51:0714(60)AR - - AFGE, Local 1668 and Air Force, Elmendorf AFB, Anchorage, AK - - 1995 FLRAdec AR - - v51 p714
[ v51 p714 ]
The decision of the Authority follows:
51 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
ELMENDORF AIR FORCE BASE
December 22, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert W. Landau 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 Regulations. The Agency filed an opposition to the Union's exceptions.(1)
The Arbitrator determined that the Union's grievance was not arbitrable under section 7121(c)(5) of the Statute or the parties' collective bargaining agreement because it concerned the classification of the grievant's position. For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute and, therefore, we deny the Union's exceptions.
II. Arbitrator's Award
Prior to the classification review giving rise to this case, the grievant was a WG-10 Boiler Plant Equipment Mechanic at the Agency's Central Heat and Power Plant. After the grievant was assigned additional welding responsibilities, the Union filed a grievance requesting that the grievant's position description be revised to reflect the additional welding responsibilities and that his position be reclassified as a result. The Union also requested back pay from the date on which the additional welding duties were first assigned, in the event that the reclassification resulted in a grade increase.
The Agency conducted a classification review and created a new WG-11 Mechanic/Welder position to which the grievant was promoted. Nevertheless, the Union continued to seek back pay for the grievant. When this aspect of the grievance was not resolved, it was submitted to arbitration on the following issues, as stated by the Arbitrator:
1. Is the grievance procedurally arbitrable?
2. Is the grievance substantively arbitrable?
3. If the grievance is arbitrable, is the grievant entitled to back pay for performing work in a higher job classification?
Award at 3.
The Arbitrator first found that the grievance was procedurally arbitrable. In so finding, the Arbitrator acknowledged that Article 8, Section 6 of the parties' collective bargaining agreement provides that all grievances must be filed within 30 calendar days of the events underlying the grievance or the date that the grievant became aware of such events. The Arbitrator concluded, however, that the grievance was "continuing and ongoing" for as long as the grievant performed this work. Id. at 9. The Arbitrator further concluded that the time limitation set forth in Article 8, Section 6 of the parties' agreement would restrict the Agency's back pay obligation to 30 days immediately preceding the date on which the grievance was filed.
The Arbitrator next addressed the substantive arbitrability of the grievance. The Arbitrator found that both section 7121(c)(5) of the Statute and the parties' agreement exclude grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee." The Arbitrator noted that, in this case, the grievance initially requested that the grievant's position description be revised, that his position be reclassified, and that the grievant be awarded back pay. The Arbitrator concluded that, because resolution of the back pay issue would require him to determine the correct grade level of the additional welding duties performed by the grievant during the time period alleged, the grievance concerned classification and was not substantively arbitrable. In arriving at this conclusion, the Arbitrator specifically rejected the Union's reliance on U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795 (1991) (Cherry Point). The Arbitrator found that decision distinguishable because the grievant in Cherry Point was not seeking reclassification and because the parties' bargaining agreement in Cherry Point "expressly authorized compensation for performing duties in a higher classification." Award at 11.
Finally, the Arbitrator concluded that the grievant would not be entitled to back pay even if the grievance was substantively arbitrable. In reaching this conclusion, the Arbitrator found that the grievant had not been affected by any personnel action resulting in the withdrawal or reduction of his pay and that the Back Pay Act does not apply to reclassification actions. The Arbitrator rejected the Union's claim that the grievant had performed an "unofficial" detail and/or temporary promotion which entitled him to retroactive back pay under Article 29 of the parties' bargaining agreement.(2) The Arbitrator stated that although a classification review triggered by Article 29 could result in a prospective reclassification or promotion, nothing in Article 29 authorized retroactive compensation or promotion.
A. Union's Contentions
The Union claims that the award is deficient because the Arbitrator failed to address whether the Agency violated Article 27, Section 2 of the parties' agreement.(3) The Union also claims that it "files not against interpretation but against omission of Article 29, Section 2." Exceptions at 2 (emphasis omitted). The Union maintains in this regard that, like the relevant contract provision in Cherry Point, Article 29, Section 2 constitutes an "entitlement to compensation for performing work in a higher graded position." Id. The Union also argues that the Arbitrator "re-define[d]" Article 8, Section 6 of the parties' bargaining agreement by concluding that the time limitation set forth in that provision restricted the grievant's back pay claim to 30 days preceding the date on which the grievance was filed. Id. at 1.
