48:0731(75)AR - - Navy, Naval Aviation Depot, Pensacola, FL and AFGE, Local 1960, Pensacola, FL - - 1993 FLRAdec AR - - v48 p731
[ v48 p731 ]
The decision of the Authority follows:
48 FLRA No. 75
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 25, 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 Thomas K. Goldie 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 filed an opposition to the Union's exceptions.
The Arbitrator denied grievances contesting the Agency's decision not to promote the grievants upon their completion of career-ladder training programs. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed grievances contesting the Agency's failure to promote three employees to the targeted grade level of GS-9 upon their completion of a career-ladder training program. The grievances were not resolved and were submitted to arbitration.
Because the parties were unable to stipulate the issues to be resolved, the Arbitrator framed the relevant issue(1) as follows:
Did the Employer violate appropriate provisions of the Collective Bargaining Agreement in question through the failure to promote the Grievants to GS-9 positions within two weeks/two pays [sic] after successful completion of their training programs? If so, what is the proper remedy?
Award at 10.
The Arbitrator found that, in 1989, the grievants began career-ladder training programs, and that "upon successful completion of pertinent program requirements, [they were to be promoted] to GS-9 positions." Id. at 11. Subsequently, as part of an Agency reorganization and reduction-in-force, both the target positions and the training programs were abolished. As a result, the grievants were not promoted at the time they completed the programs in September 1991. The Arbitrator noted that:
[w]ere it not for the reorganization and force reduction in process, with the related freeze on Career Ladder Promotions, the Agency's decision to eliminate their positions, . . . [and their] assignments to lower grade positions, the [g]rievants would have completed the time-in-grade needed for promotion to . . . GS-9 . . . as of September 22, 1991, and would have otherwise been promoted . . . .
Id. at 13-14.
From his review of the grievants' training program agreements and accompanying statements of understanding, the Arbitrator found that the "programs were based on the Agency's manpower needs." Id. at 40. He concluded that "[p]romotions are not guaranteed, but must also be dependent on those needs." Id. (emphasis in original). Therefore, he rejected the Union's contention that the Agency was obligated to promote the grievants upon successful completion of their training program. Further, contrary to the Union's argument, the Arbitrator found that no past practice existed which compelled promotions without regard to workload requirements. He noted that "in the past . . . employees have not been promoted after successfully completing training programs, based on ceiling limitations." Id. The Arbitrator also found that the Agency's representations regarding training and advancements "were not, in and of themselves, sufficient to [compel promotion], especially where vacancies do not exist." Id. at 43.
The Arbitrator concluded that the Agency had not violated the parties' agreement and rejected the Union's assertion that the Agency improperly failed to bargain over the impact and implementation of the promotion denial.(2) He also concluded that the Agency's decision not to promote the grievants did not constitute a change in conditions of employment because "the Agency properly reacted to . . . reduced manpower requirements." Id. at 44.
Based on the foregoing, the Arbitrator denied the grievances.
III. First Exception
A. Positions of the Parties
The Union asserts that the award is contrary to law. In particular, the Union argues that the Arbitrator erred in failing to conclude that the Agency violated a binding past practice by failing to promote the grievants. In this connection, the Union contends that "promises and inducements [made to the grievants by the Agency when they entered the training programs] are part of the past practice," and should have been found binding by the Arbitrator. Exceptions at 11. The Union also contests the Arbitrator's determination that the Agency's failure to promote the grievants did not change an existing past practice or the grievants' conditions of employment. According to the Union, the Arbitrator's conclusion is contrary to the Authority's decision in Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690, 697 (1991).
The Union also asserts that the award is contrary to section 7116(a)(1) and (5) of the Statute because the Arbitrator should have found that the Agency failed to bargain over the impact and implementation of changes to the career-ladder training programs. The Union contends that the Arbitrator should have found that the Agency failed to negotiate appropriate arrangements for employees who were adversely affected by the reorganization and RIF.
The Agency asserts that the Arbitrator's evaluation of the evidence on past practice accords with relevant case law and that the Union is merely seeking to reargue its case. The Agency also asserts that because there were no available positions to which the grievants could have been promoted, the Arbitrator correctly concluded that the Agency was not required to promote them.
