39:0889(77)AR - - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 - - 1991 FLRAdec AR - - v39 p889



[ v39 p889 ]
39:0889(77)AR
The decision of the Authority follows:


39 FLRA No. 77

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

GRIFFISS AIR FORCE BASE

ROME, NEW YORK

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2612

(Union)

0-AR-1844

DECISION

February 28, 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 William A. Babiskin. The Arbitrator found that the Union had violated the parties' collective bargaining agreement when it failed to honor agreements made by its duly authorized agents, and the Arbitrator sustained the Agency's grievance.

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.

We conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency filed a grievance claiming that the Union violated the parties' collective bargaining agreement with respect to the implementation of certain changes concerning conditions of employment. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Did the Union fail to recognize and honor agreements made by its duly authorized agents in the following actions:

a. ULP Case No. 1-CA-90242 Compressed Work Schedule;

b. ULP Case No. 1-CA-90329 485th Drafting;

c. ULP Case No. 1-CA-90283 - Union Office Relocation[;]

d. ULP Case No. 1-CA-90295 - Management Grievance Remedy[;]

e. Union Grievance dated 18 August 1989, clarified in Union Letter dated 6 September 1989;

f. 10 May 1989 Negotiation Session-Union Office Relocation[.]

If so, what amount of monetary damages and other corrective actions are appropriate?

Arbitrator's Award at 1.

Before the Arbitrator, the Agency argued that the Union had agreed to: (1) changed work schedules; (2) the proposed relocation of the Union's office; (3) moving a designated smoking area; and (4) the reorganization of the drafting section. The Agency maintained that, instead of honoring its agreements, the Union repudiated them and filed grievances and unfair labor practice charges challenging the agreed-on changes. The Agency contended that the Union had acted in bad faith in violation of the parties' collective bargaining agreement. The Union argued that it may not be compelled to "recognize and comply with agreements the Union does not feel it has made with Management." Id. at 4 (quoting Union's brief). The Union also maintained that it has the right to challenge management actions by filing grievances and unfair labor practice charges.

The Arbitrator noted that the changes in work schedules, the movement of the designated smoking area, and the reorganization of the drafting section occurred while Union President Joseph Sallustio was on extended sick leave. During this period, Chief Steward Thomas Merrick had full authority to act for the Union. The Arbitrator concluded that although the Union now claimed that it did not agree to these changes, the credible evidence established otherwise.

Based on the testimony presented, the Arbitrator found that Chief Steward Merrick "agreed to the changes sought by Management." Id. at 7 (footnote omitted). The Arbitrator specifically found that Merrick had told management officials that he had "no problem" with the work schedule changes or the reorganization of the drafting section. Id. at 7 n.2. The Arbitrator also specifically found that "Merrick agreed to the relocation of the smoking area." Id. The Arbitrator stated that although Sallustio did not approve of the actions Merrick took, any such disagreement was an internal union matter to be resolved between them. The Arbitrator ruled that the Agency "had every right to rely on Merrick's 'consent' before it implemented the changes." Id.

With respect to the relocation of the Union's office, the Arbitrator found that the testimony established that Sallustio agreed to the conditions proposed by management at a bargaining session on May 9, 1989. The Arbitrator specifically found that Sallustio agreed to drop his demand for parking spaces in exchange for the Union being listed on the building directory. The Arbitrator also found that the next day Sallustio informed management that there would be no agreement without reserved parking spaces and thereafter reverted to his original demand for relocation to another building. In making these findings, the Arbitrator acknowledged that Sallustio had insisted that the arbitration hearing be held on a Tuesday and that the Arbitrator had accommodated the request. The Arbitrator noted that for an unknown reason, Sallustio did not attend the arbitration hearing and that the Arbitrator had credited the testimony of the management negotiator concerning the May 9 bargaining session.

The Arbitrator stated that under Article 8(1)(f) of the parties' collective bargaining agreement, the Union has an obligation to "demonstrate a responsible attitude in conducting its business with management." Id. at 5 (quoting the parties' collective bargaining agreement). With respect to the work schedule changes and the reorganization of the drafting section, the Arbitrator found that the Union's actions in filing unfair labor practice charges improperly sought to evade and avoid its commitments in clear violation of Article 8 of the parties' agreement. With respect to the relocation of the smoking area, the Arbitrator found that by its actions in filing the grievance dated August 18, 1989, the Union likewise sought to evade its commitments in violation of Article 8. The Arbitrator also found that the Union violated Article 8 with respect to the relocation of the Union's offices by reneging on its May 9 agreement and that the Union's actions breached an earlier settlement agreement of the parties concerning the office relocation.