B. Agency's Opposition
The Agency maintains that the Union has not provided any explanation of the relationship between Article 27 of the parties' agreement and the grievance at issue in this case. The Agency points out that a revision of the grievant's position description had already been accomplished by the time of the arbitration. In addition, the Agency argues that the Arbitrator correctly concluded that the grievant had not been temporarily promoted and that the gravamen of the grievance concerned the classification of the grievant's position. The Agency submits that the Arbitrator's interpretation of Article 8, Section 6 is both reasonable and consistent with prior Authority precedent, and that the Arbitrator correctly distinguished the facts of the present case from those of Cherry Point.
IV. Analysis and Conclusions
A. Arbitrator's Authority
We construe the Union's claims that the award is deficient because the Arbitrator failed to address specific provisions of the parties' bargaining agreement as contentions that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305 (1995).
It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995). In this case, there is no indication in the record that the parties stipulated the issues to be resolved, and the issues as formulated by the Arbitrator did not encompass Article 27, Section 2. Moreover, a review of the award reflects that the award is directly responsive to the issues as formulated by the Arbitrator.
To the extent that the Union contends that the Arbitrator erred by failing to address Article 29, Section 2 of the parties' agreement, we find that this contention provides no basis for finding the award deficient. The Arbitrator did, in fact, address Article 29 and although he did not specifically cite Section 2, a review of the award shows that he both considered and discussed it. Therefore, the Arbitrator did not exceed his Authority with regard to this issue. See 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) (fact that an award does not address specific provisions of an agreement does not establish that such provisions were not considered by the Arbitrator and does not provide a basis for finding the award deficient). Insofar as the Union is arguing that the Arbitrator's interpretation of Article 29 fails to draw its essence from the parties' bargaining agreement, we will address this contention below.
We construe the Union's contention regarding Article 8, Section 6 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990).
The Union has not demonstrated that the award satisfies any of these tests. Nothing in the Arbitrator's conclusion that the time limitation set forth in Article 8, Section 6 of the parties' agreement restricted the grievant's back pay claim to 30 days preceding the date on which the grievance was filed, is irrational, unfounded, implausible, or in manifest disregard of the agreement. Moreover, to the extent that the Union is arguing that the Arbitrator incorrectly interpreted Article 29 of the agreement, the Union has not shown that the Arbitrator's interpretation of this provision and his finding that it did not authorize retroactive compensation or promotion, is irrational, unfounded, implausible or in manifest disregard of the agreement.
In addition, the Arbitrator concluded that the substance of the grievance concerned the classification of the grievant's position within the meaning of section 7121(c)(5) of the Statute and, therefore, was outside his jurisdiction. Inasmuch as his additional finding that any award of back pay would be limited by the 30 day time period set forth in Article 8, Section 6, does not affect and is not related to his award on the substantive arbitrability of the grievance, the Union's exception thereto forms no basis on which to find the award deficient. See, e.g., American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA No. 50 (1995) (comments or dicta are statements separate from the award and exceptions thereto provide no basis for finding an award deficient).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. In its opposition, the Agency maintains that the Union's exceptions were not timely filed. However, the Agency erred in calculating the due date of the exceptions by failing to include the 5 days permitted under section 2429.22 of the Authority's Regulations because of service by mail. Accordingly, this argument is without merit.
2. Article 29 provides, in relevant part:
Section 2. When a higher graded position is to be filled by a lower graded employee and the duration exceeds 30 days, a temporary promotion will be effected in lieu of detail.
* * *
Section 6. Whenever an employee has accumulated 30 days' experience on short-term detail to a position in a different job series within a 12 month period, the employee may submit a supplemental experience and qualification statement to the Civilian Personnel Office setting forth this experience.
3. Article 27, Section 2 provides that