44:0527(42)AR - - Air Force, OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1992 FLRAdec AR - - v44 p527



[ v44 p527 ]
44:0527(42)AR
The decision of the Authority follows:


44 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2173

DECISION

March 23, 1992

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 Diane Dunham Massey 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.

The Arbitrator determined that the stipulated issue in the grievance before her was not appropriate for expedited arbitration and placed the grievance in abeyance pending the outcome of a group grievance on the same issue pending before another arbitrator in regular arbitration. The Arbitrator decided that the remedy in the case before her should be consistent with the remedy ordered by the arbitrator in the regular arbitration and retained jurisdiction of the case for the implementation of the remedy once the arbitrator issued the award in the group 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 Union's exceptions.

II. Background and Arbitrator's Award

The grievant, an aircraft painter, requested a 1-day overtime assignment during the weekend of April 5 and 6, 1991. However, the grievant was not canvassed to work overtime on that weekend because, "[i]n the Paint Hangar [where the grievant worked], an employee must be willing to work both days of overtime in order to work weekend overtime." Award at 2. The Union grieved the Agency's bypass of the grievant, claiming that the grievant was improperly denied the opportunity to work overtime.

The grievance was not resolved and was submitted to arbitration under Article 7, Section 7.08 of the parties' collective bargaining agreement, which provides for expedited arbitration. The parties stipulated that the grievance was properly before the Arbitrator under expedited arbitration. The parties also stipulated to the following issue:

Was the Grievant . . . improperly bypassed for overtime on Friday and Saturday, April 5 and 6, 1991, and in doing so were there violations of the 1983 local Supplement or any other governing laws, rules or regulations? And if so, what shall the remedy be?

Id. at 1.

The Arbitrator found that the facts in the case were "largely undisputed." Id. at 2. Noting that the parties' agreement "places issues of overtime within the jurisdiction of the expedited arbitrator[,]" the Arbitrator stated that "[m]ore often than not[,] overtime issues may be resolved by analysis of the facts." Id. at 3. In this case, however, the Arbitrator found "the evaluation of the validity of the overtime scheduling procedure as the only means to resolve the issue [presented in the case before her]." Id. In other words, the Arbitrator concluded that "the Union is asking an Expedited Arbitrator to overturn the Paint Hangar [m]anagement's method of scheduling overtime." Id.

Notwithstanding the parties' stipulation that the matter was appropriate for expedited arbitration, the Arbitrator stated that she "[did] not believe that the purpose of [e]xpedited [a]rbitration is to litigate such a complicated issue which includes considerations of fairness and equity, contract language, past practice and the needs of the mission." Id. Moreover, the Arbitrator found that the parties' agreement "does not clearly define the standards by which an issue should be classified as expedited versus regular." Id.

Noting that the Union had indicated at the hearing that a group grievance on the same issue was pending in a regular arbitration proceeding before another arbitrator, the Arbitrator concluded that the "instant grievance should more appropriately be considered a group grievance . . . ." Id. at 4. In support of her conclusion, the Arbitrator stated that "in actuality, not only was the [g]rievant allegedly and potentially damaged[,] but so were at least seven other fellow employees who were not canvassed to work due to the overtime procedures in effect." Id.

Consequently, the Arbitrator placed the grievance in abeyance pending the outcome of the group grievance on the same issue pending before the other arbitrator. Stating that her remedy was "highly unusual," the Arbitrator decided that the remedy in the case before her should be consistent with the remedy issued by the arbitrator in the group grievance. Id. The Arbitrator stated that

if the Regular Arbitrator rules that the overtime procedures in the Paint Hangar violate the terms and conditions of the [p]arties' collective bargaining agreements[,] then the [g]rievant is entitled to eight hours overtime pay pursuant to Article 14, Section H, of [the parties'] Local Supplement. If the Regular Arbitrator rules otherwise or if the issue is resolved otherwise, then the [g]rievant is not entitled to a remedy.

Id. The Arbitrator retained jurisdiction of the case for the implementation of the remedy following the issuance of the arbitrator's award in the group grievance.

III. Exceptions

The Union contends that the award is deficient because it is "contrary to and not within the spirit, intent and general character of the law and the Master Labor Agreement." Exceptions at 2 (emphasis deleted). Specifically, the Union asserts that the award is contrary to law and the agreement because the Arbitrator failed to make a decision on the issue presented and instead passed the responsibility for deciding the issue to the arbitrator in the group grievance on overtime that was submitted to regular arbitration. The Union points out that the Arbitrator understood that she was required to evaluate the "'validity of the overtime scheduling procedure'" in order to resolve the issue in this case, but chose not to do so. Exceptions at 3 (quoting Award at 3).

