49:0454(37)AR - - Army Aviation Center, Fort Rucker, AL and AFGE, Local 1815 - - 1994 FLRAdec AR - - v49 p454
[ v49 p454 ]
The decision of the Authority follows:
49 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY AVIATION CENTER
FORT RUCKER, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 9, 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 Donald P. Crane 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 alleging that the Agency violated the parties' collective bargaining agreement and Federal Personnel Manual (FPM) Supplement 351-1, when it established certain competitive levels for firefighters which would be applicable in the event of a reduction-in-force (RIF).(1)
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Agency established separate competitive levels(2) for firefighters in positions classified as "Stage Field," "Fixed Station," "Hazardous Material," and "Emergency Medical Technician/Hazardous Material." The Union filed a grievance contesting the four competitive levels and, when the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:
Did the Agency violate the Agreement and FPM Supplement 351-1 when competitive levels were established for Firefighters at Fort Rucker?
Award at 2.
The Union argued that one competitive level should encompass all firefighters because all firefighters work under the same job description and are routinely assigned from one area to another without additional training. The Agency contended that positions in the four competitive levels are not interchangeable and, instead, require specialized knowledge, skills, and training.
The Arbitrator found that the Agency did not violate the parties' agreement(3) or FPM Supplement 351-1 when it established four competitive levels for firefighters. The Arbitrator noted that, under the FPM Supplement, "an incumbent who crosses competitive levels must be able to perform as any new, but qualified employee without loss of productivity." Award at 9.
The Arbitrator found that positions in the four competitive levels required unique skills and specialized training. In this connection, the Arbitrator determined that firefighters in the Hazardous Materials classification handled chemical spills and that 2 years of specialized training was required to qualify for positions in that classification. Similarly, the Arbitrator determined that firefighters in the Emergency Medical Technician EMT firefighters required 18 to 24 months of specialized training.
According to the Arbitrator, firefighters in the Fixed Station and Stage Field classifications also required special skills. The Arbitrator noted testimony by an Agency witness that these classifications involved differences in "trucks, feedlines, equipment and structures." Id. at 8. The Arbitrator also noted that Fixed Station firefighters, who are responsible for fighting fires in highrise buildings, are provided special training in "controlled breathing, dragging hoses 100 feet, working with special equipment, etc." Id.
The Arbitrator concluded that undue interruption(4) could occur in the Agency's work if one competitive level was established for all firefighters because "more than orientation would be required of a [f]irefighter moving from one competitive level to another." Id. at 9. The Arbitrator also concluded that, if only one competitive level was established, then the Agency's "productivity and mission would suffer a significant loss." Id. at 10. In these circumstances, the Arbitrator found that the establishment of four competitive levels for firefighters did not violate the parties' agreement or the FPM, and the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator misinterpreted and/or relied on misleading testimony. Specifically, the Union disputes statements of the Arbitrator regarding: (1) the inclusion of competitive levels in firefighters' job descriptions; (2) the extent to which qualifications of Field Stage and Fixed Station firefighters are interchangeable; (3) differences in retention registers which would result from use of one competitive level; and (4) the effect of seniority in a RIF. The Union also contends that the Arbitrator misinterpreted FPM Supplement 351-1 and relied on testimony concerning qualifications for the Hazardous Material classification which conflicts with applicable regulations.
The Agency contends that the Union's exceptions do not provide a basis for finding the award deficient.
IV. Analysis and Conclusions
A. The Award Is Not Based on Nonfacts
We construe the Union's contentions that the Arbitrator misinterpreted and/or relied on misleading testimony as a claim that the award is based on nonfacts. In order to establish that an award is deficient on this ground, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1372 (1993). However, exceptions constituting mere disagreement with an arbitrator's factual findings and determinations on disputed or ambiguous evidence do not demonstrate that an award is deficient. See 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).
In this case, the Arbitrator found, based on his evaluation of the record, that the Agency's establishment of four competitive levels for firefighters did not violate FPM Supplement 351-1. Although the Union disputes certain arbitral findings and statements, the Union has not established that any of the disputed findings or statements are clearly erroneous or were central to the award. Therefore, the Union has not demonstrated that the award is based on nonfacts. See, for example, U.S. Department of Defense, Defense Commissary Agency, Pearl Harbor, Hawaii and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 48 FLRA 476, 478 (1993).
