47:0098(4)AR - - Air Force, OK City Logistics Center, Tinker AFB, OK and AFGE, Local 916 - - 1993 FLRAdec AR - - v47 p98
[ v47 p98 ]
The decision of the Authority follows:
47 FLRA No. 4
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 5, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Julius Rezler 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 exception.
The Union filed a grievance claiming that the Agency's overtime assignment practice violated the parties' supplemental collective bargaining agreement. The Arbitrator sustained the grievance and directed the Agency to instruct its supervisors to assign overtime consistent with the agreement. However, the Arbitrator refused to order the Agency to reconstruct the assignment of overtime for the disputed period and refused to award backpay.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
After several employees complained to the Union in August 1991 that for several months a supervisor had not been using overtime rosters when soliciting volunteers from other work crews to work overtime, the Union filed a grievance. The Union claimed that the Agency was failing to use overtime rosters and to distribute overtime fairly and equitably as required by Article 14 of the parties' local supplemental collective bargaining agreement. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Union contended that the Agency had violated the agreement. The Union requested as remedies that the Agency reconstruct the assigment of overtime involved in the grievance from May 15, 1991, to the present; that the Agency pay aggrieved employees for the overtime of which they were deprived; and that the Agency be ordered to use rosters in the future. The Arbitrator found no obligation for the Agency to use overtime rosters when supervisors solicited volunteers for overtime outside their own work crews. However, the Arbitrator did find that the Agency violated Article 14 of the agreement by failing to instruct supervisors to record the overtime that their employees work for other supervisors and to consider that overtime in their distribution of overtime assignments.
In determining what remedy was appropriate, the Arbitrator specifically distinguished between union grievances and grievances of individual employees. He stated that with respect to union grievances, as in this case, "there is need for contract interpretation to clarify future cases of similar nature." Award at 5 (citation omitted). As his award, the Arbitrator directed that the Agency instruct all supervisors to record all overtime assignments on their rosters, regardless of whether the overtime was performed for that supervisor's work crew or another work crew, and to take into consideration overtime assignments performed for other work crews when distributing overtime assignments.
In determining to direct this remedy, the Arbitrator specifically rejected the other remedies requested by the Union of reconstructing the assignment of overtime and awarding individual employees backpay. He explained that the reconstruction of overtime would be administratively burdensome and was not likely to identify aggrieved employees. Moreover, he indicated that these remedies would have been appropriate for individual grievances, but he noted that no individual employees had filed grievances contesting the disputed overtime assignment practice at the time the assignments occurred.
The Union contends that the award is contrary to the parties' master labor agreement and the local supplemental agreement. The Union notes that the master agreement provides that arbitrators are authorized to award remedies consistent with the agreement, which the Union maintains includes the local supplemental agreement. The Union further notes that Article 14, Section H of the supplemental agreement provides, as follows:
When it is determined through the grievance or arbitration process that the grievant, or grievants, have been denied the opportunity for overtime work in accordance with the Article, THE SOLE REMEDY SHALL BE PAYMENT FOR THE OVERTIME. Such payment is limited to the grievant or grievants that were improperly bypassed and cannot exceed the number of employees worked in violation of the article.
Exceptions at 6 (quoting the supplemental agreement).
The Union argues that the remedy that the Arbitrator was compelled to award under the terms of Article 14, Section H was payment for the overtime. Consequently, the Union asserts that the Arbitrator's refusal and failure to award backpay is expressly contrary to Article 14, Section H and conflicts with the provision of the master agreement indicating that remedies are to be consistent with the local supplement. In addition, the Union maintains that the Arbitrator's statement that individual employees should have filed grievances was not feasible because there are 45 employees in the affected work crews and the disputed practice extended for a period of 15 months.
IV. Analysis and Conclusions
We view the Union's claim that the award is contrary to the parties' master collective bargaining agreement and local supplemental agreement as a contention that the award is deficient because the award fails to draw its essence from the collective bargaining agreements. In order for the award to be found deficient because it fails to draw its essence from the agreements, the Union must establish one of the following: (1) the award cannot in any rational way be derived from the agreements; (2) the award is so unfounded in reason or in fact, so unconnected with the wording and purposes of the collective bargaining agreements, as to manifest an infidelity to the obligation of the Arbitrator; (3) the award evidences a manifest disregard of the agreements; or (4) the award does not represent a plausible interpretation of the agreements. For example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (OSHA). We conclude that the Union fails to establish that the award fails to draw its essence from the parties' agreements.
The Authority has repeatedly recognized that arbitrators have great latitude and discretion in determining and fashioning remedies. For example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991). Moreover, the Authority has consistently denied exceptions that constitute nothing more than disagreement with the arbitrator's determination as to the remedy. Id. In our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's determination to clarify the requirements of the supplemental agreement for future cases and to reject a rerunning of the overtime rosters with an award of backpay to affected employees. We are not persuaded that the supplemental agreement compelled the arbitrator in the circumstances presented to award the payment of overtime, as argued by the Union.
In determining what remedy was appropriate, the Arbitrator expressly distinguished between union grievances and individual grievances. In the Arbitrator's view, the remedies of rerunning the overtime rosters and awarding individual employees backpay would have been appropriate for individual grievances, but he noted that no individual employees had filed grievances contesting the assignment practice at the time the assignments occurred. Article 14, Section H requires a determination that the grievant or grievants were denied the opportunity for overtime work before the remedy of the payment of overtime is compelled. In this case, the Arbitrator made no such determination. Accordingly, we are not convinced that the Arbitrator's refusal to award payment of overtime fails to draw its essence from Article 14, Section H.
Unlike the awards that the Authority has found deficient because they failed to draw their essence from the collective bargaining agreement, the Union fails to establish that the award conflicts with the express provisions of Article 14, Section H. See U.S. Department of Justice, Immigration and Naturalization Service, Del Rio Border Patrol Sector, Texas and American Federation of Government Employees, National Border Patrol Council, Local 2366, 45 FLRA 926 (1992); U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991); American Federation of Government Employees, Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725 (1985); Overseas Education Association and Office of Dependents Schools, Department of Defense, 4 FLRA 98 (1980). In our view, the Union fails to establish that the award disregards the agreement or is implausible, irrational, or unfounded because the Arbitrator remedied the union grievance without the payment of overtime. Rather, the exception represents an attempt by the Union to have its own interpretation and application of the agreement and its own remedy substituted for those of the Arbitrator. As such, the exception provides no basis for finding that the award fails to draw its essence from the parties' collective bargaining agreements. See OSHA, 34 FLRA at 575-77.
Accordingly, we will deny the