47:0667(62)AR - - Air Force Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1993 FLRAdec AR - - v47 p667



[ v47 p667 ]
47:0667(62)AR
The decision of the Authority follows:


47 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS CENTER

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2372

_____

DECISION

May 20, 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 Norman Bennett filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Union filed a grievance on behalf of four bargaining unit employees who serve as Union officials and are on 100 percent official time. The Union claimed that each of the grievants was entitled to backpay based on the Agency's failure to detail and promote each of them to a GS-12 Labor Relations Specialist position. The grievance also challenged the manner in which the Agency conducts the grievants' job appraisals and records their work experience. The Arbitrator denied the grievance.

For the following reasons, we conclude that the exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

Under the terms of the parties' master collective bargaining agreement, the grievants are entitled to use 100 percent official time to perform Union representational activities. The grievants are compensated as if they occupied their bargaining unit positions. Prior to their designation as full-time Union representatives, the grievants held bargaining unit positions. Upon termination of that designation, the grievants are eligible to return to their normal duty positions.

Also in accordance with the parties' agreement, the performance appraisals given to the grievants are "presumptive ratings." Award at 2. That is, the ratings are based on the last rating each grievant received while performing the duties attendant to the particular bargaining unit position held. Additionally, the grievants are entitled to update their personnel records to reflect the labor relations experience they acquire while performing representational activities.

The Union filed a grievance in which it contended that the grievants should be compensated at the rate of pay corresponding to a "Labor Relations Specialist or Officer" position instead of at the rate of pay corresponding to their bargaining unit positions. Id. at 1. The Union also argued that the local Union president should be the rating official for the grievants' performance appraisals and that the appraisals should be based on the grievants' performance of Union activities. When the grievance was not resolved, it was submitted to arbitration.

The parties agreed on the following two issues for arbitration: (1) did the Agency violate the Master Labor Agreement (MLA), applicable, law, rule, or regulation by its "(1) classification, (2) pay treatment, (3) appraisals, and (4) recordation of work experience" of the grievants; and (2) as a matter of "substantive arbitrability," is the first issue arbitrable? Id. The Arbitrator found that there was also a dispute concerning the "procedural arbitrability[]" of the grievance, namely, whether the Agency failed to follow certain procedural requirements of Article 6 of the MLA. Id.

The Union argued before the Arbitrator that the Agency failed to comply with various procedural requirements contained in the grievance procedure and, therefore, "the appropriate remedy is to sustain the grievance." Id. at 6. In this connection, the Union argued that the Agency failed to: (1) provide someone with the authority to resolve the grievance; (2) contact the Union president or designee within 10 days after the grievance was filed to ascertain whether the Union wanted to meet concerning the grievance; (3) render a timely decision on the grievance; and (4) make every possible effort to resolve the grievance at the lowest possible level.

As to the merits of the grievance, the Union contended that the grievance concerns issues of detail and promotion and not classification matters. In this regard, the Union stated that "it is stipulated to that none of the full[-]time representatives performed any of the duties in their official job description; therefore, this does not constitute a classification issue." Id. at 3. The Union also maintained that the Agency violated the MLA by failing to temporarily promote the grievants for performing work of a higher grade. Additionally, the Union argued that the Agency committed a prohibited practice by "failing to take a personnel action[,]" and violated laws, rules, and regulations by failing to establish official positions, properly detail, and temporarily and permanently promote the grievants. Id. at 4. The Union further argued that the Agency failed to comply with the MLA "by not properly documenting a detail" and violated laws, rules, and regulations by failing to base the grievants' performance appraisals on the performance of Union activities. Id. at 3. The Union claimed that the Union president, rather than an Agency official, is the proper rating official for the grievants' performance appraisals.

As a remedy, the Union sought backpay for the grievants consisting of lost pay due to the Agency's failure "to detail and promote[]" them. Id. at 4. The Union also stated that the Arbitrator was authorized under Federal Personnel Manual (FPM) Supplement 990-2 to request that the Agency "establish positions." Id.

The Agency contended that it did not violate the procedural requirements of the negotiated grievance procedure. The Agency asserted, in this connection, that the wording of that provision "make[s] any meeting to resolve a grievance optional rather than mandatory." Id. The Agency added that, even if it had not complied with Article 6, "the Union is not entitled to any relief because no harm to the Union was shown." Id.