B. The Award is Not Contrary to Law, Rule, or Regulation
The Union contends that the Arbitrator misinterpreted FPM Supplement 351-1. The Union argues that the Arbitrator should have interpreted FPM Supplement 351-1 as requiring the Agency to establish one competitive level for firefighters.
As set forth previously in footnote 2, FPM Supplement 351-1 subchapter 3-3.a, provides that a competitive level consists of positions in a competitive area that are "[s]imilar enough in duties, qualification requirements . . . so that the incumbent of one position can successfully perform the critical elements of any other position in the level upon assignment to it, without any loss of productivity beyond that normally expected in the orientation of any new . . . employee." In this case, the Arbitrator concluded, based on the record before him, that the firefighter positions in each of the four competitive levels required unique skills and specialized training. The Arbitrator also concluded that establishing one competitive level could result in undue interruption to the Agency's work because "more than orientation would be required" of a firefighter moving from one competitive level to another. Award at 9.
The Union has not demonstrated that, in view of the Arbitrator's findings, the award conflicts with FPM Supplement 351-1. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's findings of fact and his evaluation of the record and provides no basis for finding the award deficient. See National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, New Mexico National Guard, Albuquerque, New Mexico, 45 FLRA 1045, 1049 (1992).
The Union also claims that the testimony of an Agency witness that it takes 2 years of training for a firefighter to qualify for the Hazardous Material classification is contrary to regulations of the Occupational Safety and Health Administration.(5) We disagree. The cited regulation addresses the establishment of safety programs and training for employees involved in hazardous waste operations. The regulation does not purport to establish qualification requirements for firefighters and the Union has not demonstrated that the award is in any way inconsistent with the regulation. As such, 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 (1992).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. On December 31, 1993, the FPM was abolished and succeeded by a Provisional System which will "sunset" on December 31, 1994. See FPM Sunset Document at 1. The FPM Sunset Document outlines the FPM material that was abolished and the FPM material that is being provisionally retained through December 31, 1994. FPM Supplement 351-1, Reduction in Force was provisionally retained by the FPM Sunset Document. Id., Summary Table at 7.
2. FPM Supplement 351-1, subchapter 3-3.a, defines and provides the following, in pertinent part, with respect to competitive levels:
a. General. Each agency must establish competitive levels, i.e., groups of similar positions, and assign each position to a level. Employees compete for retention in their competitive levels during the first round of RIF competition.
(1) Characteristics of competitive levels. A competitive level consists of positions in the competitive area that are:
(a) In the same grade (or occupational level);
(b) In the same classification series; and
(c) Similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position can successfully perform the critical elements of any other position in the level . . . without any loss of productivity beyond that normally expected in the orientation of any new . . . employee. This determination is made on the basis that the jobs are so similar that the agency may readily assign an employee in one position to any of the other positions in the competition level without . . . unduly interrupting the agency's work program.
3. The Arbitrator set forth Article 20 of the parties' agreement, entitled "Reductions In Force," but did not discuss any particular portions of the article which the Agency allegedly had violated.
4. FPM Supplement 351-1, subchapter 2-1.v, defines "undue interruption" as follows, in pertinent part:
Undue interruption means a degree of interruption that would prevent the completion of required work within the allowable limits of time and quality, taking into account the pressures of priorities, deadlines, and other demands. A work program probably would be unduly interrupted if an employee needed more than 90 days after the reduction in force to successfully perform the critical elements of a position.
5. The Union relies on 29 C.F.R. § 1910.120(e), which provides, in part, as follows:
(e) Training - (1) General. (i) All employees working on site . . . exposed to hazardous substances . . . shall receive training meeting the requirements of this paragraph before they are permitted to engage in hazardous waste operations that could expose them to hazardous substances, safety, or health hazards . . . .
. . . .
(3) Initial training. (i) General site workers . . . engaged in hazardous substance removal or other activities which expose or potentially expose workers to hazardous substances and health hazards shall receive a minimum of 40 hours of instruction off the site, and a minimum of thre