45:1139(113)AR - - Air Force, Tinker AFB, OK and AFGE Local 916 - - 1992 FLRAdec AR - - v45 p1139
[ v45 p1139 ]
The decision of the Authority follows:
45 FLRA No. 113
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
September 8, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Paul Barron 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.
An employee filed a grievance challenging the Agency's failure to promote him. The Arbitrator partially sustained the grievance and, as a remedy, ordered the Agency to pay the grievant the difference between a WG-8 and WG-9 Testing Equipment Operator for a certain period of time.
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 grievance in this case is one of a series that have come before the Authority on exceptions to arbitration awards, issued by different arbitrators, naming as parties the same Agency and Union that are named in this case. The grievances concern the Agency's failure to promote various wage grade employees who participated in, or were affected by, the Agency's implementation of its vocational technical (Vo-Tech) training program. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 399 (1991).
The grievant, a WG-8 employee, filed a grievance claiming that he should have been promoted to the WG-9 level. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issues as follows:
1. Is the grievance properly before the arbitrator from a substantive basis?
2. Was the grievance filed in a timely fashion and, therefore, properly before the arbitrator from a procedural basis?
3. Did the Agency process the grievance in an appropriate and timely fashion?
4. If the substantive grievance is properly before the arbitrator, is the Agency's action, as to the Grievant, of denying promotion from WG-8, in violation of laws or regulations, or the Master Labor Agreement? If so, what shall the remedy be?
Award at 1.
As relevant here, the Arbitrator determined the grievance was properly before him. On the merits, the Arbitrator determined that the Agency violated Article 13, Section 13.01(1) of the parties' collective bargaining agreement by failing to temporarily promote the grievant. The Arbitrator decided, however, that consistent with the time limits in the parties' negotiated grievance procedures, the grievant's "claim must be limited to the period beginning 21 days prior to the [initial] grievance"(2) because, the grievant should have known at that time "that he was consistently doing WG-9 work and, as such, was entitled to WG-9 pay . . . ." Id. at 25.
III. The Union's Exceptions
The Union contends that the award is deficient because it "exceeded the Arbitrator's authority; ignored and violated laws, regulations, [and] the [collective bargaining agreement] between the Parties; contained an inconsistency between the Arbitrator's findings and conclusion; and was not in accordance with the prevailing arbitral views." Exceptions at 2. Specifically, the Union contends that the Arbitrator "found and testimony, evidence, [and] other arbitrators awards supported that the [g]rievant performed WG-9 work from his certification date of January 1986, thru March 1990." Id. The Union asserts that the Arbitrator erred by limiting the grievant's backpay to a period beginning 21 days prior to the date on which the grievance was filed.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration, or awards relief to persons who are not encompassed within the grievance. U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890, 897-98 (1991). As the Union does not contend that the Arbitrator either resolved an issue not before him or granted relief to anyone who was not a party to the grievance, we reject the Union's contention that the Arbitrator exceeded his authority.
B. The Award Is Not Contrary to Law or Regulation
We reject the Union's contention that the Arbitrator's award violates law. The Union has cited no provision of law with which the award conflicts and none is apparent to us. An unsupported contention that an award is contrary to law provides no basis for finding an award deficient. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees,Local 916, 44 FLRA 527, 530 (1992).
We also reject the Union's contention that the award violates regulation. First, as to Air Force Regulation 40-321, which sets forth the procedures for detailing employees, the Union has cited no portion of the regulation with which the award conflicts and no such conflict is apparent to us. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's findings of fact and conclusions based thereon that, the grievant's claim was limited by the time limits in the parties' negotiated grievance procedure. As such, the exceptions provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia and National Association of Government Employees, Local R4-106, 41 FLRA 246, 249 (1991). Further, with respect to the Union's assertion that the Arbitrator's award violates Air Force Regulation 40-335, the Union did not provide us with a copy of that regulation or the portion thereof with which the award allegedly conflicts. Accordingly, the Union has not established that the award conflicts with this regulation. We note, in this regard, that section 2425.2(d) of the Authority's Rules and Regulations requires that an exception be a "self-contained" document that includes copies of "pertinent documents."
C. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement
We construe the Union's allegation that the Arbitrator's award violates the parties' collective bargaining agreement as a contention that the award fails to draw its essence from the parties' agreement. To demonstrate that an award is deficient on this ground, 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 Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992)(Oklahoma City ALC).
The Arbitrator concluded, based on his interpretation and application of Article 6, Section 6.07a of the parties' agreement as it related to Section 13.01, that the grievant's "claim must be limited to the period beginning 21 days prior to the grievance." Award at 25. Nothing in the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disregard of the agreement. In our view, the Union's argument that the award violates the parties' agreement, as well as its assertion that the award "contained an inconsistency between the Arbitrator's findings and conclusion," constitute mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. Exceptions at 2. Such disagreement provides no basis for finding the award deficient. For example, Oklahoma City ALC, 44 FLRA at 286.
Finally, a contention that an award conflicts with other arbitration awards provides no basis for finding an award deficient under the Statute. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991). Accordingly, we reject the Union's contention that the award is deficient because the Arbitrator did not follow "prevailing arbitral views." Exceptions at 2.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 13, Section 13.01 states:
When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position on the 31st day. The employee must be qualified to fill the position on a permanent basis.
Award at 23.
2. Article 6, Section 6.07a requires, in pertinent part, that "a dispute be raised informally with the first level supervisor 'within twenty-one (21) calendar days of the date of the management action or occurrence giving rise to the grievance or reason