46:1338(130)AR - - AFGE, Local 916 and OK City Air Force Logistics Command, Tinker AFB, OK - - 1993 FLRAdec AR - - v46 p1338



[ v46 p1338 ]
46:1338(130)AR
The decision of the Authority follows:


46 FLRA No. 130

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR FORCE LOGISTICS COMMAND

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

0-AR-2321

_____

DECISION

February 5, 1993

_____

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 Willard H. Pedrick 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. No opposition was filed to the Union's exceptions.

This case concerns a grievance that contested the reassignment of the grievant during a reduction-in-force (RIF) to a position with no promotion potential. The Arbitrator denied the grievance, finding that the reassignment was consistent with the applicable Agency regulations and the parties' Master Labor Agreement (MLA).

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

During an Agency RIF in May 1991 the grievant was reassigned to a position with no promotion potential. A grievance was filed contesting the reassignment. The grievance was not resolved and was submitted to arbitration.

The parties stipulated to the following issue before the Arbitrator:

[W]hether reassigning [the grievant] from a GS-895-6 (target GS-9), Industrial Engineer Technician, to a GS-2005-6 (dead-end) Supply Technician, was within law, rule, regulation, [and] for proper and just cause. If not, what should be the remedy?

Award at 1.

The Union first contended before the Arbitrator that there were irregularities in the processing of the grievance that invalidated the action taken. On the merits of the grievance, the Union contended that Air Force (AF) Supplement 351-13 and 351-41, supplementing Federal Personnel Manual (FPM) Supplement 351-1, was never negotiated with the Union and was consequently, invalid and could not be used to justify the reassignment of the grievant.(1) The Union also contended that the reassignment was invalid because it conflicted with the grievant's seniority retention rights.

The Agency contended before the Arbitrator that there were no irregularities in the processing of the grievance. On the merits, the Agency contended that the transfer of the grievant was mandated by valid Air Force regulations and was in accordance with FPM Supplement 351-1.

The Arbitrator first found that there was no procedural defect in the processing of the grievance.

Turning to the merits, the Arbitrator concluded that the challenged Agency regulations were valid. The Arbitrator found that the then-current FPM expressly authorized the Agency to publish the regulations as a supplement to the regulations contained in the FPM. The Arbitrator found that the Air Force supplemental regulations at issue were promulgated prior to January 1989, and that the current MLA became effective in October 1989.(2) The Arbitrator then found that the Union could have challenged Air Force (AF) Supplement 351-13 and 351-41, when it negotiated the current contract. Instead, the Arbitrator noted that the RIF article in the parties' MLA provides, in Section 16.02, that: "[a]ll reductions in force will be carried out in accordance with the applicable regulations." Id. at 6. The Arbitrator found that Section 16.03 of the MLA reinforces AF Supplement 351-13 and 351-41 by providing:

a. [I]n the event of a reduction in force, existing vacancies will be utilized to the maximum extent possible to place employees in continuing positions in order to minimize adverse actions and reduce separations.

Id. Accordingly, the Arbitrator concluded that the governing rules prescribed by AF Supplement 351-13 and 351-41, as "reinforced by Section 16.03" of the MLA, are valid and mandate that when a RIF necessitates the abolition of a particular job, the employee occupying that position must be transferred to an existing vacancy and may not exercise retention rights against an employee with a lower retention number. Id.

Consequently, the Arbitrator found that the Agency's actions that forced the grievant to accept a position that had no promotion potential and did not allow her to exercise "bump or retreat rights" were proper. Id. at 7. Accordingly, the Arbitrator concluded that the assignment of the grievant was "within the law, rules and regulations, and thus was for proper and just cause." Id. at 8.

III. The Union's Exceptions

The Union contends that the Arbitrator's award is contrary to law, FPM Supplement 351-1 and the parties' agreement and that the Arbitrator erred in stating that the grievant was transferred to an existing vacancy.

A. Contrary to Law

The Union alleges that the Agency failed, in violation of the Agency's duty to bargain under the Statute, to give the Union notice and the opportunity to negotiate over AF Supplement 351 before implementing those regulations. The Union argues, therefore, that AF Supplement 351 cannot be used to support the Agency's actions in reassigning the grievant. The Union claims that it was not aware of the AF Supplement until Step I of the grievance procedure. In this regard, the Union argues that the Agency has not provided any document showing that the Union was aware of this AF Supplement. The Union provided a document from AFGE Council 214 stating that it had "not been offered the opportunity to bargain" on the AF Supplement. Attachment to exceptions, letter from AFGE Council 214 dated March 26, 1992. The Union also contends that the Arbitrator erred by not requiring that the Agency provide a document showing that it gave the Union a chance to negotiate.

