41:0048(5)AR - - AFGE Local 51 and US Mint, Treasury - - 1991 FLRAdec AR - - v41 p48
[ v41 p48 ]
The decision of the Authority follows:
41 FLRA No. 5
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Alan R. Rothstein 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 Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement and applicable regulations by denying bargaining unit employees administrative leave for October 19 and 20, 1989. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
An earthquake occurred on October 17, 1989, in San Francisco. Agency buildings were closed on October 18, to determine whether there was any structural damage and all employees were placed on administrative leave.
On October 19, the Agency determined that its buildings were safe for occupancy and concluded that the employees could return to work. The Agency declared October 19 and 20, regular work days and decided to grant administrative leave to those employees who met the following criteria:
1. an employee who had damage to their living structure, or
2. an employee who was genuinely confused about whether he or she was supposed to be at work.
Award at 4. Employees who did not meet these criteria were allowed to use annual or sick leave.
A grievance was filed alleging that the Agency treated bargaining unit employees disparately by the procedure it followed to grant and deny administrative leave for October 19 and 20. When the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:
Did the agency violate the negotiated agreement or applicable laws or regulations by denying bargaining unit employees administrative leave for October 19-20, 1989. If so, what is an appropriate remedy?
Id. at 2.
The Arbitrator found that the Agency's criteria for approving or denying administrative leave were "arbitrary and applied to members of the bargaining unit in an arbitrary manner." Id. at 10. The Arbitrator concluded that the Agency violated applicable regulations and the parties' collective bargaining agreement (1) by its actions in: (1) setting "arbitrary criteria for excusing employees from duty," (2) failing to negotiate or consult with the Union over the procedures for approving or denying administrative leave, and (3) failing to give the Union an opportunity to negotiate over the impact of the procedures used by the Agency to excuse bargaining unit employees. Id. at 12. Accordingly, the Arbitrator sustained the grievance.
The Arbitrator directed the Agency to (1) restore all leave to the grievants who requested administrative leave for the days other employees were excused from duty; and (2) meet and confer with the Union regarding procedures for inspection of agency buildings following earthquakes.
III. Positions of the Parties
A. The Agency
The Agency contends that the Arbitrator's award "extend[s] beyond his authority, the Agency's negotiated agreement, and applicable Government-wide regulations." Exceptions at 1.
In particular, the Agency argues that the Arbitrator's remedy directing it to meet and confer with the Union concerning building inspection procedures following earthquakes "goes beyond the arrangements" provided for in Article 19-7. The Agency also argues that the award is "inconsistent with mid-term bargaining provisions under the current agreement in Article 32-2." Exceptions at 3-4. In addition, the Agency asserts that the Arbitrator failed to provide "a plausible interpretation" of Article 12-3 of the parties' agreement. Id. at 2. The Agency notes that Article 12-3 provides "a procedure for employees to follow if their absence(s) is necessary as a result of unfor[e]seen circumstances." Id. The Agency maintains that under this section, managers will grant or deny leave to employees based upon the employees' individual circumstances.
With respect to applicable Government-wide regulations, the Agency asserts that the award conflicts with FPM chapter 610 because the award requires the Agency to grant administrative leave to employees who were in preapproved leave status. Id. at 2-3.(2)
B. The Union
The Union asserts that the Agency's exceptions are "not well-founded" and argues that "the Agency is simply challenging the Arbitrator's conclusions from the evidence before him in resolving the issue submitted to him." Opposition at 2. The Union contends that the Arbitrator correctly applied applicable regulations and the collective bargaining agreement.
IV. Analysis and Conclusion
We construe the Agency's arguments that the Arbitrator's award "extend[s] beyond" the Agency's negotiated agreement and that he failed to provide "a plausible interpretation" of Article 12-3 as contentions that the award fails to draw its essence from the agreement. Exceptions at 1, 2. 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; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the 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. For example, U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115 (1991).
The Agency has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator considered Articles 2, 5, and 19 of the parties' collective bargaining agreement and rejected the Agency's arguments that, in taking its disputed actions, it did not violate the agreement. Nothing in the Arbitrator's interpretation of these articles or other provisions relied on by the Agency is irrational or implausible. Accordingly, there is no basis on which to conclude that the award fails to draw its essence from the agreement.
We reject also the Agency's argument that the Arbitrator's award conflicts with FPM chapter 610 because it would require the Agency to excuse employees who were in preapproved leave status. The Agency has not shown that FPM chapter 610 prohibits an agency from granting administrative leave to employees in preappr