44:1195(95)AR - - Air Force, San Antonio Air Logistics Center, Kelly AFB, TX and AFGE Local 1617 - - 1992 FLRAdec AR - - v44 p1195
[ v44 p1195 ]
The decision of the Authority follows:
44 FLRA No. 95
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
May 8, 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 Hartwell D. Hooper 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 filed an opposition to the Union's exceptions.
The Union filed a grievance protesting the reassignment of the grievant as a result of the elimination of the grievant's position in a reduction in force (RIF). The Arbitrator concluded that the reassignment was made in accordance with applicable rules and regulations and the parties' collective bargaining agreement, and he denied the grievance.
For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, the Union's exceptions will be denied.
II. Background and Arbitrator's Award
The grievant has been employed by the Air Force Logistics Command at the San Antonio Air Logistics Center (SALC) since 1967. In February 1991, SALC was part of a command-wide reduction in force (RIF). Several hundred employees were terminated and many other employees were reassigned to other positions. At the time of the RIF, the grievant was one of three production controllers permanently assigned to the TIIPF branch.(1) At that time, there were also two production controllers assigned to the TIIPF branch who were on loan from their permanent assignments in the TIICB branch.
In implementing the RIF, management determined that two permanent production controller positions would be eliminated from the TIIPF branch. Based on the grievant's retention standing among the three permanent production controllers in the TIIPF branch, the grievant's position was one of the two positions eliminated. The two production controllers on loan were retained on loan and their permanent assignments in the TIICB branch were not affected by the RIF. The grievant was reassigned to a permanent production controller position in the TIIET branch. The grievant's grade and pay were not affected by the reassignment.
The Union grieved the reassignment, contending that "[n]o rationale or justification [was] provided for" the elimination of the grievant's position. Id. at 3. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated that the issue before him was whether "the reassignment of [the grievant] in the course of [RIF] procedures [was] done in accordance with all applicable rules and regulations and/or the provisions of the labor agreement." Id. at 4.(2) Before the Arbitrator, the Union claimed that "the workload did not justify elimination of the two production controller positions from TIIPF." Id. at 9. The Union argued that "management manipulated the reorganization" and made the grievant "a particular target because of his aggressive approach as a union steward." Id. The Union stated that the grievant "suffered harm in spite of keeping his grade and pay" because his prospects for promotion in the TIIET branch were not as good as they would have been if he had remained in the TIIPF branch. Id. The Agency argued that its decision to eliminate the two positions in TIIPF was properly based on its forecast that the workload would shift from the type of work done by the TIIPF branch and that, in any event, the grievant was not harmed by the reassignment.
The Arbitrator considered the Agency's actions in light of the RIF procedures prescribed by applicable regulations and the parties' agreement. The Arbitrator found that all the procedures "relevant to [the grievant's reassignment] were properly applied to him. None of them is at issue in the resolution of this particular grievance." Id. at 12. The Arbitrator also found that "if [the grievant] was to be removed from his position in TIIPF, it was proper to assign him to the vacancy in TIIET." Id.
The Arbitrator noted that issues remained as to "the alleged manipulation and misuse of the RIF process by management" and as to the Union's allegation that management's decision "to eliminate two positions in TIIPF was done to 'target' [the grievant]." Id. at 13. The Arbitrator found that management based its decision to eliminate those positions on an expected shift in workload. The Arbitrator concluded that in light of management's explanation for the decision to eliminate the positions in TIIPF, he would need more evidence "to justify saying that management was guilty of such devious and dishonorable motives." Id.
In sum, the Arbitrator determined that: (1) the dispute was arbitrable; (2) management had the right under law and regulation to make the decisions which it made in implementing the reorganization; and (3) the reassignment of the grievant was appropriate under the circumstances and was done in accordance with the parties' agreement and with applicable rules and regulations. The Arbitrator dismissed the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is deficient because it is contrary to an Agency regulation, AFR 40-351. Specifically, the Union claims that management's actions were contrary to AFR 40-351 because the Agency "manipulated[d] [t]he outcome of the RIF by the way it structured the reorganization" prior to the RIF. Exceptions at 1. Therefore, according to the Union, the Arbitrator erred in finding that the Agency complied with applicable law and regulations and with the parties' agreement.
The Union states that TIIPF was the only section in which management eliminated positions even though other sections have the same grade structure as TIIPF. The Union maintains that TIIPF was chosen in order "to 'target' [the grievant] because of his Union activities." Id. at 2. The Union notes that other non-veterans "with the same competitive ranking" as the grievant were not affected by the RIF and concludes that the Arbitrator merely "substituted his 'opinion' when he stated that [the grievant] had received" credit for veterans preference. Id.
The Union argues that, if AFR 40-351 had been properly applied, all positions with the same competitive ranking as those in TIIPF would have been considered for elimination and, as a result, positions in other sections held by non-veterans with less seniority than the grievant would have been eliminated. The Union notes that there were three non-veterans in other sections with less seniority.