The Union maintains that the parties stipulated that the issue was properly before the Arbitrator under the expedited arbitration procedure of the collective bargaining agreement and that the Arbitrator was required to render a decision. The Union disagrees with the Arbitrator's finding that the result of the expedited arbitration must be dependent on the outcome of the regular arbitration. The Union asserts that the case "must be judged on its merits." Id. at 4.

The Union asserts that, although the issue contained in the group grievance submitted to regular arbitration concerns overtime work, the group grievance "deals with many other issues of overtime in the Paint Hangar." Id. Accordingly, the Union requests the Authority to remand the case to the Arbitrator for a decision on the individual grievance.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute.

The Union has cited no provision of law in support of its contention that the Arbitrator's award is "in violation of law" and none is apparent to us. Exceptions at 2. An unsupported assertion that an award is contrary to law provides no basis for finding an award deficient. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Ohio and National Air Traffic Controllers Association, 39 FLRA 1036, 1041 (1991). Accordingly, the Union's exception provides no basis for finding the award deficient and we will deny that exception.

The Union asserts that the award is "contrary to and not within the spirit, intent and general character of . . . the Master Labor Agreement" because the Arbitrator failed to make a decision on the issue presented and instead passed the responsibility for deciding the issue to the arbitrator in the group grievance. Exceptions at 2 (emphasis deleted). We construe the Union's assertion as a contention that the award fails to draw its essence from the parties' collective bargaining agreement. To demonstrate that an award is deficient because it 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, American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 41 FLRA 1435, 1439 (1991) (SSA). As explained below, the Union's exception fails to show that the award is deficient under any of these tests.

We find the Union's argument that the Arbitrator did not issue a decision in this matter unpersuasive. The Arbitrator issued an expedited arbitration award as requested by the parties. She heard the arguments of the parties on the merits of the stipulated issue presented and determined that her remedy resolving that issue should be consistent with the remedy issued by the arbitrator who would be ruling on the validity of the Agency's overtime scheduling procedure through a regular arbitration proceeding. The Arbitrator specified precisely how the overtime procedure, as interpreted and applied in the pending regular arbitration proceeding, would be applied to the instant case. Accordingly, we conclude that the Arbitrator's award constitutes a decision resolving the issues submitted to arbitration.

We note the Union's reliance on the fact that the parties stipulated to the Arbitrator that the grievance was appropriate for expedited arbitration. We find nothing in the award to show that the Arbitrator improperly ignored that stipulation. The Arbitrator accepted the grievance as an expedited arbitration matter under Section 7.08 of the parties' agreement and addressed the issue presented. However, the Arbitrator determined that the grievance should be resolved by waiting until an award issued in the group grievance interpreting and applying the Agency's overtime scheduling policy and then basing the expedited grievance arbitration award on that decision. Thus, the Arbitrator did not disregard the parties' stipulation that the grievance was suitable for expedited arbitration. Rather, she made a determination as to the manner in which the grievance should be resolved. We find nothing in the Arbitrator's award in that regard that renders the award deficient. The Union is merely disagreeing with the Arbitrator's reasoning and conclusions in deciding how the grievance should be resolved. Such disagreement provides no basis for finding an award deficient. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 212 (1991).

The Arbitrator found that because the issue before her was also before another arbitrator in a regular arbitration proceeding, "the most appropriate action [in this matter] would be to render an award consistent with the arbitrator in the Regular Arbitration proceeding." Id. at 3, 4. We find that the Union has not shown that the Arbitrator's decision to award a remedy consistent with the remedy of the award issued by the arbitrator in the regular arbitration is irrational, implausible, or otherwise unconnected with the wording or purpose of the parties' agreement. Accordingly, we conclude that the Union has failed to show that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement.

In concluding that the Union has failed to show that the Arbitrator's award fails to draw its essence from the parties' agreement, we note our decision in U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991) (Hill AFB). Hill AFB concerned an arbitrator's interpretation and application of the same provision, Section 7.08 of the Air Force Master Labor Agreement, that the Arbitrator applied in this case. Section 7.08(d), pertaining to the conduct of the hearing, provides:

Either party may use up to five witnesses unless it is determined by mutual agreement or the arbitrator that more are necessary and may present evidence and exhibits in support of their respective positions. . . . The arbitrator must render a written award postmarked not later than three workdays after the conclusion of the hearing.

