United States, Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado (Agency) and American Federation of Government Employees, Local 1967 (Union)

[ v59 p540 ]

59 FLRA No. 91

UNITED STATES
DEPARTMENT OF THE AIR FORCE
UNITED STATES AIR FORCE ACADEMY
COLORADO SPRINGS, COLORADO
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1967
(Union)

0-AR-3727

_____

DECISION

December 22, 2003

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on an exception to a supplemental award of Arbitrator James A. Evenson filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      For the following reasons, we find that the award is deficient and modify the award.

II.     Background and Arbitrator's Award

      In a previous award, the Arbitrator found that the grievant "was wrongfully removed from her job." Supplemental Award at 2. The Arbitrator ordered the grievant to be restored to her previous position as soon as reasonably possible. The Agency did not except to this award. The Union subsequently filed a motion with the Arbitrator requesting an award of back pay, costs, and attorney fees.

      In ruling on the motion, the Arbitrator found that the grievant was the "victim of an unjustified and unwarranted personnel action." Id. at 1. Specifically, he found that, in a reduction-in-force, the grievant was improperly bumped from her position as a flight simulator technician. As a result of that action, the grievant "did not receive the pay raises that the position received" from the time she was removed from the position until she was reinstated as a result of the previous award. Id. Consequently, he concluded that she was entitled to back pay. In addition, he found that, in the interest of justice, she was entitled to costs and attorney fees. He determined the amount of back pay, costs, expenses, and attorney fees to which the grievant was entitled and ordered the Agency to pay the grievant that amount. The award included $948 in "costs."

III.     Positions of the Parties

A.     Agency's Exception

      The Agency notes that the Union did not request that the Agency pay all of the costs of the arbitration in its motion for back pay and attorney fees. The Agency states that the $948 represents "the [U]nion's share of arbitration costs . . . ." Exception at 3. The Agency states that, during a telephonic conference, the grievant's counsel requested that the Agency pay the Union's share of the arbitration costs. The Agency asserts in this regard that, under Article 40, Section G.d., the parties' collective bargaining agreement requires that the cost of arbitration "be borne equally by the [parties]." Id.

      The Agency contends that, in requiring the Agency to bear the full cost of the arbitration, the award "violates the plain provisions" of the parties' agreement. Id. at 4. The Agency maintains that the Arbitrator exceeded his authority because he "decided an issue that was never placed before him," specifically, interpretation of the arbitration fee-splitting provision of the agreement.Id.

B.     Union's Opposition

      The Union explains that its motion for back pay and attorney fees did not include a request for costs because the grievant had paid those expenses directly. The Union states that the $948 represents "one-half of the Arbitrator's fees." Opposition at 2. According to the Union, the grievant orally moved to supplement the motion to include costs at the telephonic hearing on the motion. The Union notes that the Agency responded to the oral motion by arguing that Article 40, Section G.d. requires that costs be shared equally by the parties. The Union asserts that the issue of costs was "timely and properly before the Arbitrator[.]" Opposition at 3.

      As to the claim that the Arbitrator's award violates the parties' agreement, the Union notes that the agreement also contains a provision that authorizes an arbitrator to "award attorney fees to the prevailing party in any case where a statute authorizes such an award." Id. According to the Union, the provision cited by the Agency only applies where there is not a prevailing [ v59 p541 ] party or where the arbitrator finds that an award of costs is not justified under an applicable statutory provision. The Union maintains that where, as in this case, an award of attorney fees is warranted under a controlling statute, the contractual provision relied on by the Agency has no effect. Specifically, the Union argues that that provision is trumped because the Arbitrator concluded that "an award of attorneys fees and related expenses is warranted under the controlling statutes[.]" Opposition at 3.

IV.     Analysis and Conclusions

      The Agency claims that the Arbitrator's award violates Article 40, Section G.d. of the parties' collective bargaining agreement. The Authority has consistently construed an exception alleging that an award violated a collective bargaining agreement as a claim that the award fails to draw its essence from the parties' agreement. See, e.g., AFGE, Local 1709, 57 FLRA 711, 713 (2002); NAGE, Local R5-188, 54 FLRA 76, 81 (1998).

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established 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 agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; and (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Authority has found that an award requiring an agency to pay all the costs and expenses of an arbitration proceeding failed to draw its essence from a contractual provision that required the arbitrator's fees and expenses to be borne equally by the parties. United States Small Business Admin., 55 FLRA 179, 182 (1999) (SBA). The contractual provision in SBA contained no exception allowing arbitrators to apportion costs and expenses based on their assessment, for example, of whether either party is clearly the losing party. Thus, the arbitrator in that case did not have any discretion to apportion costs and expenses. In that regard, SBA is distinguishable from cases in which the Authority rejected essence challenges to awards apportioning costs and expenses based upon contract provisions that did afford arbitrators such discretion. See, e.g., NFFE, Local 2030, 56 FLRA 667 (2000); NAGE, Local R14-142, 54 FLRA 14 (1998); United States Dep't of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Mo., 35 FLRA 1307 (1990).

      Here, the Arbitrator ordered the Agency to pay all the costs of the arbitration, including the disputed $948. The parties do not explain the difference in their description of what is covered by the $948. In any event, there is no dispute that the costs at issue are the costs referenced by Article 40, Section G.d. The contract provision cited by the Agency provides for such costs to be shared equally by the parties. The Union admits that the Agency argued Article 40, Section G.d. to the Arbitrator. The Union does not claim that the costs ordered by the Arbitrator are not the costs referenced in Article 40, Section G.d. Moreover, the Union cites no contract provision that affords an arbitrator discretion to apportion costs and expenses. The Union's arguments are based on provisions of the parties' collective bargaining agreement concerning attorney fees, not provisions governing the apportionment of the costs of arbitration.

      The Union's argument concerning the precedence of statutory provisions over the contract is also unavaili