B. Analysis and Conclusions
The standard for determining the existence of a past practice is whether a practice was consistently exercised for an extended period of time, with an agency's knowledge and express or implied consent. U.S. Department of the Treasury, Internal Revenue Service, Louisville District, Louisville, Kentucky, 42 FLRA 137, 142 (1991). However, "in general, a contention that an arbitrator erred in not finding a past practice provides no basis for finding an award deficient." National Association of Government Employees, Local R14-77 and U.S.Department of Veterans Affairs, Medical Center, Grand Junction, Colorado, 40 FLRA 342, 347 (1991).
We disagree that the Arbitrator erred in concluding that no binding past practice of promoting employees such as the grievants existed. In this connection, the Arbitrator found that the Agency had previously encountered limitations which precluded employees from being given promotions at the completion of training programs. Further, he noted that the reason language such as "'promotion is not guaranteed'" and "'other related factors'" was inserted into the statement of understanding signed by the grievants as part of the training agreement "was because of the earlier incidents when employees were not promoted." Award at 41. Noting these findings, we conclude that the Union has not demonstrated that, by failing to conclude that a binding past practice of promoting employees such as the grievants existed, the award is deficient. Moreover, in light of this conclusion, we need not address further the Union's argument that the Agency violated section 7116(a)(1) and (5) of the Statute by unilaterally changing a binding past practice without providing notice and opportunity to bargain.
We also reject the Union's assertion that the Arbitrator should have found that the Agency was obliged to promote the grievants because of promises and inducements made to them. We note that a career-ladder promotion is "a ministerial act implementing an agency's earlier decision to place employees in a career[-]ladder position with the intention of preparing the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulation are met." National Treasury Employees Union and U.S. Customs Service, Pacific Region, 32 FLRA 1141, 1148 (1988) (emphasis added). Accordingly, once an agency agrees to the conditions pursuant to which a career-ladder promotion will be granted, "'the ministerial act of promotion could not be withheld without a valid and lawful reason.'" U.S. Department of Housing and Urban Development, Regional Office, Atlanta, Georgia and American Federation of Government Employees, Local 1568, 41 FLRA 520, 526 (1991).
In this case, however, the Arbitrator found that promotion of the grievants was conditional on various factors, including the Agency's workload requirements. He concluded that the changed workload needs and lack of suitable vacancies supported the Agency's decision not to promote the grievants, notwithstanding "promises and inducements" made to the grievants at the outset of the training programs. We, therefore, reject the Union's assertion that the Arbitrator's award is deficient for failure to require the Agency to promote the grievants.
IV. Second Exception
A. Positions of the Parties
The Union asserts that the award fails to draw its essence from the parties' agreement because the Arbitrator failed to find violations of Article 3 of the parties' agreement, which requires the Agency to furnish the Union with certain information concerning decisions about the career-ladder positions, and because the Arbitrator should have found that the Agency violated the agreement by failing to give adequate notice and opportunity for impact and implementation bargaining at various stages of a reorganization and RIF.(3)
The Agency asserts that the Union fails to demonstrate that the award is deficient.
B. Analysis and Conclusions
To establish that an award fails to draw its essence from an agreement, a party must demonstrate 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. U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115 (1991).
The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator interpreted and applied the parties' agreement in determining that the evidence failed to establish the existence of the past practice alleged by the Union concerning promotions and that the Agency had no duty to bargain on the issue. Although, as noted previously, the Arbitrator did not specifically address all the contract provisions which the Union alleged were violated by the Agency, that fact does not render an award deficient or indicate that relevant arguments and provisions were not adequately considered. See National Federation of Federal Employees, Local 259 and U.S. Department of the Army Corps of Engineers, Memphis District, Memphis Tennessee, 45 FLRA 773, 779 (1992); see also U.S. Department of the Army, Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 45 FLRA 480, 482 (1992).
We have no basis on which to conclude that the Arbitrator's interpretation of the agreement is implausible, irrational, or unconnected to the wording of the parties' agreement. See General Services Administration and American Federation of Government Employees, Council 236, 47 FLRA 1326, 1334 (1993). The Union's arguments that the Agency failed to meet its bargaining obligations constitute mere disagreement with the Arbitrator's conclusion that no past practice existed, and do not establish that the award is deficient. See generally U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Boulder City, Nevada and American Federation of Government Employees, Local No. 1978, 40 FLRA 1169, 1179 (1991).
