49:0165(22)AR - - VA Medical Center, Newington, CT and NAGE, Local R1-109 - - 1994 FLRAdec AR - - v49 p165



[ v49 p165 ]
49:0165(22)AR
The decision of the Authority follows:


49 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NEWINGTON, CONNECTICUT

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

0-AR-2500

_____

DECISION

February 28, 1994

_____

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 Albert G. Murphy 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 issued an award denying a grievance over the Agency's alleged failure to comply with the terms of a prior arbitration award. For the following reasons, we conclude that the Union has failed to establish that the award in this case is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance which alleged that the Agency failed to comply with the terms of a prior arbitration award. In the prior arbitration case, the parties "met in caucus, determined the manner of settlement for th[at] case, met with the arbitrator, and asked that the . . . stipulated award [at issue in this case] be entered[.]" Award at 2. That award required, among other things, that the grievant be restored to a shop helper position, classified at Wage Grade (WG) 4, Step 5.

The Agency implemented the award by assigning the grievant to a maintenance helper position in the Roads and Grounds Section of the Engineering Service. The grievant was required to perform duties which consisted almost entirely of raking, shoveling, and performing other work requiring "heavy physical effort." Id. The parties disagreed about the duties and the position that should have been assigned to the grievant pursuant to the prior award. The parties were unable to resolve the dispute and the matter was submitted to arbitration.

The Arbitrator found that although the grievance concerned the enforcement of a prior arbitration award, it also involved "elements of contract interpretation." Id. at 4. According to the Arbitrator, the prior award was "based almost entirely on the agreement of the parties, with little discretion being exercised by the arbitrator." Id. at 5. In determining whether the Agency had complied with that award, therefore, the Arbitrator stated that he was required to determine the parties' intentions as to the prior award.

The Arbitrator found that the Union drafted the language in the prior award and used the term "shop helper" to describe the position to which the grievant was to be assigned. According to the Arbitrator, the parties stipulated in this case that the position of shop helper does not exist at the Agency. The Arbitrator also found that the shop helper position is not otherwise defined in Federal regulations. The Arbitrator noted that the term "shop" refers to "the physical area wherein the various shop buildings utilized by different trades are located." Id. at 3. The Arbitrator also noted that the trades located in the shop "include carpenters, plumbers, electricians, as well as personnel assigned to Engineering Services." Id.

According to the Arbitrator, the Union maintained that, at the settlement meeting concerning the prior arbitration case, it "contemplated the grievant working almost exclusively inside, as some sort of a helper to trades working in 'the shop.'" Id. at 6. The Arbitrator noted that the Union claimed that the position at the Agency that is closest to the position contemplated under the settlement agreement is the trades helper position. However, the Arbitrator found that the trades helper position is classified at WG-5, "one more [grade] than the [settlement] agreement provided for the grievant." Id. The Arbitrator also noted the Agency's claim that the maintenance helper position was the appropriate position to which to assign the grievant under the stipulated award. However, the Arbitrator found that the position description for the "maintenance helper" position "has the glaring drawback of excluding primarily physical work, which the evidence indicates is basically what the grievant is now doing." Id.

After reviewing the parties' respective positions as to the meaning of the prior award, the Arbitrator concluded that "the scales tip in favor of the [Agency]." Id. The Arbitrator stated that, "given the lack of precision in the settlement language, and conceding the validity of the [Agency's] argument that its main duty is to comply with the award in reasonable fashion, it certainly cannot be said that [the Agency's] conduct was unreasonable." Id. (emphasis in original). According to the Arbitrator, neither the trades helper position nor the maintenance helper position "fits the bill precisely[.]" Id. However, the Arbitrator found that the variation of a pay grade from WG-4 to WG-5 in the position description offered by the Union was considerably more significant than a "somewhat ambiguous refer[e]nce to [the] absence of physical labor" in the position description offered by the Agency. Id.

Consequently, the Arbitrator rejected the Union's argument that the grievant should have been assigned to the trades helper position. The Arbitrator found that the Agency's assignment of the grievant to the maintenance helper position "at least on the surface meets the definition of a helper to the 'shop' where that expression includes the [Roads] and Grounds section of Engineering." Id. The Arbitrator further found that, "even if the balance did not incline, however slightly, in favor of the [Agency's position]," the burden of proof was on the Union to show that the Agency's implementation of the prior award was unreasonable. Id. The Arbitrator concluded that the Union had not sustained its burden of proof. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is contrary to law because the Arbitrator allowed the Agency to violate the prior award by assigning the grievant to the maintenance helper position. The Union states that the Authority has held that "an agency must take the action required by an arbitrator's award when that award becomes 'final and binding.'" Exceptions at 3 (citing U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 38 FLRA 99 (1990) (Carswell)). The Union maintains that the parties understood and agreed that the grievant would be assigned duties assisting skilled tradesmen, and not the purely physical laboring duties which the grievant was assigned. The Union argues that, by assigning the grievant duties that require physical labor, the Agency failed to comply with the prior award and, thereby, violated the requirements in Carswell. The Union claims that the prior award constitutes an appropriate arrangement, under U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Washington Plate Printers Union, Local No. 2, International Plate Printers, Die Stampers and Engravers, 41 FLRA 860 (1991) (BEP), with which the Agency is required to comply.

