Professional Airways Systems Specialists (Union) and U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Auburn, Washington (Agency)

[ v56 p128 ]

56 FLRA No. 13

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NORTHWEST MOUNTAIN REGION
AUBURN, WASHINGTON
(Agency)

0-AR-3237

_____

DECISION

February 29, 2000

_____

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

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Richard B. Peterson 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 determined that the Agency's memorandum on mandatory lunch periods did not constitute a change in past practice and denied the grievance. We conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The parties submitted to arbitration the stipulated issue of whether the Agency's memorandum on mandatory lunch periods constituted a change in past practice such that notice to the Union and an opportunity to bargain was required under Article 69 of the parties' collective bargaining agreement. The Arbitrator denied the grievance. He ruled that the memorandum did not change any past practice. Examining the parties' collective bargaining agreement and the number of employees working without a lunch period, the Arbitrator found that there was no practice of work without lunch periods "of sufficient magnitude to convert it to a condition of employment." Award at 16. Consequently, he ruled that no notice and bargaining were required under the agreement as a result of the memorandum.

III.     The award is not deficient as failing to draw its essence from the agreement.

A.     Positions of the Parties

      The Union contends that the award is deficient because it fails to draw its essence from the agreement. The Union argues that the Arbitrator's determination that a past practice did not exist disregards the agreement. The Agency argues that the Arbitrator's determination is consistent with the intent and meaning of the agreement.

B.     Analysis and Conclusions

      In reviewing an arbitrator's interpretation of the agreement, we apply the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See American Federation of Government Employees, Local 3369 and Social Security Administration, New York Region, New York, New York, 55 FLRA 1074, 1077 (1999). Under this standard, we will find an award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) the award does not represent a plausible interpretation of the agreement; or (4) the award evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (OSHA). The courts and the Authority defer to the arbitrator's interpretation "because it is the arbitrator's construction of the agreement for which the parties have bargained." See id. at 576.

      In this case, the Arbitrator determined that there was no practice of work without lunch periods of sufficient magnitude to constitute a past practice and that no notice and bargaining were required under Article 69 of the agreement as a result of the memorandum. The Union fails to establish that the Arbitrator's determination is irrational, implausible, or unfounded or disregards the agreement. Accordingly, the Union provides no basis for finding the award deficient, and we deny this exception. See OSHA, 34 FLRA at 575; Letterkenny Army Depot and National Federation of Federal Employees, Local 1429, 5 FLRA 272, 274 (1981) (by arguing that the award was deficient because the arbitrator failed to find that a past practice existed, the union was disagreeing with the arbitrator's interpretation [ v56 p125 ] of the parties' aggregate collective bargaining agreement, which includes the practices of the parties in addition to its express provisions; Authority denied the exception because it concerned the construction of the agreement, which did not fail to draw its essence from the agreement).

IV.     The award is not deficient as based on a nonfact.

A.     Positions of the Parties

      The Union contends that the award is deficient because it is based on a nonfact. The Union argues that the Arbitrator's assumption that the asserted practice of work without lunch periods was not nationwide is based on a nonfact. The Agency argues that the award is not deficient.

B.     Analysis and Conclusions

      To establish that an award is deficient as 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). However, we will not find an award based on a nonfact with respect to an arbitrator's determination on any factual matter that the parties disputed at arbitration. See id. at 594.

      The Union challenges the Arbitrator's determination that there was no practice of work without lunch periods of sufficient magnitude to constitute a past practice. As the existence of a past practice was disputed before the Arbitrator, the Union fails to establish that the award is based on a nonfact. Accordingly, we deny this exception.

V.     The award is not contrary to law.

A.     Positions of the Parties

      In contending that the award fails to draw its essence from the agreement, the Union contends that the Arbitrator's determination that there was no past practice is contrary to "the law concerning the definition of past practice." Exceptions at 4. We construe this as a separate exception, which contends that the award is deficient because it is contrary to law. In opposition, the Agency argues that the Arbitrator properly determined that there was no past practice.

B.     Analysis and Conclusions

      When an exception involves the award's consistency with law, we review any question of law raised by the exception and the 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). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. In making that assessment, we defer to an arbitrator's factual findings and interpretation and application of the collective bargaining agreement. See National Treasury Employees Union, Chapter 168 and U.S. Department of the Treasury, Customs Service, Port of Baton Rouge, Louisiana, 55 FLRA 237, 241 (1999).

      We find that the Union's reliance on law as a basis for a deficiency in the Arbitrator's award is misplaced. Based on the award as whole, we conclude that the Arbitrator interpreted the parties' collective bargaining agreement, and not the Statute, in finding that the number of instances of deviation from the agreement were insufficient to establish a past practice. As the rejection of a past practice was based on the Arbitrator's interpretation and application of the agreement, this exception provides no basis for finding that the award is contrary to law. [n1]  See U.S. Department of the Navy, Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 48 FLRA 679, 684 (1993) (exception, which contended that the arbitrator's rejection of an alleged past practice was contrary to Authority precedent, was denied because it concerned the arbitrator's interpretation and application of the collective bargaining agreement); U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 398 (1991) (exception, which contended that an award was contrary to law because it failed to follow Authority case law on past practice, was denied because the arbitrator considered the practices of the parties only to interpret the parties' collective bargaining agreement); cf. U.S. Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado</