46:1028(92)AR - - AFGE Local 2317 and Marine Corps Logistics Base, Albany, GA - - 1992 FLRAdec AR - - v46 p1028
[ v46 p1028 ]
The decision of the Authority follows:
46 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
MARINE CORPS LOGISTICS BASE
December 29, 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 George V. Eyraud, Jr. 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 denied a grievance alleging that the Agency violated the parties' collective bargaining agreement in the assignment of overtime work. 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
On June 24, 1991, a supervisor in the Agency's Electronic Inspection Unit asked one of the WG-2604-12 Electronic Systems Inspectors working in the Radio Shop if he wanted to work 1 hour of overtime. The employee accepted the offer. The overtime work to be performed was WG-12 level work. Although the supervisor did not ask the grievant, a WG-2604-13 Electronic Systems Inspector, to work overtime, the grievant volunteered to do so. The supervisor did not assign overtime work to the grievant because the supervisor needed only one person to work overtime.
The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to offer the grievant overtime. The grievance asserted that there was "not an equal distribution of overtime . . . due to the overtime rosters not being properly set up." Award at 5. The grievance maintained that the WG-12 and the WG-13 Inspectors should have been placed on the same overtime roster. When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator stated that the "agreed issue" before him was whether "the provisions of Article 15 of the [Master Labor Agreement were] violated when management assigned overtime for June 24, 1991, to [the WG-12 Inspector] rather than [to the grievant.]" Id. at 7.(*) The Arbitrator noted that Article 15, Section 4b of the parties' agreement "provides that 'supervisors will solicit volunteers . . . by announcing the particulars of the overtime assignment to the employees in the needed job category who are on duty at the time.'" Id. at 9 (emphasis supplied by the Arbitrator). Based on his interpretation that the term "'job category' includes employees in the same occupational series and at the same grade level[,]" the Arbitrator found that the supervisor complied with Article 15, Section 4b by offering overtime work graded at the WG-12 level to the only WG-12 on duty at the time overtime work was needed. Id. at 11. The Arbitrator also found that the supervisor was not required to use an overtime roster for assigning the overtime because he had the one volunteer he needed. Consequently, the Arbitrator found that there was no requirement to offer the overtime work to the grievant. Therefore, the Arbitrator concluded that the Union failed to prove that the Agency violated Article 15 of the parties' agreement when it made the overtime assignment to the WG-12 employee. The Arbitrator denied the grievance.
III. Union's Exceptions
The Union asserts that the award does not draw its essence from the parties' collective bargaining agreement, "but rather from the [Agency's] brief [to the Arbitrator] and management's annotated version of the [parties' agreement]." Exceptions at 1. In this regard, the Union argues that the Arbitrator's interpretation of the agreement was erroneous "in that he substituted his opinion of job category referred to in the [agreement] . . . ." Id. The Union also maintains that the Arbitrator's award is deficient because he refused to consider pertinent and material evidence.
IV. Analysis and Conclusions
A. Essence of the Agreement
The Union asserts that the award fails to draw its essence from the parties' collective bargaining agreement. To establish that an award is deficient on this ground, the party making the allegation must demonstrate 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 of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992).
The Union has failed to establish that the award is deficient under any of these tests. Based on his interpretation of Article 15, Section 4b, the Arbitrator concluded that the supervisor's assignment of overtime work did not violate the parties' agreement. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or otherwise deficient. Rather, the Union's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding the 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 283, 286 (1992).
B. Fair Hearing
We construe the Union's argument that the Arbitrator refused to consider pertinent and material evidence as an argument that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it is established that an arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. The Authority has consistently held that 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. See, for example, American Federation of Government Employees, Local 2109 and U.S. Department of Veterans Affairs, Temple, Texas, 46 FLRA 446, 449 (1992). 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. We note that the Arbitrator heard and considered testimony from the grievant concerning the issues in dispute. The Union has not shown that the Arbitrator improperly refused to hear pertinent additional testimony from the grievant or the Union or that any such refusal affected the fairness of the overall arbitration proceeding. See U.S. Department of the Air Force, Griffiss Air Force Base, New York and American Federation of Government Employees, Local 2612, 39 FLRA 471, 474 (1991).
In our view, the Union's argument constitutes mere disagreement with the manner in which the Arbitrator conducted the arbitration hearing and with the Arbitrator's evaluation of the evidence. As such, this exception provides no basis for finding the award deficient. For example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 108-09 (1992).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ Article 15 provides in pertinent part:
. . . .
Section 4 Distribution.
. . . .
b. When special skill or familiarity with the project are not required for the performance of an overtime assignment, supervisors will solicit volunteers for such overti