45:0727(63)AR - - Air Force, Randolph AFB, TX and AFGE Local 1840 - - 1992 FLRAdec AR - - v45 p727



[ v45 p727 ]
45:0727(63)AR
The decision of the Authority follows:


45 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

RANDOLPH AIR FORCE BASE, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1840

(Union)

0-AR-2216

DECISION

July 24, 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 Harry L. Johnson 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.(1) The Agency filed an opposition to the Union's exceptions.

The parties submitted to arbitration the issues of whether the Agency violated the collective bargaining agreement by contracting for certain repair work and whether the Union was entitled to two representatives on official time at the arbitration hearing. The Arbitrator found no violation of the agreement in contracting for the repair work and found that the Union was limited to one representative at arbitration hearings. Therefore, he denied the grievance.

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 parties presented the following issues to the Arbitrator:

1. Was the Union entitled to have two representatives paid by the U[.]S[.] Government on official time in accordance with the terms of the negotiated agreement between the parties in order to pursue this grievance during the arbitration hearing?

2. Is [the Agency] violating the terms of the agreement, specifically Article 34,(2) by awarding contracts under the simplified acquisition of base engineering requirements (SABER) system of contracting and is the Union entitled to an award of $1,410,400.00 as a result of the alleged violation?

Award at 3 (footnote added).

With respect to the official time issue, the Union argued to the Arbitrator that under section 7131(a) of the Statute, it was entitled to two representatives on official time because the Agency had two representatives on official time. The Agency argued that the collective bargaining agreement clearly provides that the Union is entitled to only one representative on official time at arbitration hearings. The Arbitrator agreed with the Agency and found that under the agreement the Union was not entitled to have two representatives on official time. The Arbitrator ruled that only one representative of the Union is entitled to official time and other representatives must attend in a nonduty status.

With respect to the SABER contracting issue, the Union argued to the Arbitrator that the Agency improperly used SABER contracting to perform rewiring work on certain housing. The Union asserted that the rewiring constituted bargaining-unit work that should have been assigned to unit employees. The Union claimed that at the time of the hearing, the Agency had contracted out $240,000 worth of bargaining-unit work and demanded payment in that amount to unit employees, who lost work they could have done.

The Agency argued that there was no violation of Article 34 of the agreement. The Agency claimed that the rewiring was not bargaining-unit work. The Agency maintained that SABER contracting is for overflow work and work, like the rewiring in this case, that unit employees are not capable of performing. The Agency asserted that the contracting out covered by Article 34 concerns contracting out under OMB Circular A-76 and not the SABER contracting system.

The Arbitrator found that the Union failed to establish that the disputed rewiring was bargaining-unit work and found no violation of the parties' collective bargaining agreement. He concluded that nothing in the wording of the agreement showed that SABER contracts, such as the disputed contract in this case, which involved a project that could not be performed by unit employees, were subject to Article 34 of the agreement. He ruled that because the SABER contracting system was not subject to OMB Circular A-76, SABER contracting was not subject to Article 34 of the agreement. The Arbitrator further found that the Union had produced no evidence of any impact on unit employees as a result of SABER contracts and had failed to establish any entitlement to money damages.

Accordingly, as the award, the Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

1. The Union

The Union contends that the award fails to draw its essence from the collective bargaining agreement and that the award is contrary to law by failing to find a violation of the agreement. The Union argues that the Agency failed to inform the Union when it contracted out bargaining-out work as required by Article 34 of the agreement. The Union claims that it established that the disputed rewiring was bargaining-unit work and that the Arbitrator erroneously referred to OMB Circular A-76 in interpreting the agreement because OMB Circular A-76 has nothing to do with SABER contracting. Accordingly, the Union asserts that the Arbitrator's failure to find a violation of the collective bargaining agreement disregards the agreement and violates law.

2. The Agency

The Agency contends that the Union fails to establish that the disputed rewiring was unit work or that the SABER contracting had any impact on unit employees. The Agency also contends that the Union fails to establish that Article 34 of the agreement applies to SABER contracting.

B. Analysis and Conclusions

We conclude that the Union has not established that the award fails to draw its essence from the collective bargaining agreement or is contrary to law.

In order for the Authority to find that an award is deficient because it fails to draw its essence from the collective bargaining agreement, the appealing party must establish that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. For example, U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1558 (1992) (Ft. Polk).

In this case, the Arbitrator determined that the Union had failed to establish that the disputed rewiring was bargaining-unit work or that the SABER contracting had any impact on the bargaining unit. He also determined that SABER contracts are not subject to the requirements of Article 34 of the agreement. Accordingly, he found no violation of the collective bargaining agreement. In our view, the Union fails to establish that this finding disregards the agreement or is unfounded, implausible, or irrational. Instead, the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and his interpretation and application of the collective bargaining agreement. As such, the Union's exception provides no basis for finding that the award is deficient because it fails to draw its essence from the collective bargaining agreement or because it is contrary to law. See Ft. Polk, 44 FLRA at 1558-59; U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, AFL-CIO, Local 3610, 41 FLRA 504, 509 (1991); U.S. Department of the Treasury, Internal Revenue Service, Indianapolis District and the National Treasury Employees Union, Chapter 49, 36 FLRA 227, 230 (1990).

Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Positions of the Parties

1. The Union

The Union contends that the award is contrary to the Statute. The Union argues that under the Statute, it was entitled to two representatives on official time at the arbitration hearing because the Agency had two representatives on official time. The Union asserts that it was unfair to require the second Union representative to take leave to be present at the hearing.

2. The Agency

The Agency contends that under the collective bargaining agreement, the Union is entitled to only one representative on official time at an arbitration hearing and that, therefore, no basis is provided for finding the award deficient.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is contrary to the Statute. We find that the Union has misconstrued the provisions of the Statute relating to official time.