As to the merits of the grievance, the Agency claimed that the grievance should be denied because it concerns a classification matter. In support, the Agency cited the Authority's decision in National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 1285 (1991) (Naval Underwater Systems Center). The Agency also cited Authority case law for the proposition that employees who are on official time should be paid and appraised on the basis of their performance of official duties, and not based on the performance of their representational activities.

As an initial matter, the Arbitrator determined that the Agency failed to comply with various procedural requirements of the grievance procedure. However, the Arbitrator determined that the procedural errors were "an insufficient basis for sustaining this grievance[]" because the evidence did not establish harm or prejudice to the Union. Award at 8.

As to the merits of the grievance, the Arbitrator first found that the portion of the grievance concerned with backpay and promotions for the grievants, based on the Agency's asserted failure to detail and promote the grievants to the Labor Relations Specialist or Officer positions, involved matters that were not arbitrable and were beyond the scope of the Arbitrator's authority. The Arbitrator noted that the Authority found that a similar issue presented in Naval Underwater Systems Center involved classification matters and that any finding to the contrary in this case would be inconsistent with that decision. The Arbitrator further found that the grievants were properly compensated in accordance with their bargaining unit positions. In support, he relied on Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) and American Federation of Government Employees v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986) (AFGE).

The Arbitrator then rejected the portions of the grievance claiming that the Union president should be the rating official for the grievants' performance appraisals and that their ratings should be based on the performance of Union activities. The Arbitrator determined, based on the Authority's findings in Naval Underwater Systems Center, that job performance under 5 U.S.C. § 4202(a) is designed to encompass the performance of duties and responsibilities that are assigned to an employee by an agency. The Arbitrator found that sustaining the grievance in this regard would be inconsistent with 5 U.S.C. § 4302. Finally, the Arbitrator found that there did not appear to be any violation of the MLA, law, rule, or regulations by failing to record in the grievants' personnel files their work experience as Union representatives.

III. Union's Exceptions

The Union contends that the Arbitrator "erred, exceeded [his] authority; ignored and violated laws, regulations, the [MLA] between the [p]arties; and contained an inconsistency between the facts of the case and the Arbitrator's . . . conclusion." Exceptions at 2.

More specifically as to the alleged inconsistency, the Union asserts that the parties stipulated that the grievants performed the same job duties that are required of the GS-12 Labor Relations Specialist position. Therefore, the Union maintains that the Arbitrator was required to direct the Agency to pay the grievants backpay from the time of their appointment to that position.

The Union further asserts that the grievants have been denied certain rights to which they are entitled by law and that they have been discriminated against because of their Union affiliation. According to the Union, insofar as "discipline regulations" apply to the grievants, "pay regulations must also apply." Exceptions at 4. The Union also argues that the award conflicts with section 13.01 of the MLA and Air Force Regulation (AFR) 40-321 in that the grievants "should have been temporarily promoted to the GS-12 level of the labor relations job series, on the 31st day after being designated a full-time Union [r]epresentative." Id. at 3. In the Union's view, the award conflicts with general merit principles of fair and equitable treatment and equal pay for equal work as set forth in 5 U.S.C. §§ 2301, 2302(a)(2)(A)(IX), and 2302(b), as well as in AFR 40-102. The Union also states that the "ultimate objective of government must be not that government shall win [a] case but that justice shall be done." Exceptions at 3. For this principle, the Union cites Barnes v. Chatterton, 515 F.2d 916 (3d Cir. 1975) (Barnes) and 5 U.S.C. 7513.

IV. Analysis and Conclusions

We will find an award deficient when it is contrary to law, rule or regulation, or on grounds similar to those applied by Federal courts in private sector labor relations cases. For the following reasons, we conclude that the Union has failed to establish that the award is deficient.

A. The Arbitrator Did Not Exceed His Authority; The Award Does Not Contain an Inconsistency

The Union contends that the Arbitrator exceeded his authority and that the award contains an inconsistency because the Arbitrator failed to order backpay based on the parties' stipulation that the grievants performed the same job duties as are required of Labor Relations Specialists. We reject these contentions.

