American Federation of Government Employees, Local 3369 and Social Security Administration, New York Region 1, Yonkers, New York

[ v55 p1290 ]

55 FLRA No. 205

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3369
(Union)

and

SOCIAL SECURITY ADMINISTRATION
NEW YORK REGION 1, YONKERS, NEW YORK
(Agency)

0-AR-3186

_____

DECISION

January 28, 2000

_____

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

Decision by Chair Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Mary P. Bass 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.

      The Arbitrator found that the Agency's reprimand of the grievant for insubordination was for just cause. The Arbitrator also found that a Memorandum of Understanding (MOU) between the parties did not preclude the Agency from assigning certain duties to the grievant. Accordingly, she denied the grievance.

      For the reasons that follow, we find that the Union has not demonstrated that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant, who speaks Spanish fluently, encumbers a position that does not require him to perform bilingual duties. At a time when no other bilingual employees or volunteers were present in the office, the grievant's supervisor directed him to interpret an interview for a Spanish-speaking claimant. When the grievant refused, he was reprimanded for insubordination. He filed a grievance, which was submitted to arbitration.

      The parties agreed that there were two issues before the Arbitrator: (1) "Was the reprimand . . . for just and sufficient cause? If not, what shall the remedy be?"; and (2) "Should [the grievant] have been required to use his bilingual skills to interpret for a client of the [Agency]? If not, what shall the remedy be?" Award at 2.

      With regard to the first issue, the Arbitrator found that the grievant's behavior was not motivated by a medical condition, which the grievant claimed required him to avoid stress, but was motivated by the grievant's belief that his position description (PD) did not require him to interpret. The Arbitrator found that this was an insufficient reason to refuse a direct order, and she concluded that the reprimand was for just cause.

      On the second issue, the Arbitrator found that, although the grievant was a qualified interpreter within the meaning of section GN00203.0112C of the Agency's Operations Manual, the grievant was covered by a non-bilingual PD. The Arbitrator further found that management has the right to assign duties to employees, even where such duties are not covered by the employees' PDs.

      The Arbitrator rejected the Union's argument that the parties' MOU and a Statement of Management Intent issued in connection with the MOU, taken together, constitute an appropriate arrangement that precludes the assignment of bilingual duties to employees who are covered by non-bilingual PDs. In this regard, the Arbitrator found that neither document addresses the status of employees who do not elect to be covered by a bilingual PD. The Arbitrator concluded that, although she had the authority to enforce arrangements for employees adversely affected by management's rights, there was "no provision here that constitutes an arrangement for the non-bilingual position." Id. at 10. Accordingly, she denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award is based on two nonfacts. First, the Union contends that the Arbitrator erroneously found that the grievant is a qualified interpreter. In this connection, the Union asserts that, if the grievant had performed the assigned translation, then he would have violated the Agency's regulations defining who can serve as a qualified interpreter. Second, the Union claims that the Arbitrator erroneously found that, at the time of the incident giving rise to the grievance, the Agency was not aware of the health effects of the grievant's Bell's Palsy. [ v55 p1291 ]

      The Union also contends that "the award does not draw its essence from the parties' collective bargaining agreement and that the Arbitrator reached a conclusion totally contrary to the facts of the case." Exceptions at 9. In this connection, the Union asserts that the Arbitrator erroneously found that the grievant is a Title II Service Representative when, in fact, the grievant performs both Title II and Title XVI functions. The Union also asserts that the grievant's supervisor had options other than requiring the grievant to translate, including contacting the Spanish Foundation for assistance, and that the award violates Articles 4 and 5 of the parties' collective bargaining agreement. [n1] 

      Finally, the Union argues that the award is contrary to law on two grounds. First, the Union asserts that the Arbitrator improperly made a negotiability determination. In this connection, the Union asserts that, even assuming that the MOU would be found nonnegotiable as a proposal, nonnegotiable proposals are nonetheless enforceable once parties have agreed to them. Exceptions at 11-12 (citing U.S. Department of the Air Force, MacDill Air Force Base, Florida and National Federation of Federal Employees, Local 153, 38 FLRA 74 (1990) (MacDill), and U.S. Department of the Air Force, Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 41 FLRA 1304 (1991) (Warner Robins)). The Union also claims that the Arbitrator improperly refused to enforce the MOU and Statement of Management Intent, which, according to the Union, constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. Second, the Union asserts that the award is contrary to "governmentwide regulations." Exceptions at 11.