The Union further asserts that the Arbitrator's award is contrary to "prevailing arbitral views." Exceptions at 2. The Union provided a copy of an award issued after the award in this case was rendered, involving the same parties and issue. The arbitrator in that case found that AF Supplement 351 was invalid because the agency had failed to negotiate the supplement with the union.

B. Contrary to Regulation and the MLA

The Union contends that the Agency conducted the RIF contrary to the requirements of FPM Supplement 351-1 and the MLA. The Union argues that the grievant should have been allowed to compete for retention in her competitive level during the first round of RIF competition instead of being forced to choose between a vacancy with no promotion potential or separation.

The Union asserts that the AF Supplement is the only document mandating that vacancies be filled first. The Union argues that, in contrast, Section 16.03 of the MLA states that existing vacancies will be utilized to the maximum extent possible, but does not prescribe when they are to be used. The Union also argues that because Section 16.02 of the MLA requires that all RIFs will be carried out in accordance with applicable regulations, the Agency's actions were contrary to the MLA because they were inconsistent with FPM Supplement 351-1, which provides the applicable regulations for a RIF.

Finally, the Union states that the OPM transmittal sheet to FPM Supplement 351-1, dated September 18, 1989, stated that FPM Letter 351-22 was superseded and that FPM Chapter 351 was abolished. Based on this contention, the Union argues that because the AF Supplement used by the Agency, which was a supplement to the abolished FPM chapter, was dated January 24, 1989, the Agency used outdated publications when it conducted the RIF on May 19, 1991.

C. Factual Error

The Union contends that the Arbitrator erred in finding that the Agency had to transfer the grievant to an existing vacancy. The Union argues that an Agency witness testified at the hearing that no vacancies existed because, to reduce the impact of the RIF, all vacancies were abolished prior to the RIF. The Union asserts that the Agency used vacancies that were abolished to circumvent RIF procedures.

IV. Analysis and Conclusions

We conclude that the Union's exceptions provide no basis for finding the award deficient.

A. The Award is Not Contrary to Law

We disagree with the Union's contention that the award is inconsistent with the Statute because it is based on Agency regulations over which the Union had no opportunity to bargain. We find that the Union has misunderstood the issue before the Authority in this case. This is not an unfair labor practice case involving allegations that the Agency violated the Statute by not providing notice of the promulgation of AF Supplement 351 and an opportunity to bargain over its impact and implementation. We note that the stipulated issue relates solely to the reassignment of the grievant and does not address the promulgation of AF Supplement 351. Rather, the issue in this case is whether the award is deficient because the Arbitrator found that the supplement was an applicable regulation that governed the conduct of the RIF. The Arbitrator applied AF Supplement 351, notwithstanding the Union's claim that the Agency had not provided it with notice and an opportunity to bargain, because months after the supplement had been promulgated the exclusive representative negotiated the current MLA and expressly agreed in Section 16.02 that all RIFs would be carried out in accordance with applicable regulations.

In our view, as the Union did not raise the issue of the failure to bargain over AF Supplement 351 as an unfair labor practice, the Union cannot now establish that application of AF Supplement 351 by the Arbitrator is deficient unless it can demonstate that the Arbitrator's enforcement of the supplement based on the agreement to Section 16.02 of the MLA fails to draw its essence from that agreement. We note in this regard that the Union does not claim that the reassignment of the grievant was inconsistent with AF Supplement 351.

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; (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; (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 Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Houston, Texas and American Federation of Government Employees, Council 215, 46 FLRA 529, 533 (1992).

We find no basis on which to conclude that the award fails to draw its essence from the MLA. We conclude that the Union's claim that there was no notice and opportunity to bargain over the supplement when it was promulgated fails to establish that the Arbitrator's application of AF Supplement 351 by reason of Section 16.02 disregards the MLA or is irrational, unfounded, or implausible. Certainly, nothing in the Statute would have precluded the exclusive representative from accepting the supplement as a governing regulation as specifically set forth in Section 16.02, even if the supplement had been promulgated without proper notice and an opportunity to bargain. Accordingly, we can find no basis on which to find deficient the Arbitrator's determination to apply AF Supplement 351 pursuant to Section 16.02 of the MLA because the exclusive representative had failed to challenge the applicability of the supplement prior to negotiation of the MLA.