An arbitrator exceeds his or her authority when, for example, an arbitrator resolves an issue not submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. 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, 42 FLRA 680, 685 (1991). In this case, the Arbitrator stated that the parties had agreed that the case involved the issues of classification and pay of employees. The Arbitrator's finding that the matter of the grievants' grade level and position was not arbitrable because it raised a classification matter and the finding that the grievants were properly compensated were directly responsive to the issues before the Arbitrator. The Union's exception provides no basis for finding the award deficient. See, for example, U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno California and National Federation of Federal Employees, Local 2096, 46 FLRA 1625, 1629 (1993).

In addition, we find no merit to the Union's contention that the award contains an inconsistency. Despite the Union's assertion to the contrary, there is no evidence in the record that the parties entered into a stipulation in which they agreed that the grievants performed the same job duties as are required of a GS-12 Labor Relations Specialist position. Moreover, even if there had been such a stipulation, there is no evidence that the Arbitrator was required to order a backpay remedy for the grievants. In our view, the Union's contention constitutes disagreement with the Arbitrator's findings, reasoning, and conclusions and provides no basis for finding the award deficient. See, id.

B. The Award is Not Contrary to Law, Rule, and Regulation

The Union maintains that the award conflicts with AFR 40-321, by failing to temporarily promote the grievants, and with merit and equal pay principles set out in AFR 40-102 and 5 U.S.C. §§ 2301, 2302(a)(2)(A)(IX), and 2302(b). The Union also claims that the rights to which the grievants are entitled by law have been denied because of the grievants' Union affiliation. Finally, the Union cites Barnes and 5 U.S.C. § 7513 to support its assertion. We reject these contentions.

First, as to AFR 40-321, the Union has cited no portion of the regulation with which the award is alleged to conflict. Other than indicating that the regulation relates to details, the Union has not established in what manner the award conflicts with the regulation and no such conflict is apparent to us. Accordingly, the cited regulation provides no basis for finding the award deficient.

We also find no merit to the Union's contention that the award is contrary to 5 U.S.C. §§ 2301, 2302(a)(2)(A)(IX), and 2302(b), and AFR 40-102. These authorities essentially provide that employees will be treated fairly and equitably in terms of personnel management and decisions regarding pay and that employees will be given equal pay for equal work.

In this case, the Arbitrator found no violation of law, rule, or regulation in the manner in which the grievants were compensated and the manner in which their work experience as Union representatives was recorded. The Arbitrator further found that the grievants were properly compensated, citing various decisions for the holding that employees who are on official time should be compensated as if the employees were performing their "normal duties . . . ." AFGE, 798 F.2d at 1526. Nothing in the cited laws and regulation establishes that the Arbitrator's findings in this regard were inconsistent with merit and equal pay principles. Similarly, the Union has failed to establish that the Arbitrator's conclusion that the promotion and backpay issues are not arbitrable because they involve a classification matter is inconsistent with the cited authorities. In our view, the Union is merely disagreeing with the Arbitrator's findings and conclusions and is attempting to relitigate this case before the Authority. The exception provides no basis for finding the award deficient. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot Texarkana, Texas, 46 FLRA 615, 620-21 (1992).

Additionally, we find no merit to the Union's remaining arguments. First, for the reasons already expressed, there is no basis on which to conclude that the grievants were denied any rights to which they were entitled because of their Union affiliation. Second, the Union's reliance on Barnes and 5 U.S.C. § 7513 is misplaced. 5 U.S.C. § 7513 establishes that adverse actions such as removals, suspensions for more than 14 days, reductions in grade or pay, or furloughs for 30 days or less must be based on "such cause as will promote the efficiency of the service." 5 U.S.C. § 7513(a). Various procedures that are available to an employee affected by one of the enumerated adverse actions are set out elsewhere in § 7513. To the extent the matter before the Arbitrator in this case did not involve an adverse action, there is no basis on which to conclude that the award is inconsistent with the cited law. As to Barnes, that decision involved an employee who sought certain documents and procedural protections in connection with his removal. The Union cites to the court's acknowledgement that the objective of the Government is to ensure that "justice shall be done." 515 F.2d at 919. However, the Union fails to establish that the Arbitrator's award is inconsistent with that principle so as to render the award deficient.

C. The Award is Not Inconsistent with the Parties' Agreement