U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia (Agency) and American Federation of Government Employees, Local 987 (Union)

[ v56 p498 ]

56 FLRA No. 78

U.S. DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
(Union)

0-AR-3256

_____

DECISION

July 21, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

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 John J. Smith, Jr., filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated a Federal Service Impasses Panel ("Panel") decision by failing to implement a contract provision that had been imposed by that decision. As a remedy, the Arbitrator ordered the Agency to implement the provision. For the reasons set forth below, we deny the Agency's exceptions.

II.     Background and Arbitration Award

A.     Background

      In 1994, the Agency decided to implement a Multiskill Training Program (the "MTP") for its employees. The intent of the MTP was to allow journeyman-level employees to be trained in additional skills and trades to enable them to perform a wider variety of functions. The Agency negotiated to impasse with the Union over its decision to implement the MTP. The parties then each submitted a "final offer[,]" representing their respective preferences for defining the MTP, to the Federal Service Impasses Panel. See Department of the Air Force, Wright-Patterson Air Force Base, Headquarters, Air Force Materiel Command, Wright-Patterson AFB, Ohio and Council 214, American Federation of Government Employees, AFL-CIO, 97 FSIP 88, at 1 (1997) (Wright-Patterson AFB). The Panel was charged with "resolv[ing] the impasse on a package basis by selecting one of the parties' final offers[.]". Id. at 1-2. On November 12, 1997, the Panel issued a decision and order, which provided that "[t]he parties shall adopt the Employer's final offer," which represented "the more reasonable approach for implementing the MTP." Id. at 13, 11. The provision imposed by the Panel is set forth in the decision as a Memorandum of Agreement ("MOA") between the parties. See id. at Appendix B. In reference to the Panel's decision, the Agency's Chief of Labor Relations (HQ) wrote the Agency a letter ("Agency letter") on November 20, 1997, which stated that "[y]ou now may proceed with implementation of the MTP consistent with the provisions contained in the [Panel decision and order]." Arbitration Award ("Award") at 2. [n1] 

      The Agency did not implement the MOA imposed by the Panel. On September 11, 1998, the Union filed a grievance alleging that the Agency had violated the parties' MOA. The Union described "the incident causing [the] grievance" as "`[m]anagement in TI [Technology and Industrial Support] . . . are multiskilling employees[.]'" Award at 3 (quoting grievance). In terms of a remedy, the Union requested "`[f]ull compliance with [the] MOA concerning multiskilling.'" Id.

B.     Arbitration Award

      The parties did not agree on a joint stipulation of the issue and submitted separate issues to the Arbitrator with the understanding that he would frame the issue. [n2] The Arbitrator framed the issue as follows:

Whether or not the Agency [ ] has the discretion to implement or not implement the Memorandum of [ v56 p499 ] Agreement under the Federal Service[ ] Impasses Decision and Order pertaining to the Multiskill Training Program. If not, what is the remedy? [ ] Is the above-referenced issue arbitrable?

Award at 4.

      As a preliminary matter, the Arbitrator addressed the Agency's contention that section 7.06 of the parties' agreement limited the Arbitrator to addressing only the "narrow issue" presented by the grievance, which concerned whether the Agency violated the procedures contained in the MOA. Award at 5. Specifically, the Agency argued that it could not have violated the procedures contained in the MOA because it "`has yet to implement the Panel's decision[.]'" Id. (quoting the Agency). In response to that argument, the Arbitrator found, "under the facts" of the case and "from the Union's written grievance," that "the Agency was put on notice that the Union remedy was for the Agency to comply with (implement) the MOA pertaining to [the] MTP as per the [Panel's] Decision and Order." Id. The Arbitrator concluded that the issue, as framed by him, was arbitrable.

      On the merits of the case, the Arbitrator rejected the Agency's contention that it had discretion not to implement the MOA. Instead, the Arbitrator determined that the Panel ordered the Agency to implement the MOA. In making that determination, the Arbitrator made the following findings: (1) the Panel adopted the Agency's MTP proposal because the Agency "represented to the Panel [that] it had made a decision to implement MTPs at all locations and that, in a time of less resources and corporate downsizing, the Agency needed the MTP to survive and compete with the private sector"; (2) the language of the Panel's decision stated that "the parties shall adopt the Employer's final offer . . . . " Award at 5, 6. In addition, the Arbitrator rejected the Agency's contention that the presence of the word "may" in the November 20, 1997 Agency letter meant that implementation of the MTP was discretionary; rather, the Arbitrator held that, in the context of the letter, the word meant that the Agency "shall" have no choice but to implement the MOA pertaining to the MTP. Id. at 6. In sum, the Arbitrator concluded that the Agency violated the Panel's decision by not implementing the MOA pertaining to the MTP.

