48:0764(79)AR - - Professionals Airways Systems Specialists, District No. 1 and Transportation, FAA, Office of Aviation Systems Standards, Battle Creek Flight Inspection Field Office, Battle Creek, MI - - 1993 FLRAdec AR - - v48 p764
[ v48 p764 ]
The decision of the Authority follows:
48 FLRA No. 79
FEDERAL LABOR RELATIONS AUTHORITY
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
DISTRICT NO. 1, MEBA/NMU (AFL-CIO)
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
OFFICE OF AVIATION SYSTEMS STANDARDS
BATTLE CREEK FLIGHT INSPECTION FIELD OFFICE
BATTLE CREEK, MICHIGAN
October 27, 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 David W. Grissom 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 Union filed a grievance claiming that the Agency violated the parties' collective bargaining agreement when it refused to authorize rental cars for four unit employees while attending training. The Arbitrator denied the grievance. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
Four unit employees and a supervisor were assigned to attend five and one-half days of training at the University of Oklahoma. One rental car was authorized for the training, and the use of the rental car was restricted to "official use only; i.e., to and from training site." Award at 4. Management chose to authorize the rental car on the travel orders of the supervisor attending the training. A rental car was not authorized on the travel orders of the unit employees attending the training. Instead, their travel orders noted that they would "be a passenger in rental car driven by [the supervisor]." Id. at 2.
The Union filed a grievance claiming that the Agency violated Article 26, Section 8 of the parties' collective bargaining agreement by failing to authorize rental cars for each of the unit employees attending the training. Article 26, Section 8 pertinently provides: "The Employer recognizes the need for local transportation for employees assigned to out-of-agency technical training, therefore, the use of rental car at the training site will be authorized where appropriate." Id. at 5 (quoting the agreement). The Union argued that it was inappropriate to authorize a rental car for the supervisor, but not for the unit employees. The grievance was not settled and was submitted to arbitration on the issue of whether management violated the agreement.
At arbitration, the Agency's facility manager testified that he deemed it appropriate under the agreement to authorize only one rental car for all the persons attending the training because they were at the same training location and were staying at the same hotel. He stated that he would have considered authorizing a rental car for each person if the employees had different training schedules.
The Arbitrator determined that Article 26, Section 8 clearly and unambiguously provided the Agency with the discretion to authorize rental cars for this type of training where appropriate. He effectively found that, under the circumstances, the Agency's denial was not inappropriate and that, consequently, the Agency had not violated the collective bargaining agreement. The Arbitrator rejected the Union's claim that, based on bargaining history, the agreement was not clear, but was instead "open to interpretation." Id. at 4. In addition, because he found that the agreement was clear and unambiguous, he held that the language was not subject to modification by past practice. However, he ruled that, in any event, the Union had failed to establish a valid and binding past practice that would have required the authorization of rental cars for the unit employees. He found that the situations in which employees were previously authorized rental cars were different from the situation in this case and could not support a finding of a valid past practice. Accordingly, as the award, the Arbitrator denied the grievance.
III. First Exception
A. Positions of the Parties
The Union contends that the Arbitrator erred in finding that Article 26, Section 8 was unambiguous and in rejecting evidence of bargaining history and past practice. The Union argues that the agreement is ambiguous as to who makes the finding of appropriateness and what factors are considered in making the finding. The Union also argues that the Arbitrator should have considered the Union's evidence of bargaining history and past practice. The Union notes that its negotiator "testified that it was his recollection that the agency would provide rental cars in circumstances such as those present in this case." Exceptions at 8. In addition, the Union claims that it presented unrebutted evidence of similar training trips during which the employees were authorized rental cars. Thus, the Union asserts that the agreement is not clear and that the Authority should set aside the award and find that the Agency violated the agreement.
The Agency argues that the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the agreement and an attempt to relitigate this matter before the Authority. The Agency asserts that the Arbitrator did not ignore the Union's evidence of past practice, but rather determined that the Union failed to establish a past practice. The Agency also asserts that the Union's bargaining history evidence was rebutted by the Agency.
B. Analysis and Conclusions
We view the Union's exception as a claim that the award does not draw its essence from the parties' collective bargaining agreement, and we conclude that the Union fails to establish that the award is deficient.
To demonstrate that an award does not draw its essence from the agreement, an appealing party must show one of the following: (1) that the award cannot in any rational way be derived from the agreement; (2) that the award is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) that the award evidences a manifest disregard of the agreement; or (4) that the award does not represent a plausible interpretation of the agreement. For example, International Organization of Masters, Mates, and Pilots, Marine Division, ILA, Canal Pilots Branch and Panama Canal Commission, 39 FLRA 707, 710-11 (1991) (PCC). We find that the Union fails to demonstrate that the award is deficient under any of these tests. The Arbitrator specifically addressed and rejected the Union's argument that the Agency's failure to authorize rental cars for the unit employees that were assigned for training violated Article 26, Section 8 of the parties' agreement. Nothing in the Arbitrator's interpretation and application of this provision disregards the agreement or is irrational, implausible, or unfounded. See PCC, 39 FLRA at 711 (union failed to demonstrate that arbitrator's refusal to find a violation of the collective bargaining agreement in the agency's determination not to reimburse the grievants for car rental expenses did not draw its essence from the agreement).
