48:0862(90)AR - - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE, Local 1857 - - 1993 FLRAdec AR - - v48 p862
[ v48 p862 ]
The decision of the Authority follows:
48 FLRA No. 90
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SACRAMENTO AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 10, 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 Ronald Hoh 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 a grievance which claimed that the Agency violated the parties' agreement by failing to select two employees for temporary duty assignment (TDY). For the following reasons, we find that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
At the time of the incident giving rise to the grievance, the two grievants were employed in the Agency's "Final Sell Division." Award at 3. They performed repairs, maintenance, and operational checks on F-111 fighter jets prior to flight preparation. In July 1992, the Agency was advised of the need to send several employees on TDY to the Royal Air Force Lakenheath Air Base in the United Kingdom in order to rewire and repair an F-111 aircraft. In deciding which employees would be assigned to the TDY under Air Force regulations and the parties' agreement, the Agency first determined what skills were necessary for the TDY. The Agency then examined an overseas availability roster, which lists employees by service computation date, and selected two employees who were assigned to the Agency's "Mod Center."(1) Id. Neither of the grievants, whose names were lower on the roster than the selected employees, was chosen for the TDY.(2)
Each grievant separately filed a grievance claiming that he, rather than one of the selected employees, should have been chosen for the assignment. When the grievances were not resolved, they were consolidated for arbitration. The parties stipulated the following issue for arbitration:
Did the Employer improperly fail to select the grievants for the TDY trip to Lakenheath, United Kingdom?
If so, what shall the remedy be?
Id. at 2.
The Union essentially argued before the Arbitrator that the grievants were qualified for the TDY while the two selected employees were not qualified. The Union pointed to the fact that the selected employees did not possess all the required certifications necessary to perform the type of work on the TDY or, if such certifications were held, the selected employees had not performed certain tasks for an extended period of time. In addition, the Union noted that one of the selected employees had been decertified on a certain job task.(3)
The Agency argued that the Union did not establish that the failure to select the grievants was arbitrary or capricious under Article 22, Section 10 of the parties' agreement.(4) The Agency maintained that the selected employees were qualified for the TDY and that they were chosen in accordance with the TDY roster. The Agency also contested the Union's arguments with respect to the selected employees' certifications.
The Arbitrator determined that the Agency "did not improperly fail to select the grievants for the TDY . . . ." Id. at 14. In reaching that result, the Arbitrator examined the requisite skills needed to perform the duties on the TDY and whether the selected employees were qualified under both Article 22, Section 10 of the parties' agreement and Air Force regulations. The Arbitrator rejected the Union's argument that the selected employees did not possess the required certifications. The Arbitrator found that the selected employees were certified to perform certain tasks and that they had not been decertified to perform other tasks. However, the Arbitrator acknowledged that the selected employees had, in fact, either been decertified or not certified on particular tasks. Nonetheless, the Arbitrator found no evidence that such tasks were performed on the TDY or that the Agency was aware, when it made the TDY assignments, of the necessity to perform the job function for which one of the grievants was not certified. Consequently, based on his determination that the selected employees were qualified for the assignment, and noting no apparent dispute that the selected employees ranked higher on the overseas assignment roster than the grievants, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union claims that the award is deficient because it is contrary to Article 22, Section 10 of the parties' agreement, various provisions of 5 U.S.C. § 2301(b) relating to merit principles, and an Agency regulation pertaining to the selection of employees for TDY. The Union also asserts that the award was based on "conjecture." Exceptions at 2.
More specifically, the Union argues that one of the selected employees was decertified on a particular task. Consequently, the Union maintains that that employee did not meet the requisite skills and was not qualified for the TDY. As to the other selected employee, who was not certified to perform a certain task, the Union maintains that, in fact, that task had to be performed on the TDY and the selected employee was unable to perform it. According to the Union, the Arbitrator's finding that the Agency was unaware of the need to accomplish that task "is purely conjecture." Id. at 6. The Union maintains that the Agency's selection procedures were flawed and that the award should be reversed.
The Agency argues that the Union failed to establish that the grievants' nonselection violated the parties' agreement. According to the Agency, the employees who were selected for the TDY were "first in line under TDY rotation procedures and possessed the requisite [certification] skills[.]" Opposition at 3. The Agency also claims that there was no showing that the award is contrary to law, rule, or regulation.
IV. Analysis and Conclusions
We will find an award deficient under section 7122(a) of the Statute when it is contrary to law, rule, or regulation, or is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. For the following reasons, we find that the Union has failed to establish that the award is deficient. Therefore, we will deny the exceptions.
First, we construe the Union's assertion that the award is contrary to Article 22, Section 10 of the parties' agreement as a contention that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from a collective bargaining 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 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. See U.S. Department of Health and Human Services, Social Security Administration, Area II, New York Region and American Federation of Government Employees, 48 FLRA 370, 380 (1993).
The Union has not demonstrated that the Arbitrator's application of Article 22, Section 10 of the agreement rendered the award deficient under any of the tests set forth above. In our view, the Union is merely disagreeing with the Arbitrator's findings concerning the qualifications of the employees who were selected for the TDY and is attempting to relitigate this case before the Authority. Such an exception provides no basis for finding the award deficient. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).
We also reject the Union's contention that the award is inconsistent with various provisions contained in 5 U.S.C. § 2301(b), which governs merit principles. The statutory provisions relied on by the Union relate to: the fair and equitable treatment of employees; the efficient and effective use of the Federal workforce; and the protection of employees against arbitrary action, personal favoritism, or coercion for partisan political purposes. Nothing in the award demonstrates that it is inconsistent with the cited merit principles. Similarly, nothing in the award establishes that it is contrary to the requirement, set forth in an Agency regulation, that employees selected for TDY be certified in the requisite skills for that assignment. As noted, the Arbitrator found that the employees selected for the TDY in this case possessed the requisite certifications. The Union's exception is simply disagreement with the Arbitrator's findings and conclusions and does not provide a basis for finding the award deficient. See, for example, National Association of Government Employees, Local R4-78 and U.S. Department of Veterans Affairs, Medical Center, Martinsburg, West Virginia, 46 FLRA 631, 636-37 (1992).
Finally, we find no merit to the Union's assertion that the award is based on "conjecture." Exceptions at 2. In support of this exception, the Union contested the Arbitrator's finding that the Agency was unaware of the need to perform a particular task on the TDY before employees were selected for that assignment. The Union maintains that, in fact, that task had to be performed and could not be performed by the selected employees. In our view, the Union's claim constitutes an assertion that the award is based on a nonfact.
To establish that an award is deficient on this ground, 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. See, for example, U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). An arbitration award will not be found deficient on this basis if the appealing party merely disputes an arbitrator's findings of fact. See id. The Union's excepti