The Union asserts that the Agency failed to meet its burden of proving that the Agency properly followed RIF regulations in reassigning the grievant. The Union contends that by conducting a RIF when it was not required to do so, the Agency violated RIF regulations because, under precedent of the Merit Systems Protection Board (MSPB), an agency is not required to use RIF procedures where a reassignment does not involve the displacement of another employee. The Union cites, as an example, Schenartz v. Department of the Treasury, 30 MSPR 415 (1986) (Schenartz).
B. Agency's Opposition
The Agency contends that the Union's exceptions should be dismissed for failure to comply with section 2425.2(a) and (c) of the Authority's Rules and Regulations because the exceptions fail to state the grounds on which review is requested and to cite authorities to support those grounds. The Agency states that Authority precedent requires generally that exceptions "must contain some legal analysis demonstrating the statutory or regulatory violation" and asserts that "the exceptions are devoid of any resemblance [to such an] analysis." Opposition at 2.
The Agency also contends that the Union has failed to demonstrate that the award is deficient because it is contrary to law, rule, or regulation. The Agency notes that "as concluded by the Arbitrator and as restated in the exceptions, the Union does not dispute the application of the RIF procedures to the grievant, but disputes management's reorganization, its shifts in project emphasis, and its temporary assignment of personnel." Id. at 3. The Agency states that, although the Union asserts that the Agency did not follow its own regulation in conducting the RIF, the Union's "exceptions fail to specify how the regulation was not followed by the Agency." Id. The Agency argues that "[t]he Union presents nothing which rebuts management's legitimate reason that positions were eliminated in the grievant's unit because of an expected shift away from the types of projects which were the responsibility of that unit." Id.
The Agency also notes the Union's claim that "the grievant was not afforded veteran's preference." Id. The Agency states, however, that the record shows that "the grievant was rightly placed [in] a vacancy in his competitive level in accordance with" applicable regulations. Id. at 4.
Finally, the Agency asserts that the exceptions raise an issue that was not raised before the Arbitrator and argues that, under section 2429.5 of the Authority's Rules and Regulations, the issue should not be considered by the Authority. The Agency states that "[a]lthough the Union contended earlier that the grievant was 'targeted,' the Union has never before claimed that he was targeted because of his Union activities." Id. at 4. The Agency argues, however, that if this issue is considered by the Authority, it should nonetheless be rejected because "[t]he Union has presented no evidence of the grievant's Union activities and has shown no causal connection between that activity and the Agency's actions." Id.
IV. Analysis and Conclusions
We reject the Agency's contention that the Union's exceptions fail to comply with our Regulations. The exceptions adequately state the grounds on which review of the award is requested and the arguments in support of the stated grounds. We note that the Arbitrator considered the Union's claim that the grievant was "a particular target because of his aggressive approach as a union steward." Award at 9. Consequently, we disagree with the Agency's contention that the Union did not raise this claim before the Arbitrator. We find that the Union's exceptions comply with section 2425.2(a) and (c) of our Regulations. We conclude, however, that the Union has failed to establish that the Arbitrator's award is deficient.
Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427, 432 (1992) (Department of Veterans Affairs). We find that the Union has failed to establish that the Arbitrator's award conflicts with AFR 40-351.
Although the Union claims that the award upholding management's actions is inconsistent with AFR 40-351, the Union does not cite the provision of AFR 40-351 with which it claims the award is inconsistent or demonstrate the manner in which the award allegedly conflicts with that regulation. In particular, the Union cites no provision of AFR 40-351, or any other law or regulation, which requires the Agency to decide which positions to eliminate based upon veterans preference or any other aspect of retention standing. We have reviewed AFR 40-351 and find no conflict between the award and that regulation. Moreover, the Union cites no provision of law or regulation that would restrict in any other manner the Agency's decision to eliminate permanent production controller positions in TIIPF. Under the MSPB precedent cited by the Union, while an agency is not bound to use RIF procedures where a reassignment does not involve the displacement of another employee, the agency is not precluded from using RIF procedures. See Schenartz. Accordingly, we find that the Union has not demonstrated that the award conflicts with law, rule, or regulation.
We construe the Union's argument that the Arbitrator erred in finding that the Agency complied with the parties' collective bargaining agreement as a contention that the award fails to draw its essence from the agreement. In order to demonstrate that an award fails to draw its essence from the agreement, the Union 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. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 105 (1992). The Union, however, does not explain in what way the award fails to draw its essence from the parties' agreement and has not demonstrated that the award is deficient under any of these tests.
We also find no merit in the Union's exception that the Arbitrator erred in failing to find that the Agency targeted the grievant because of his union activity. The Arbitrator found that the Agency had based its decision to eliminate the grievant's position on workload considerations and that, in light of the Agency's explanation for the decision, he could not, based on the evidence provided by the Union, find that Agency management was "guilty of [the] devious and dishonorable motives" ascribed to it by the Union. Award at 13. The Union has not shown that the Arbitrator used an improper evidentiary standard in making this finding and has not shown that this finding is in any manner deficient. Rather, the Union's exceptions constitute mere disagreement with the Arbitrator's findings and conclusions and do not constitute a basis for finding the award deficient under section 7122 of the Statute. See, for example, Department of Veterans Affairs, 44 FLRA at 432-33; and U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 37 FLRA 1218, 1224-25 (1990).
The Union's exception