We further find that the Arbitrator's ruling that he would not allow the clear language of the agreement to be modified by past practice constitutes his interpretation of the agreement and is not in any way irrational, unfounded, or implausible. Frank Elkouri & Edna Asper Elkouri, How Arbitration Works 454 (4th ed. 1985) ("While custom and past practice are used very frequently to establish the intent of contract provisions which are so ambiguous or so general as to be capable of different interpretations, they ordinarily will not be used to give meaning to a provision which is clear and unambiguous."). Furthermore, the Arbitrator held that, in any event, the Union failed to establish a binding past practice that would have required the Agency to have authorized rental cars for the unit employees. In our view, the Union's assertions with respect to bargaining history and a binding past practice constitute nothing more than disagreement with the Arbitrator's interpretation and application of the agreement and provide no basis for finding the award deficient. See, for example, U.S. Department of the Navy, Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 48 FLRA No. 70 (1993); Letterkenny Army Depot and National Federation of Federal Employees, Local 1429, 5 FLRA 272, 274 (1981).
Accordingly, we will deny the Union's exception.
IV. Second Exception
A. Positions of the Parties
The Union contends that the award is deficient because
[t]he Arbitrator's finding that Article 26, Section 8 of the agreement vests the [Agency] with unlimited authority to determine when it is "appropriate" for an employee to use a rental car while on out-of-agency training is contrary to law, rule or regulation in that in reaching his decision the Arbitrator failed to consider the standards set forth in Federal law and Government-wide regulations regarding the authorization and use of rental cars.
Exceptions at 4. The Union maintains that throughout the Arbitrator's decision, the Arbitrator states that the "where appropriate" language of the agreement grants the Agency discretion to grant or deny authorization for a rental car while an employee is attending training. Id. The Union maintains that 5 U.S.C. § 5733 and provisions of the Federal Travel Regulations, 41 C.F.R. §§ 301-2.2(b), 301-3.2(a), require consideration of whether authorizing a rental car will be advantageous to the Federal Government. The Union argues that the record in this case is devoid of any evidence that the Agency made this determination in the manner required by law or that the Arbitrator considered the statutory and regulatory standards when analyzing the Agency's determination that authorization of a rental car was not appropriate. The Union asserts that the Arbitrator's finding that the Agency has complete discretion to authorize rental cars without regard to the statutory and regulatory standards could result in determinations that conflict with legal standards.
The Agency contends that the cited law and regulations merely require that a manager make a determination on the appropriateness of authorizing a rental car and that the award is consistent with this requirement.(*)
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
We disagree with the Union that the Arbitrator found that the agreement vested the Agency with "unlimited authority" to determine the appropriateness of authorizing use of a rental car while attending training. Exceptions at 4. In our view, the Arbitrator recognized that the determination involved the exercise of some discretion and examined the facility manager's testimony as to the reasons he refused to authorize the rental cars to decide whether the exercise of discretion was improper or inappropriate in the circumstances presented. Furthermore, the Union fails to establish that the Arbitrator's denial of the grievance is in any manner contrary to law or regulation.
In contending that the award is deficient, the Union has cited 5 U.S.C. § 5733, which provides: "The travel of an employee shall be by the most expeditious means of transportation practicable and shall be commensurate with the nature and purpose of the duties of the employee requiring such travel." The Union also cites 41 C.F.R. § 301-2.2(b) and § 301-3.2(a), which provide that travel on official business will be by the method most advantageous to the Government with cost and other factors considered and that a rental car will be allowed if authorized or approved as advantageous to the Government. In our view, these provisions provide for the exercise of discretion on the part of the responsible manager in determining whether to authorize or approve the use of a rental car for an employee traveling on official business, and the Union fails to establish that the award sustaining the Agency's refusal to authorize or approve the rental cars is deficient. In terms of this case, the Union has not demonstrated that the cited provisions mandated the authorization of a rental car for each unit employee in the circumstances presented. Thus, we find that the Union fails to establish that the award of the Arbitrator is in any manner contrary to these provisions. See Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 66 (1981) (union failed to demonstrate that regulations mandated the remedy desired by the union and consequently failed to demonstrate that the award was in any manner contrary to those regulations).
Accordingly, we will deny this exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ In addition, the Agency contends that this issue was not raised at any time before the Arbitrator and that, therefore, the Authority should not consider the issue as a basis for finding the award deficient. We will consider the Union's contention that the award is contrary to law and regulation. In our view, this claim presents the issue of whether the award is deficient under section 7122(a) of the Statute. Such an issue is not precluded under section 2429.5 of the Authority's Rules and Regulations because it is an issue that arose only after the Arbitrator issued his award and could not have been presented to the Arbitrator. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1566 (1992).