At the arbitration hearing, the Union relied on section 7131(a) of the Statute to support its claim that it was entitled to two representatives on official time because the Agency had two representatives on official time at arbitration. However, section 7131(a) does not apply to representation on official time at arbitration hearings. By its own terms, section 7131(a) applies only to representation in the negotiation of a collective bargaining agreement. For example, Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 148, 150 (1990). Although section 7131(a) does not provide official time for representation of a union at an arbitration hearing, it is well established that the parties may negotiate over, and agree to provide, official time for representation of a union at an arbitration hearing under section 7131(d) of the Statute. American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1012 (1988) (Army Publications Distribution Center) ("Examples of representational activities for which official time may be used include . . . participation in formal grievance resolution procedures . . . ."). However, unlike section 7131(a), which determines the maximum number of union representatives entitled to official time by reference to the number of individuals designated to represent the agency, under section 7131(d) agencies and unions may negotiate amounts of official time that are reasonable, necessary, and in the public interest for employees representing a union at an arbitration hearing. Army Publications Distribution Center, 32 FLRA at 1012.

In this case, the Arbitrator determined that the parties had negotiated an amount of official time for employees representing the Union at arbitration and that the agreement limited the Union to one representative on official time. In view of this determination by the Arbitrator, we find that the Union is merely disagreeing with the Arbitrator's interpretation and application of the official time provisions of the parties' agreement and provides no basis for finding the award deficient. See, for example, U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890, 900 (1991). Furthermore, we reject the Union's argument that it was "unfair" to restrict it to one representative on official time. Exceptions at 4. The agreement of the parties to provide official time to only one employee to represent the Union at arbitration was a product of collective bargaining and any increase or change must be achieved through collective bargaining and not through arbitration or exceptions filed under section 7122(a) of the Statute. See U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1214 (1991).

Accordingly, we will deny the Union's exception.

V. Third Exception

A. Positions of the Parties

1. The Union

The Union contends that "[i]t was clear from the start of the arbitration that the arbitrator[']s mind was already set against a decision favoring the union." Exceptions at 7. In support of this contention, the Union notes that the Arbitrator complimented an Agency witness and that the Arbitrator issued his award only a month after post-hearing briefs were postmarked. The Union takes the position that the Arbitrator never studied the Union's presentation.

2. The Agency

The Agency asserts that the Union's exception constitutes nothing more than "personal attacks on the integrity of the arbitrator . . . ." Agency's Opposition at 3. The Agency argues that complimenting a witness "in no way shows a bias toward" the Agency's position. Id. The Agency also argues that the length of time between the filing of briefs and the award is not relevant in determining bias.

B. Analysis and Conclusions

We view the Union's exception as a contention that the Arbitrator was biased, and we conclude that the Union fails to establish that the award is deficient.

The Authority will find an award deficient when: (1) the award was procured by fraud, corruption, or undue means; (2) there was partiality or corruption on the part of the arbitrator; or (3) the arbitrator was guilty of misconduct by which the rights of any party were prejudiced. For example, Ft. Polk, 44 FLRA at 1561. In National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226, 233-34 (1991) (National Gallery of Art), we reviewed the standards applied by the Federal courts when a party seeks to have an arbitration award vacated on this ground. We noted that the courts review the record to ascertain whether the arbitrator's conduct destroyed the fundamental fairness of the process and that the courts require the party challenging the award to prove specific facts indicating impropriety. We further noted that the courts have found awards deficient on this basis when: (1) a reasonable person would conclude that the arbitrator was partial; (2) the circumstances are powerfully suggestive of bias; or (3) the evidence of impropriety is direct, definite, and capable of demonstration. National Gallery of Art, 39 FLRA at 234.

We conclude that no basis is provided for finding the award deficient. We agree with the Agency that the complimenting of an Agency witness and the issuing of the award a month after the postmarking of briefs fails to demonstrate that the award was procured by fraud, corruption, or undue means; or that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced under any of the tests commonly applied by Federal courts in private sector labor relations cases. See Ft. Polk, 44 FLRA at 1562. In our view, the Union has failed to establish any impropriety that destroyed the fairness of the arbitration proceedings. See National Gallery of Art, 39 FLRA at 234.

Accordingly, we will deny the Union's exception.

VI. Fourth Exception

A. Positions of the Parties

1. The Union

The Union claims that "it was agreed by everyone that their written briefs would be postmarked no later than the 21st of October, 1991." Exceptions at 7. The Union asserts that consistent with this agreement, the Union mailed its brief on October 21 and served the Agency with a copy. The Union further asserts that the Agency did not file its brief until October 22 and that the Agency responded to the Union's brief "word for word . . . ." Id. The Union contends that "[t]his was a [sic] unethical procedure and totally unwarranted and should have been disallowed by the Arbitrator." Id.

2. The Agency

The Agency maintains that it "confirmed filing deadlines for briefs with the arbitrator . . . ." Opposition at 3.

B. Analysis and Conclusions

We view the Union's exception as a contention that the Arbitrator failed to provide a fair hearing, and we conclude that the Union provides no basis for finding the award deficient.

We note that the Union fails to substantiate that "it was agreed . . . that . . . briefs would be postmarked no later than the 21st of October, 1991[,]" Exceptions at 7, and the Agency seems to dispute the Union's assertion. Furthermore, the Union's assertion fails to establish that the Arbitrator acted improperly so as to deny the Union an opportunity to present its case or prevent the Union from submitting pertinent and material evidence. As the Authority has consistently held, arbitrators have considerable latitude in the conduct of the hearing and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 413 (1991) (Office of Hearings and Appeals). Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. Office of Hearings and Appeals, 39 FLRA at 413. In our view, even assuming that the Union's assertions were true, the Union fails to esta