      The Arbitrator retained jurisdiction over the case until implementation of the MOA. The Arbitrator also held that, "[i]n the event that there are unique local conditions, the Agency and the Union shall negotiate and communicate with one another." Award at 7.

III.     Agency's Exceptions

      First, the Agency argues that the Arbitrator exceeded his authority by awarding relief on an issue that was not submitted by the grievance. Specifically, the Agency contends that the issue presented by the grievance concerned whether management in TI [Technology and Industrial Support] "used an on-the-job training program to `multi-skill' employees[,]" and that if the Arbitrator were to have found that the Agency violated the Panel's decision, he should have limited his remedy to TI. Agency's Exceptions ("Exceptions") at 3. In support, the Agency quotes section 7.06(a) of the parties' agreement as follows: "`[t]he arbitrator's authority is limited to deciding only the issue or issues considered in the formal grievance.'" Id. at 2. The Agency concludes that, because the scope of the Arbitrator's remedy went beyond the Agency's TI organization, the Arbitrator exceeded his authority. In support, the Agency relies on Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986).

      Second, the Agency argues that the award is based on two nonfacts. The Agency first contends that the Arbitrator misread the part of the Panel's decision that stated that "`[i]n essence, resolution of the parties' impasse in this case will allow the Employer to establish MTPs at its other locations'." Exceptions at 5, quoting Wright-Patterson AFB, 97 FSIP 88 at 1 n.1 (emphasis added). The Agency argues that the Arbitrator "misquoted the [Panel's] footnote" to read `at all its locations[,]' which formed the basis for the Arbitrator's conclusion that "the Agency does not have the discretion not to implement the MTP[.]" Id. (quoting Award at 6). Rather, the Agency argues that the Arbitrator should have read the Panel's use of the word "allow" to mean that the Agency had discretion to implement the MTP according to its local needs. Next, the Agency contends that the use of the word "may" in the November 20, 1997 Agency letter should not have been interpreted by the Arbitrator to mean that the Agency was required to implement the MTP. The Agency concludes that the Arbitrator based his award on clearly erroneous facts, but for which the Arbitrator would have reached a different result. As authority, the Agency cites General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039 (1992).

      Third, the Agency argues that the award is contrary to law. The Agency contends that, because "establishment of an MTP [is] a permissive subject" of bargaining within the meaning of 7106(b)(1) of the Statute, the Agency "is not bound by" the Panel's decision. [ v56 p500 ] Exceptions at 6. As authority, the Agency cites Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984). According to the Agency, it "exercised its discretion not to implement the [Panel's] decision" because it "lacked the resources required to support the MTP effort." Exceptions at 7. In this regard, the Agency also contends that the award "abrogates" its right to "determine its organization" under section 7106(a)(1) of the Statute. Id.

      Fourth, the Agency makes two arguments that the award does not draw its essence from the Agreement. The Agency first contends that the award is deficient because the Arbitrator "ignored the fact that" the Union failed to prove that the Agency violated the MOA. Id. In this connection, the Agency claims that the language of the MOA applies "only to positions identified under a formal MTP[,]" and requires multiskilled employees to be journeymen. Id. (emphasis in original). According to the Agency, it did not violate the MOA because the Union did not demonstrate that the Agency multiskilled an employee into a formally designated MTP position, or that any such employee was a journeyman, or that any evidence was submitted to document that multiskilling occurred in TI. Next, the Agency contends that the award is deficient because the Arbitrator disregarded the remedial powers granted to him by section 7.06(a) of the parties' agreement. In this connection, the Agency argues that section 7.06(a) limited the Arbitrator to resolving only the issue presented by the grievance, which concerned whether employees were multiskilled in the Agency's TI organization. The Agency concludes that, because the scope of the Arbitrator's remedy went beyond the Agency's TI organization, the award fails to draw its essence from the parties' agreement.

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed His Authority

      The Agency argues that the Arbitrator exceeded his authority by awarding relief on an issue that was not submitted by the grievance. 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. American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996). In this case, the Arbitrator stated that the parties did not stipulate the issues to be resolved. Accordingly, the Arbitrator formulated the issue. In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issue is given substantial deference. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command, Robins Air Force Base, Warner Robins, Georgia, 50 FLRA 160, 161-62 (1995) (Warner Robins). The Agency has not offered any basis for refusing to accord such deference in this case, and we see no reason to find the Arbitrator's description of this issue to be deficient.

      Here, the Arbitrator formulated the issue as whether the Agency had discretion to implement or not implement the Panel's decision and the MOA imposed by that decision. In finding that the Agency violated the Panel's decision, the award is directly responsive to the issue as formulated by the Arbitrator. Accordingly, we find that the Agency has failed to demonstrate that the Arbitrator exceeded his authority. See, e.g., Warner Robins, 50 FLRA at 162.