In Hill AFB, we found that an arbitrator improperly refused to consider the union's arguments on various issues raised in an expedited arbitration proceeding due to the arbitrator's erroneous interpretation and application of Section 7.08 of the agreement. We decided that the arbitrator failed to provide the union a fair hearing when he stated that the time available for the expedited arbitration hearing did not permit him to consider certain issues raised by the Union. We found that the parties' agreement "unequivocally provides for the right of the parties to fully and completely present evidence and exhibits in support of their respective positions." Id. at 108. We stated that "the refusal [to consider the issues] prejudiced the right of the [u]nion to fully and completely present its case and affected the fairness of the arbitration." Id. at 107. We also held that "[t]o the extent that the [a]rbitrator based his refusal on his interpretation and application of the agreement," the award failed to draw its essence from the agreement and was, therefore, deficient. Id. We concluded that the arbitrator's determination that Section 7.08 of the agreement supported his refusal to consider certain issues raised by the Union "cannot in any rational way be derived from Section 7.08 and manifestly disregards its provisions." Id. at 108.

However, Hill AFB is distinguishable from the present case. The Union does not contend, as did the union in Hill AFB, that the award is deficient because the Arbitrator failed to conduct a fair hearing. Moreover, the Arbitrator in this case did not refuse to consider the issue presented by the parties, as did the arbitrator in Hill AFB, and she did not deny the Union an opportunity to fully and completely present evidence and exhibits in support of its position. Rather, the Arbitrator permitted the parties to present testimony and evidence in support of their respective positions. Further, based on the parties' arguments and her interpretation and application of the agreement, the Arbitrator determined that the grievance should be resolved in accordance with the arbitrator's ruling in the group grievance that was currently pending in a regular arbitration proceeding.

In our view, the Arbitrator's determination that she should resolve the grievance in accordance with the arbitrator's ruling in the group grievance that was currently pending in a regular arbitration proceeding does not represent an implausible interpretation of Section 7.08 of the parties' agreement. There is nothing in Section 7.08 which precludes the Arbitrator from resolving the grievance in accordance with the ruling of a group grievance currently pending in a regular arbitration proceeding. Further, the Union has not shown that the Arbitrator's award cannot in any rational way be derived from Section 7.08 or that the award manifestly disregards the provisions of the parties' agreement. Moreover, as noted above, the Arbitrator's award in this case was not based on a refusal to consider evidence that was pertinent and material to the issue before her, but rather was based on a decision to order a remedy consistent with the remedy that would be ordered by the arbitrator in the regular arbitration proceeding. Consequently, we cannot conclude, as we did in Hill AFB, that the Arbitrator's interpretation and application of the parties' agreement fails to draw its essence from the agreement. Compare id. at 107-08.

Accordingly, we will deny the Union's exceptions.

V. Decision

The Union's exceptions are denied.

Opinion of Member Talkin, dissenting.

The Authority will find an arbitration award deficient if it is established that the arbitrator failed to resolve the issue submitted. See, for example, U.S. Army Reserve Components Personnel and Administration Center and American Federation of Government Employees, AFL-CIO, Local 900, 10 FLRA 507 (1982); National Bureau of Standards, Boulder Laboratories and American Federation of Government Employees, Local 2186, 9 FLRA 433 (1982). Similarly, Federal courts in private sector labor relations cases will find an arbitration award deficient when arbitrators imperfectly execute their powers by failing to decide the stipulated issue submitted by the parties. See, for example, Perma-line Corporation of America v. Painters Local 230, 639 F.2d 890, 893 (2d Cir. 1981). In my view, the Arbitrator failed to resolve the issue submitted to her under the terms of that submission. I would find that she imperfectly executed the authority granted her by the parties. Accordingly, I would find that the award is deficient, and, consequently, I respectfully dissent.

As set forth in the majority's opinion, the parties stipulated to the following statement of the issue:

Was the Grievant . . . improperly bypassed for overtime on Friday and Saturday, April 5 and 6, 1991, and in doing so were there violations of the 1983 Local Supplement or any other governing laws, rules or regulations? And if so, what shall the remedy be?