The Union also contends that the award fails to draw its essence from the parties' agreement. The Union asserts that the prior award is "a recitation of the parties['] agreement" regarding the reinstatement of a bargaining unit employee. Id. at 2.

B. Agency's Opposition

The Agency argues that the Union has not demonstrated that the award is contrary to law. The Agency states that "the Arbitrator found there to be a 'lack of precision in the settlement language.'" Opposition at 5. According to the Agency, under United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA 71 (1987) (IRS, Austin Service Center), the adequacy of compliance with an arbitration award is determined by whether the Agency's construction of the award is reasonable. The Agency asserts that the Arbitrator's award is based on his finding that the Agency's action was a reasonable construction of the settlement agreement within the meaning of IRS, Austin Service Center. The Agency distinguishes Carswell, cited by the Union, on the ground that Carswell only applies to arbitration awards with clear and unambiguous language.

The Agency also asserts that the Union has failed to demonstrate that the award fails to draw its essence from the agreement.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Union has not demonstrated that the Arbitrator's award is contrary to law or that the award fails to draw its essence from the parties' agreement. Accordingly, we will deny the Union's exceptions.(*)

A. Award Is Not Contrary to Law

In IRS, Austin Service Center, an unfair labor practice case involving an alleged violation of the Statute based on a refusal to comply with an arbitration award, the Authority stated that it would determine "the adequacy of compliance with an arbitration award . . . by whether [an agency's] construction of the award is reasonable, which would depend on whether the construction is consistent with the entire award and consistent with applicable rules and regulations." 25 FLRA at 72. In National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252 (1992) (IRS, Phoenix District), which also involved an alleged unfair labor practice based on a refusal to comply with an arbitration award, we reviewed an agency's exception alleging that an arbitrator had incorrectly interpreted and applied IRS, Austin Service Center. We rejected the agency's contention and found that the arbitrator "appropriately cited IRS, Austin Service Center for the standard to assess compliance with an arbitration award . . . ." Id. at 271.

The instant case does not involve an alleged unfair labor practice. Nevertheless, consistent with the standard used in such cases to assess compliance with arbitration awards, the Arbitrator found that, on balance, the Agency's interpretation and implementation of the prior award was not unreasonable. The Union has not demonstrated that the Arbitrator erred. The Union's contentions merely disagree with the Arbitrator's finding that the Agency complied with the prior award. See id. at 272. Disagreement with an arbitrator's findings, and the conclusions based thereon, provides no basis for finding an award deficient. See American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress, 48 FLRA 1021, 1028 (1993) (Library of Congress).

We reject the Union's argument that the Agency's actions implementing the prior award were contrary to BEP. Under BEP, the Agency was required to implement the prior award because it is an appropriate arrangement. The issue before the Arbitrator was whether the Agency complied with the prior award. The Arbitrator found that the Agency had complied with the award. Therefore, to the extent that BEP requires an agency to comply with an award that constitutes an appropriate arrangement, the Agency's actions in this case were consistent with BEP. Consequently, we conclude that the Union has not demonstrated that the Arbitrator's award is contrary to law.

B. Award Does Not Fail to Draw Its Essence from the Agreement

An award fails to draw its essence from an agreement when the party making this allegation establishes 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 National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Liquidation, Orlando Consolidated Field Office, Orlando, Florida, 48 FLRA 462, 464-65 (1993).

The Union has not demonstrated that the award is deficient under any of these tests. Rather, we find that the Union's argument constitutes mere disagreement with the Arbitrator's findings and his conclusion that, given the lack of precision in the language of the settlement agreement, the Agency reasonably complied with the prior award containing that agreement by assigning the grievant to the maintenance helper position. Disagreement with an arbitrator's findings, and the conclusions based thereon, provides no basis for finding an award deficient. See Library of Congress, 48 FLRA at 1028.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ As an exhibit to its exceptions, the Union attached a handwritten version of the prior award. The Agency contends that we are precluded from considering this exhibit un