V. Third Exception
A. Positions of the Parties
The Union asserts that the Arbitrator "failed to conduct a fair hearing [and] exceeded his authority by excusing [witnesses'] willful non-compliance with a subpoena" and alleges a violation of 9 U.S.C. § 7.(4) Exceptions at 16.
The Agency maintains that "the record reflects that the [A]rbitrator made every effort to ensure that witnesses required for a fair hearing attended . . . .[and] permitted the grievants every chance for a fair and impartial review . . . ." Opposition at 6.
B. Analysis and Conclusions
The Authority will find an award deficient if it is clear that an arbitrator failed to conduct a fair hearing by, for example, refusing to hear evidence which is pertinent and material. U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1042 (1991). However, an arbitrator has considerable latitude in the conduct of a hearing, and the mere fact that it was conducted in a manner that a party finds objectionable does not, in and of itself, establish a basis for finding an award deficient. Id.
The Union's arguments do not establish that the Arbitrator failed to conduct a fair hearing by failing to require certain Agency witnesses to testify concerning decisions made about the grievants and the Agency reorganization. Here, numerous witnesses testified during the 7-day hearing regarding the disputed training programs, reorganization, and RIF. In our view, the Union's argument that the award is deficient because the Arbitrator chose not to hear further testimony constitutes mere disagreement with his evaluation of the evidence presented, and his determination that additional evidence was not necessary. See U.S. Department of the Air Force, Randolph Air Force Base, Texas and American Federation of Government Employees, Local 1840, 45 FLRA 727, 735 (1992); U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees, Local 900, 35 FLRA 1200, 1205 (1990). As such, it fails to establish that the award is deficient.
In this connection, we also reject the Union's allegations that the Arbitrator, in his conduct of the hearing, "acquiesced" in the Agency's violation of "[s]ection 35.01 of the [parties'] agreement which requires prompt, fair and orderly settlement of grievances," and "section 5.06 wherein the Agency agreed to administer all provisions of the agreement in a fair and equitable manner." Exceptions at 16. (emphasis in original). Such assertions merely express disagreement with the Arbitrator's conduct of the hearing and resolution of the issues and provide no basis for finding the 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).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Arbitrator rejected the Agency's argument that the grievances were not arbitrable. In its exceptions, the Union asserts that the Agency failed to timely raise its challenge to the arbitrability of the grievances. Because the Arbitrator resolved the issue in the Union's favor, we need not address the Union's assertion. Moreover, as the Union's remaining exceptions concern only one of the issues framed by the Arbitrator, we will not discuss the remaining issues before the Arbitrator.
2. Although the Arbitrator found no violation of the parties' agreement, the Arbitrator did not address separately all the specific provisions of the parties' agreement which, according to the Union, were violated by the Agency.
3. The Union relied on the following provisions of the agreement, in pertinent part:
Section 3.01. Matters appropriate for negotiation between the parties are personnel policies, practices, and matters affecting working conditions which are within the discretion of the Employer. . . .
Section 3.03. It is recognized that this Agreement is not all-inclusive and the fact that certain working conditions have not been specifically covered . . . compels either party to meet with the other for discussion and exchange of views in an effort to find mutually satisfactory solutions to matters not covered by this Agreement.
Section 3.05. It is agreed that the E[mployer] will provide the U[nion] with an advance copy of any proposed directive which effects changes to any existing benefits, practices and understandings currently in effect . . . The E[mployer] will negotiate with the U[nion] regarding the provisions of the proposed directives, providing request is made within ten (10) days after receipt of advance copy of the directive.
Attachment, Union's Exceptions at 3-4.
4. The Federal Arbitration Act provides that arbitrators "may summon in writing any person . . . as a witness" and that in the case of failure or neglect to appear, witnesses' attendance "may [be] compel[led]" upon petition to the appropriate United States district court. 9 U.S.C. § 7. The Union appears to argue that, having issued a subpoena for the attendance of the two witnesses, the Arbitrator thereafter violated the Federal Arbitration Act by finding that their testimony was not required. We disagree. First, we note that the courts "have disagreed as to whether the [Federal Arbitration] Act applies to collective bargaining agreements." See, F. Elkouri and E. Elkouri, How Arbitration Works 26 (4th ed. 1985). However, we need not determine whether the Act applies here because the provision cited by the Union provides only that Arbitrators may summon witnesses to attend; it does not direct them to compel such attendance.