Award at 1. In addition, the parties stipulated that the grievance was properly before the Arbitrator as an expedited arbitration.

As noted in the majority's opinion, overtime work was available in the grievant's department on the weekend of April 5 and 6, 1991. The grievant wanted to work only one day of overtime. However, she was not canvassed to work overtime because her department's procedure requires that an employee work both weekend days of overtime in order to work weekend overtime.

Before the Arbitrator, the Union asserted that the grievant had been improperly denied the opportunity to work overtime. In response, management essentially claimed that the department procedure of assigning overtime in 2-day increments is valid and does not violate the parties' local supplemental agreement.

In her opinion accompanying her award, the Arbitrator acknowledged that "[t]he facts in this case are largely undisputed." Id. at 2. She also acknowledged that the Union was asking her, as an arbitrator in an expedited proceeding, to overturn the department procedure for scheduling overtime. She concluded that the evaluation of the validity of the procedure was the only means to resolve the issue presented. Thus, the Arbitrator clearly understood the issue that had been submitted to her by the parties, and she clearly recognized the means by which the submitted issue must be resolved. Yet she refused to undertake the evaluation of the validity of the procedure for scheduling overtime. She explained her refusal by stating that she did not believe "that the purpose of Expedited Arbitration is to litigate such a complicated issue . . . ." Id. at 3.

The Arbitrator professed her belief notwithstanding that "the Master Labor Agreement does not clearly define the standards by which an issue should be classified as expedited versus regular." Id. She maintained her view despite the fact that "the contract places issues of overtime within the jurisdiction of the expedited arbitrator." Id. She imposed her belief on the parties while conceding that "the [p]arties did not object to the jurisdiction of the Arbitrator in this case[.]" Id.

To resolve the issue presented by the parties, the Arbitrator instead imposed the remedy which might be ordered in a pending non-expedited arbitration case that did not involve the grievant and that had not yet been decided, explaining that to do otherwise would not serve the purpose of arbitration.

I disagree. In my view, it is the Arbitrator's award that has failed to serve the purpose of arbitration by ignoring the parties' mandate when they selected the Arbitrator to resolve the submitted grievance.

Quite simply, the award is deficient because it is an insufficient resolution of the dispute submitted by the parties. The stipulated issue presumed that there would be a precise answer as to whether the grievant was improperly bypassed for overtime. By proceeding under the expedited procedure, the parties intended that they would obtain an expeditious answer to that question. They neither intended nor sanctioned the Arbitrator's response that the issue was not appropriate for expedited arbitration. Nor did they intend or sanction the Arbitrator's resolution of imposing on this grievance the remedy which might be awarded in an unresolved arbitration, of which the grievant was not a part.

In view of section 7121 of the Statute, which provides that the grievance procedure is the exclusive procedure for resolving most disputes, including the dispute in this case, the rights of employees often must find protection in arbitration or be lost. The arbitration process under the Statute demands that arbitrators completely examine disputes under the terms of their submission. This is particularly crucial for individual grievants, who often have the most at stake. Furthermore, the success of the arbitration process rests on the belief that the parties will administer the process with the help of talented arbitrators who will resolve disputes fairly, accurately, and expeditiously. Such is the purpose of arbitration. In this case, the Arbitrator failed to perceive or ignored the interests she served as the parties' arbitrator and failed to meet the demands to which she must answer.

The Arbitrator was commissioned to bring her "informed judgment to bear in order to reach a fair solution of [the] problem." Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960). In my view, she failed to do so. The parties chose not to submit the grievant's dispute as part of the non-expedited arbitration case; they chose, instead, to submit this dispute to the Arbitrator under an expedited procedure. By her award, the Arbitrator has deprived the parties of their deliberate choice and negated the advantages of the expedited arbitration procedure. In my judgment, the Arbitrator has not served the process, the parties, and the grievant.

The Arbitrator's award manifests an infidelity to her obligation to determine the stipulated issue submitted to her, and I must conclude that the award is deficient under the Statute. In my view, this case does not concern the Arbitrator's interpretation and application of the parties' collective bargaining agreement. Thus, I do not quarrel with the majority's essence discussion; I merely find it irrelevant. This case is simply a matter of the Arbitrator's failure to resolve the issue submitted under the terms of that submission. In finding this award deficient, I do not believe that the commitment of both parties to a resolution of their dispute through arbitration is undermined o