51:1634(135)AR - - Sport Air Traffic Controllers Organization and Air Force, HQ, Air Force Flight Test Center, Edwards AFB, CA - - 1996 FLRAdec AR - - v51 p1634

[ v51 p1634 ]
The decision of the Authority follows:

51 FLRA No. 135














July 26, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator L. Lawrence Schultz 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.

The Arbitrator denied the Union's grievance claiming that the Agency had violated the parties' collective bargaining agreement by designating an attorney from its legal department to represent the Agency in unfair labor practice proceedings before the Authority.

For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

On April 28, 1995, the Union filed an unfair labor practice (ULP) charge with the Authority.(1) On May 27, the Agency designated an attorney from the Air Force legal department, located in Arlington, Virginia, as its representative regarding the charge. On May 30, the Union filed a grievance alleging that the Agency had violated Article 31, Section 2 of the parties' collective bargaining agreement by designating the attorney, instead of a second level supervisor located at the Agency, as the parties' agreement requires.(2)

In support of its grievance, the Union maintained that Article 31, Section 2 provides that the Agency's second level supervisor is to be the Agency's representative regarding any ULP charge between the parties. The Union further argued that if the Agency's representative desires to designate someone to act on his or her behalf, Article 31, Section 2 requires that the designation be accomplished in the same manner and within the same constraints as those set forth in Article 29, Section 1b.(3)

When the grievance was not resolved, it was submitted to arbitration on the following issue, as formulated by the Arbitrator:

Did the appointment, by the Agency, of [an attorney from its legal department] to represent it in a Matter involving [the Union] violate applicable provisions of the Agreement to which each party is a signatory? If so, what shall be the remedy?

Award at 5.

The Union argued before the Arbitrator that nothing in the parties' agreement "limits the Second Level Supervisor['s] participation in the procedure pertinent to any Unfair Labor Practice charge." Id. at 3. In response, the Agency urged the Arbitrator to note the distinction between the terms "charge" and "complaint" and asserted that, by its terms, Article 31, Section 2 applies solely to the procedural steps that the parties established to promote the informal settlement of ULPs.

The Arbitrator concluded that the Agency did not violate Article 31 of the parties' agreement. In so concluding, the Arbitrator found that the language of Article 31 pertains to "any ULP charge." Id. The Arbitrator further found that Article 31 does not "mention . . . representation in a complaint proceeding." Id. Having rejected the Union's contention that Article 29, Section 1 was relevant to resolving the instant grievance, and noting that "[c]lear and unambiguous contract language is dispositive of an issue[,]" Award at 6, the Arbitrator denied the grievance.

III. Exceptions

A. Union's Contentions

The Union claims that the award is deficient because it "violates and emasculates" Article 31, Section 2 of the parties' agreement. Exceptions at 1. Specifically, the Union maintains that the Arbitrator failed to grasp the difference between a "charge" and a "complaint[,]" as these terms are applied in Authority proceedings, and further failed to read the "clear and unambiguous contract language of Article 31[.]" Id. at 3. The Union claims that, as a result, the Arbitrator did not understand the crux of the grievance and, therefore, erred in both framing and resolving the issue submitted to arbitration.

In support of its exceptions, the Union explains that it filed the grievance 5 months before the ULP complaint was issued. The Union further explains that, under Authority procedure, the underlying allegation was an informal charge until issuance of the complaint. As the Agency's appointment of the attorney preceded the issuance of the formal complaint, the Union contends that the Agency violated Article 31, Section 2. Accordingly, noting particularly that the Arbitrator would not clarify his award with regard to the terms "charge" and "complaint," the Union requests that the award be set aside.(4)

B. Agency's Opposition

The Agency asserts that the Union has failed to demonstrate that the Arbitrator's award is deficient on any of the grounds set forth in section 2425.3(a)(1) or (2) of the Authority's Regulations.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

We construe the Union's contention that the Arbitrator erred in framing and resolving the issue in this case as an assertion that the Arbitrator exceeded his authority by resolving an issue that was not submitted to arbitration. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not 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, 307-08 (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 U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996) (Defense Contract Audit Agency). An arbitrator is granted the same broad discretion to fashion appropriate remedies for contract violations. Id. at 1164-65.

In this case, the parties did not stipulate the issue to be resolved and the award, including the remedy, is directly responsive to the issue as framed by the Arbitrator. Consequently, the Union has failed to establish that the Arbitrator exceeded his authority.

B. The Award Draws Its Essence From The Agreement

We construe the Union's claim that the award is deficient because it "violates and emasculates" Article 31, Section 2 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, the party making the allegation must show that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

The Union has not demonstrated that the award is deficient under any of these tests. In this connection, we note that the procedure set forth in Article 31 was intended "to expedite and promote" the settlement of ULPs by "allow[ing] the parties closest to the labor-management problem to deal with the problem firsthand." Union Attachment 9 at 18. This intent is evidenced in Section 1, which provides that any ULP charge must first be presented to the Union's designated representative before a "formal" ULP charge is filed with the Authority. Id. at 17. Section 2 then identifies each party's designated representative and, as the Union asserts, specifically provides that the second level supervisor is to be the Agency's designated representative "regarding any [ULP] charge between the parties." Id. at 17-18.

The Arbitrator does not explicitly state the basis for his award. However, it is apparent from the Arbitrator's conclusion that the parties' agreement does not mention representation in a "complaint proceeding," award at 5, that he determined that Article 31 of the parties' agreement pertains only to the settlement of ULP charges that have not yet been filed with the Authority. Nothing in this conclusion is irrational, unfounded, implausible, or in manifest disregard of the agreement. Accordingly, we find that the Union has failed to establish that the award fails to draw its essence from the parties' agreement. See, e.g., Defense Contract Audit Agency, 51 FLRA at 1164.

V. Decision

The Union's exceptions are denied.

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

1. All dates are in 1995.

2. Article 31, entitled Unfair Labor Practices, provides in pertinent part:

Section 1. The Parties agree the basis for any Unfair Labor Practice Charge (ULP) shall first be submitted in writing by the concerned employee or charging party to the Union's representative or the Employer's representative identified in Section 2. If the ULP charge is not resolved within 10 . . . calendar days following receipt, the employee o[r] charging party may proceed to the Federal Labor Relations Authority with the formal ULP charge.

Section 2. The Parties agree that the SATCO Union President is the Union's representative regarding any Unfair Labor Practice charge between the Parties. The Parties agree that the SPORT MRU/RAPCON Second Level Supervisor is the [Agency's] repre