The Arbitrator further found that the Agency has a contractual right under the collective bargaining agreement to file grievances. Consequently, the Arbitrator concluded that the Union also violated Article 8 of the agreement by filing an unfair labor practice charge challenging the Agency's right to file the grievance in this case. The Arbitrator determined that the Union may not use the processes of the Authority to prevent management from exercising its rights under the collective bargaining agreement.

In finding violations of the parties' collective bargaining agreement, the Arbitrator emphasized that nothing in his opinion or award should be construed as holding that the mere filing of grievances or unfair labor practice charges constitutes a violation of the parties' collective bargaining agreement. He stated that he was holding "only on the facts of this case that the Union's action [sic] were improper--acts of harassment for the sake of harassment." Id. at 10 n.3.

As a remedy, the Arbitrator directed that the Union honor its commitments and cease and desist from such other and further violations of the agreement. The Arbitrator concluded that monetary damages were not warranted. However, the Arbitrator placed the Union on notice that, if this pattern of conduct continues, it is likely that another arbitrator would award the Agency fees and damages.

III. First Exception

The Union contends that the award is "contrary to the facts." Exceptions at 3. The Union maintains that the Arbitrator based his award on the existence of agreements with respect to the changes in work schedules and the reorganization of the drafting section. The Union argues, however, that there was never any bargaining on those matters and, consequently, there could have been no agreements. The Union asserts that the fact that there was no bargaining and no agreements is confirmed by decisions of a regional director of the Authority in 1-CA-90242 and 1-CA-90329 and the Assistant General Counsel for Appeals in 1-CA-90242.

We conclude that the Union fails to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

The Union has misconstrued the award. The Arbitrator did not use the term "agreement" in his award to mean a collective bargaining agreement. As his award clearly indicates, he used the term "agreement" to mean that Chief Steward Merrick had consented to the changes as announced by management and that management had every right to rely on that consent in implementing the changes. Furthermore, the Union's reliance on decisions of a regional director and the Assistant General Counsel for Appeals fails to establish that the award is deficient. Clearly, the Authority, as an adjudicatory body, is not bound by prosecutorial decisions made in the processing of cases not before us. Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA No. 54 (1991). Consequently, in our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and provides no basis for finding the award deficient. See 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) (McClellan AFB).

Moreover, even if we construe the Union's allegations as a contention that the award is based on a nonfact, no basis is provided for finding the award deficient. In order for an award to be found deficient because it is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. McClellan AFB, 37 FLRA at 1075. In this case, the Union fails to demonstrate that the Arbitrator's factual findings are clearly erroneous and no basis is provided for finding the award deficient because it is based on a nonfact. See id.

Accordingly, we will deny this exception.

IV. Second Exception

The Union contends that the Arbitrator erred by finding a violation of the agreement with respect to the Union's actions concerning the relocation of the Union's office. The Union argues that the Arbitrator improperly drew a negative inference from the failure of Union President Sallustio to attend the arbitration hearing and improperly credited the testimony of the management negotiator over the testimony of a Union negotiator. The Union also argues that the Arbitrator did not consider all of the facts concerning the agreement reached at the May 9 bargaining session and that there was more to the agreement than found by the Arbitrator. The Union further argues that any attempt by the Arbitrator to say that the Union was not permitted to file the grievance dated August 18, 1989, is contrary to law and the parties' collective bargaining agreement.

We conclude that the Union fails to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

In our view, the Union's assertions that the Arbitrator improperly drew a negative inference and improperly credited the testimony of management's negotiator constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony including his determinations as to the credibility of witnesses and the weight to be given their testimony. Such assertions provide no basis for finding an award deficient. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 1300, 1302 (1990).

In our view, the Union's assertions that the Arbitrator failed to consider all the facts concerning the agreement reached at the May 9 bargaining session and that there was more to the agreement than found by the Arbitrator constitute nothing more than disagreement with the Arbitrator's findings of fact and provide no basis for finding the award deficient. See, for example, McClellan AFB, 37 FLRA at 1075.

We also find that the Union fails to establish that the Arbitrator's determination that the filing of the August 18 grievance violated Article 8 of the parties' collective bargaining agreement is deficient because the determination is contrary to the collective bargaining agreement or contrary to law.

We construe the Union's assertion that the Arbitrator's determination is contrary to the agreement to be an assertion that the award fails to draw its essence from the parties' collective bargaining agreement. In order to establish that an award is deficient because it does not draw its essence from the agreement, the appealing party must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (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; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, Planners-Estimat