42:0329(26)AR - - Navy, Miramar Naval Air Station, San Diego, CA and AFGE Local 3723 - - 1991 FLRAdec AR - - v42 p329
[ v42 p329 ]
The decision of the Authority follows:
42 FLRA No. 26
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 Thomas H. Vitaich 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.
A grievance was filed alleging that the Agency violated the parties' collective bargaining agreement by changing the grievant's working conditions and job duties. The Arbitrator denied the grievance. 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
The Union filed a grievance alleging that the working conditions and duties of the grievant, a supply clerk, had been changed. When the grievance was not resolved it was submitted to arbitration.
The Arbitrator stated that "[t]he parties were not able to agree on a joint submission agreement." Award at 2. The Union asserted that the issues were:
1. Were the working conditions and the duties of [the grievant] changed? If so, what is the remedy?
2. If the working conditions were changed, was the agency required to notify and negotiate with the Union on such changes? If so, what is the remedy?
Id. According to the Agency, the issue was:
1. Were the work location and supervisor of the Grievant changed without proper notice, and were the changes due to animosity by the Grievant's first-level supervisor?
Id. Although the Arbitrator did not resolve the parties' dispute over the issue or issues to be resolved, the Arbitrator stated that it was necessary to determine "if there were illegal changes in working conditions and, if so, did they have an adverse effect?" Id. at 8 (emphasis in original).
The Arbitrator found first that there had been no changes in the grievant's supervision. Moreover, although the Arbitrator acknowledged that the grievant's work station had been changed, the Arbitrator conducted an on-site inspection of the grievant's new and former work stations and found that the grievant's "work station had been changed, but his working conditions had not." Id. at 10 (emphasis in original). As for alleged changes in the grievant's position description, the Arbitrator found that "[the grievant's] duties may have changed but [were] still within the yardstick of his position description." Id.
The Arbitrator concluded that the changes in the grievant's work station were "not in contradiction to any specific terms of the Collective Bargaining Agreement." Id. at 11. The Arbitrator also concluded that any change in the grievant's position description was "proper." Id. Finally, the Arbitrator found no evidence of animosity between the grievant and his supervisor and neither "clear nor convincing" evidence that the grievant "was the victim of disparate treatment[.]" Id. at 12. Accordingly, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union asserts that the award violates "applicable law and the negotiated agreement[.]" Exceptions at 1. The Union contends that the Arbitrator's award is deficient because the Arbitrator "failed to consider the requirement of the Agency to notify the Union of the proposed change of work station and/or duties prior to implementation . . . ." Id. at 2. The Union also asserts that the Arbitrator "overlooked" Article V, Section 2 of the negotiated agreement, which provides that the Union shall be given the opportunity to be represented at "any formal discussion involving unit members' interests . . . concerning any grievance or any personnel policy or practice or other general conditions of employment." Id. at 1-2.
IV. Analysis and Conclusions
We reject the Union's contention that the Arbitrator's award is deficient because the Arbitrator did not consider the issue of the Agency's obligation to notify the Union of proposed changes in working conditions. As noted by the Arbitrator, the parties did not stipulate the issues to be resolved in arbitration. Moreover, although the Union asserted that one of the issues to be resolved concerned the Agency's obligation to notify the Union of proposed changes in the grievant's working conditions, that issue was to be addressed "[i]f the working conditions [of the grievant] were changed[.]" Award at 2.
The Arbitrator concluded that the Agency did not violate the parties' agreement by changing the grievant's working conditions. As such, there is no basis in this record on which to conclude that the Arbitrator was required to address the Agency's obligation to notify the Union of such changes. In our view, this exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of the case before the Authority. Accordingly, it provides no basis for finding the award deficient. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 160, 165-66 (1990).
Similarly, the Union has not demonstrated that the award is deficient because the Arbitrator "overlooked" the provision in the parties' agreement addressing the Union's right to attend "formal discussion[s]." Exceptions at 1. There is no indication in the record that this issue was presented to the Arbitrator or was necessary to his resolution of the grievance.
Moreover, insofar as the Union's argument is intended as an allegation that the award fails to draw its essence from the parties' agreement, we reject it. 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 Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990).
The Union has not demonstrated that the award fails to draw its essence from the collective bargaining agreement under any of these tests. Based on his interpretation of the parties' agreement, as well as testimony and evidence presented at the arbitration hearing, the Arbitrator rejected the Union's contention that the