Insofar as the Union argues that the award was not in accordance with "prevailing arbitral views[]" because an arbitrator subsequently concluded that the regulations were invalid, the Authority has held that arbitration awards are not subject to review on the basis of evidence that comes into existence after the arbitration. Exceptions at 2. See, for example, U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890, 895 (1991). Moreover, the Authority has consistently held that arbitration awards are not precedential and that a contention that an award is contrary to other arbitration awards provides no basis for finding an award deficient. For example, American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs, Medical Center, Boise, Idaho, 44 FLRA 707, 712-13 (1992).

In addition, we find it significant that the Arbitrator did not rely solely on the regulations, but found that the regulations were "reinforced by" Section 16.03 of the MLA. Award at 6. Thus, the Arbitrator interpreted the language of the parties' agreement, in addition to the regulations, to determine the intent of the parties.

As to the Union's contention that the Arbitrator erred in not requiring the Agency to submit evidence that would show that the Union was given notice of the change in regulations, we find that the Union is merely disagreeing with the Arbitrator's evaluation as to the relevance of such evidence. The Arbitrator found that it did not matter whether the Union was properly notified at the time the regulation was implemented because it had an opportunity to negotiate on RIF procedures during contract negotiations and reached agreement on such procedures. Disagreement with an arbitrator's evaluation of evidence is not a ground to find an award deficient. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base and American Federation of Government Employees, Local 1592, 40 FLRA 1243, 1248 (1991).

B. The Award is Not Contrary to Regulation or the MLA

We also conclude that the award is not contrary to FPM Supplement 351-1 or the MLA. In response to the Union's contention that only the AF Supplement mandates that vacancies be filled first before employees can exercise their competitive retention rights, we find that neither FPM Supplement 351-1 nor the MLA prohibits the Agency from filling vacancies prior to allowing employees to exercise their competitive retention rights. FPM Supplement 351-1, Section S2-6(b) provides:

b. Agency authority to reassign. At its discretion, an agency may reassign an employee, without regard to RIF procedures, to a vacant position at the same grade or rate of pay. The position may be in the same, or a different:

(1) competitive level;

(2) competitive area; or

(3) local commuting area.

Thus, contrary to the Union's contention, the FPM does not require that employees compete for retention in competitive levels during the first round of a RIF before being offered vacant positions, but allows an agency the discretion to reassign an employee without regard to RIF procedures. Further, as conceded by the Union, the MLA provides, in Section 16.03, that "existing vacancies will be utilized to the maximum extent possible . . . in order to minimize adverse actions and reduce separations." Thus, even if AF Supplement 351-13 and 351-41 were invalid, FPM Supplement 351-1 permits, and the MLA does not prohibit, the reassignment of the grievant. In fact, as noted, the MLA provides that RIFs are to be carried out in accordance with applicable regulations, which the Union admits includes FPM Supplement 351-1.

Further, as to the Union's assertion that the Agency used outdated regulations to accomplish the RIF in question, the Arbitrator concluded that the applicable Government-wide regulations were contained in FPM Supplement 351-1, not in the abolished FPM Chapter 351, or the superseded FPM Letter 351-22. Moreover, the evidence shows that the Agency relied on FPM Supplement 351-1 in conducting the RIF in question. Although the AF Supplement may have been based on the abolished FPM Chapter 351, we note that, according to FPM Letter 351-25, dated August 31, 1990, none of the pertinent RIF provisions of the FPM was changed, modified, or clarified by FPM Supplement 351-1. Moreover, as found above, FPM Supplement 351-1 gives an agency the discretion to reassign employees to vacant positions without regard to RIF procedures.

Accordingly, because FPM Supplement 351-1 gives an agency discretion to reassign an employee to a vacant position without regard to RIF procedures and the MLA provides that vacancies be used, we find that the Union has failed to establish that the award, finding that the Agency acted properly within such rules and regulations, is contrary to regulation or the MLA.

C. The Union Has Not Demonstrated That the Award Is Based on a Nonfact

We construe the Union's assertion that there were no vacancies as a claim that the award is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 44 FLRA 1080 (1992).

The Union contends that there were no vacancies and that, therefore, the Arbitrator erred when he found that the Agency had to transfer the grievant to an existing vacancy. The Union asserts that the Agency used vacancies that were abolished to circumvent RIF procedures.

Based on the award, it is clear that the Arbitrator implicitly found that there was a vacant position to which the grievant was reassigned. The Union has not demonstrated that such a finding was clearly erroneous. Rather, we conclude that the Union's contention to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his findings based thereon. Such disagreement provides no basis for finding an award deficient. Id. at 1083.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Air Force Supplement 351-13 provides in relevant part:

2-6b. An employee reached for reduction in force may not displace another employee if an available vacancy exists which will satisfy the employee's right of assignment.

Air Force Supplement 351-41 provides in relevant part:

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