B.     Agency's Opposition

      The Agency argues that the Union failed to raise, before the Arbitrator, the issue of who constitutes a qualified interpreter, and thus, should not be allowed to raise it here. In addition, according to the Agency, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement. Finally, the Agency argues that there is "no reasoning or logic" to the Union's contention that the Arbitrator improperly made a negotiability determination. Opposition at 2.

IV.     Analysis and Conclusions

A.     The Award Is Not Based on Nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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 (1993). In addition, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union's first nonfact exception is that the Arbitrator erred in finding that the grievant is a qualified interpreter. Although the Arbitrator found that the grievant is a qualified interpreter, Award at 3, the Arbitrator did not rely on that finding in determining that the Agency had the right to assign him the duties involved here. Additionally, as nothing in the regulation relied on by the Union indicates that the Agency may assign translation duties only to qualified interpreters, and as the Union cites no other pertinent authority, the Union has not demonstrated that the grievant would have violated Agency regulations by performing the assigned translation. As such, the Arbitrator's statement that the grievant is a qualified interpreter does not constitute a central fact underlying the award, and the Union's exception does not demonstrate that the award is based on a nonfact. [n2] 

      In its second nonfact exception, the Union claims that the Arbitrator erred in finding that the Agency was unaware, at the time of the incident giving rise to the grievance, of the health effects stress had on the grievant as a result of Bell's Palsy. However, a review of the award reveals that the Arbitrator did not make any findings regarding whether or not the Agency was aware of the grievant's Bell's Palsy at that time. As such, the Arbitrator's alleged error in this regard does not constitute a central fact underlying the award, and the Union's exception does not demonstrate that the award is based on a nonfact.

      We construe as a nonfact argument the Union's claim that the award is "contrary to the facts of the case" because the Arbitrator erred by finding that the grievant [ v55 p1292 ] was a Title II Service Representative. Exceptions at 9. Even assuming that the Arbitrator made a factual error in this regard, the Arbitrator did not rely on the grievant's job classification in determining that the Agency had the right to assign him the duties involved here. Further, the Union does not explain how this alleged error relates to the Arbitrator's denial of the grievance. As such, the alleged factual error is not a central fact underlying the award, and the Union's exception does not provide a basis for finding the award deficient.

      Accordingly, we deny the Union's nonfact exceptions.

B.     The Award Does Not Fail to Draw its Essence from the Parties' Agreement.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997), citing, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

      Although the Union argues that the grievant's supervisor had options other than requiring the grievant to translate, the Union does not cite anything in either the parties' collective bargaining agreement or the MOU requiring the Agency to exhaust such options before the grievant could be assigned interpreting duties. As such, it has not established that the Arbitrator's finding that the supervisor properly assigned such duties to the grievant is unfounded, irrational, implausible, or manifests a disregard of the parties' collective bargaining agreement or the MOU.

      The Union also argues that the award conflicts with Articles 4 and 5 of the parties' collective bargaining agreement, which concern, respectively, how negotiations over management-initiated changes will be conducted, and how supplemental agreements and MOUs will be treated under the agreement. However, the Union does not explain how the award relates to, or is inconsistent with, Articles 4 or 5 of the parties' agreement. As such, the Union's exception does not provide a basis for finding that the award fails to draw its essence from Articles 4 and 5.

      Accordingly, we deny the Union's exception.

C.     The Award Is Not Contrary to Law.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     The Award Is Not Contrary to Section 7106 of the Statute.

      The Union argues that the Arbitrator improperly made a negotiability determination, and that she improperly refused to enforce the MOU and Statement of Management Intent. The Union relies on MacDill, 38 FLRA 74, which involved a contract provision that prohibited management from assigning certain work to employees, and Warner Robins, 41 FLRA 1304, where an arbitrator refused to enforce a particular contract provision.

      The Union's arguments mischaracterize the Arbitrator's reasoning. The Arbitrator did not find either that an MOU precluding management from assigning bilingual duties would be unenforceable, or that a proposal imposing the same limitation would not be negotiable. Rather, the Arbitrator found that the MOU and Statement of Management Intent do not address these issues. As such, the Union's reliance on MacDill and Warner Robins is misplaced.

      The Union's argument does not provide a basis for finding the award deficient, and we deny the exception. [ v55 p1293 ]

2.     The Award Is Not Contrary to Government-wide Regulations.

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