22, 1991

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 Theodore H. Ghiz. Three employees, who were under the same job description, filed grievances alleging that their job descriptions were inaccurate. The Arbitrator concluded that the grievance was moot.

The Union filed exceptions 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 exceptions.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

Three grievants filed grievances alleging that their job descriptions were inaccurate and that their jobs were incorrectly classified. The grievances were not resolved and were submitted to arbitration.

The Agency asserted that the grievances were not arbitrable and filed a motion to dismiss them. Prior to ruling on the motion, the Agency advised the Arbitrator that a "new job description had been approved and that the [g]rievants were currently working under the new description." Award at 2. Although the Union did not dispute the fact that the Agency issued a new job description to the grievants, the Union requested that the Arbitrator continue with the hearing because the "new job description was also inaccurate[.]" Id.

The Arbitrator stated that no grievances had been filed as to the new job description and determined that he lacked authority to consider either an oral grievance or one that had not proceeded through the normal steps of the parties' negotiated grievance procedure. The Arbitrator concluded that the revised job description rendered the arbitration of the grievances moot. Accordingly, the Arbitrator dismissed the grievances.

III. Position of the Parties

A. The Union

The Union contends that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator failed to address the issues in the grievances. The Union also argues that the award is deficient because it is based on a nonfact. The Union asserts that the grievances were not filed "with respect to a specific job description," but rather were filed over the agency's "refusal to provide an accurate job description" as required by Article 26, Section 2 of the parties' agreement. Memorandum in Support of Exceptions at 1-2.(*) Consequently, the Union asserts that the new job description did not render the grievances moot.

B. The Agency

The Agency contends that the Union has failed to demonstrate "how the award did not draw its essence from the agreement, or why the Authority should reverse a procedural determination by the [A]rbitrator." Opposition at 2. According to the Agency, "[a] question of whether or not a grievance is moot is a procedural matter[]" and disagreement with an arbitrator's procedural determinations do not provide a basis for finding an award deficient. Id. at 1.

IV. Analysis and Conclusions

We conclude that the Union has not established that the Arbitrator's award is deficient because it fails to draw its essence from the parties' agreement or is based on a nonfact.

To demonstrate that an award fails to draw its essence from an agreement, a party must show 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. U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 933 (1990).

The Union has not demonstrated that the award is deficient under any of these tests. It is clear that, based on his finding that the grievances were moot, the Arbitrator did not resolve the merits of the grievances before him. Nothing in the Arbitrator's finding that the grievances were moot represents an irrational or implausible interpretation of the parties' agreement, however. Accordingly, the Arbitrator's failure to resolve the grievances on the merits is not deficient as failing to draw its essence from the agreement.

Similarly, the Union has not demonstrated that the award is based on a nonfact. In order for an award to be found deficient on this basis, a party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Air Force, Air Logistics Center, McClellan Air Force Base, Sacramento, California and International Federation of Professional and Technical Engineers, Local 330, 37 FLRA 1071, 1075 (1990).

The Arbitrator determined that the grievances were moot because the grievants had been provided with new job descriptions. The Arbitrator noted, in this regard, that new grievances had not been filed and that, under the parties' agreement, he lacked authority to consider oral grievances. The Union has not identified any central fact underlying the Arbitrator's conclusion which is clearly erroneous. Accordingly, the Union has not demonstrated that the award is based on a nonfact.

Finally, the Union asserts that allowing the award to stand would frustrate resolution of the underlying grievances by enabling the Agency to engage in "bad faith tactics . . . ." Memorandum in Support of Exceptions at 3. The Union maintains that the Arbitrator erred in determining that the grievances were moot because the underlying grievances are "'capable of indefinite repetition and yet evading review.'" Id. (citing Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) and Roe v. Wade, 410 U.S. 113, 125 (1973)).

Although the Union does not make these assertions as a separate exception, it appears that the assertions constitute a contention that the award conflicts with law. Construing the assertions as such, we find that the Union has not demonstrated that the award is deficient on this basis.

As the Union points out, the courts have declined to dismiss certain cases as moot when the controversies involved in those cases are "capable of repetition, yet evading review." Roe v. Wade, 410 U.S. at 125 (citations omitted). The Union has not shown, however, that as a matter of law, the Arbitrator was obliged to resolve the grievances. As found previously, the Union has not shown that the Arbitrator's failure to address the merits of the grievances failed to draw its essence from the parties' agreement or was based on a nonfact. Moreover, the Union has not alleged or established that the Agency's issuance of the new position description involved in this case was improper under the parties' agreement or otherwise was in bad faith. Finally, the Union has not shown that the award improperly prevents the grievants from contesting the new position descriptions through the negotiated grievance procedure. The Union has not, therefore, demonstrated that the award conflicts with law.

The Union has not demonstrated that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, the exceptions will be denied. See Department of the Air Force, Civilian Personnel Branch, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 5 FLRA 40 (1981) (exceptions to award finding grievance moot did not demonstrate that award was deficient). In view of our decision, we find it unnecessary to determine whether, as asserted by the Agency, a finding of mootness constitutes a determination of the procedural arbitrability of a grievance. See generally O. Fairweather, Practice and Procedure in Labor Arbitration 121 (2d Ed