B.     The Award Does Not Fail to Draw Its Essence From the Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 56 FLRA 62, 67 (2000). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990) (OSHA).

      It is well accepted that a final action of the Federal Service Impasses Panel is incorporated into the parties' collective bargaining agreement. See, e.g., U.S. [ v56 p501 ] Department of Veterans Affairs, Medical Center, Kerrville, Texas and American Federation of Government Employees, Local 2281, 45 FLRA 457, 465 (1992) (Authority construed agency's argument that arbitrator misinterpreted Panel order as a claim that award failed to draw its essence from the parties' agreement) (VAMC Kerrville); section 7119(c)(5)(C) of the Statute ("any final action of the Panel . . . shall be binding on [the] parties during the term of the agreement, unless the parties agree otherwise."). As such, the MOA imposed by Wright-Patterson AFB is an agreement that is binding on the parties. The Agency's argument that the Arbitrator's remedy is inconsistent with the MOA is a claim that the award fails to draw its essence from the parties' agreement.

      In particular, the Agency argues that the award is inconsistent with the MOA because the Union failed to prove, and the Arbitrator failed to find, that the Agency violated the substantive terms of the MOA. The Arbitrator, however, did not frame the issue, and did not resolve the case, based upon whether the Agency violated the substantive terms of the MOA. Rather, the Arbitrator's framing of the issue concerned whether or not the Agency had discretion to implement or not implement the Panel's decision and the MOA imposed by that decision. Award at 4. The Arbitrator based his remedy upon the finding that the Panel's decision required the Agency to implement the MOA. Accordingly, as the Arbitrator did not resolve the case based upon a finding that the Agency violated the substantive terms of the MOA, the Agency's argument misconstrues the award. To the extent that the Agency argues that the terms of the MOA demonstrate that the Agency had discretion not to implement the Panel's decision, the Agency has not shown that the Arbitrator's conclusion to the contrary is unfounded, implausible, or irrational. See VAMC Kerrville, 45 FLRA at 465 (agency's exception that arbitrator's interpretation of Panel's decision failed to draw its essence from agreement failed to demonstrate that award was implausible, irrational, or unconnected to wording of the agreement). Accordingly, the Agency has not shown that the award fails to draw its essence from the MOA imposed by the Panel's decision.

      The Agency also argues that the language of section 7.06(a) of the agreement limited the Arbitrator to addressing the issue only as it was presented in the grievance, which the Agency alleges concerned only whether employees were multiskilled in the Agency's TI organization. With regard to that argument, the Arbitrator stated that "the Agency was put on notice [by the grievance] that the Union remedy was for the Agency to comply with (implement) the MOA pertaining to MTP as per the [Panel's] Decision and Order[,]" and held that his construction of the issue was consistent with his authority under the parties' agreement. Award at 5. Upon review of the award, we find that the Agency has not demonstrated that the agreement's language precluded the Arbitrator from formulating the issue as he did. Therefore, we find that the award does not reflect an irrational, implausible, or unfounded interpretation of the agreement. See OSHA, 34 FLRA at 575-77. We reject the Agency's argument that the award does not draw its essence from section 7.06(a) of the agreement.

      Based on the foregoing, the award does not fail to draw its essence from the agreement.

C.     The Award Is Not Based On Nonfacts

      To establish that an award is based on nonfacts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. 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) (Lowry AFB). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Further, an appealing party may not challenge the arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. See National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210 (1996); and National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995).

      The Agency bases its exception upon two nonfacts, but for which the Agency claims the Arbitrator would have reached a different result: first, that the Arbitrator erroneously interpreted the Panel's decision to mean that implementation of the MTP was mandatory at all Agency locations; and second, that the Arbitrator erroneously interpreted the November 20, 1997 Agency letter to mean that the Agency was required to implement the MTP. We reject both arguments. First, as noted above, an arbitrator's interpretation of a provision imposed by the Panel is essentially an interpretation of the parties' agreement. As such, the Arbitrator's interpretation of the Panel's decision cannot be disputed as a nonfact. See, e.g., U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, New [ v56 p502 ] Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 55 FLRA 1303, 1305 (2000) (the arbitrator's interpretation of an agreement between the parties cannot be challenged on the ground of nonfact). Second, the issue of the meaning of the Agency letter was disputed before the Arbitrator. As such, we find that the award may not be found deficient on that ground. See Lowry AFB, 48 FLRA at 594. Accordingly, we find that the Agency has not proven that the award was based on a nonfact.

D.     Section 2429.5 of the Authority's Regulations Bars the Agency's Contrar