United States Department of Defense, Defense Logistics Agency, and United States Department of the Air Force, Air Force Materiel Command (Agencies) and American Federation of Government Employees, Local 916 (Union)

[ v62 p134 ]

62 FLRA No. 34

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
AND
UNITED STATES
DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
(Agencies)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 916
(Union)

0-AR-4033

_____

DECISION

July 17, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator P. M. Williams filed by the Agencies [n1]  under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425. The Union filed an opposition to the Agencies' exceptions.

      The Arbitrator sustained the Union's grievance because the Agencies refused to appear at the arbitration hearing. For the following reasons, we conclude that the award is deficient and set it aside.

II.      Background and Arbitrator's Award

      The grievant is employed by the Defense Logistics Agency (DLA) in its subordinate activity, the DLA, Defense Distribution Depot, Oklahoma City, Oklahoma (DDOO). The DLA, DDOO is a tenant activity at Tinker Air Force Base, Oklahoma, (Tinker AFB).

      The American Federation of Government Employees (AFGE) is the exclusive representative of DLA employees in a nationwide bargaining unit, including employees in DLA, DDOO at Tinker AFB. AFGE, Council 169 is the bargaining agent for AFGE with respect to representing employees in DLA and AFGE, Local 916 (Union) is the agent of AFGE Council 169 with respect to DLA employees at Tinker AFB. The DLA and AFGE, Council 169 are parties to a master labor agreement (master agreement). A separate and distinct union, AFGE, Council 214, represents employees in the AFMC.

      The grievant was issued a traffic ticket by the AFMC, the host agency at Tinker AFB, for not wearing proper safety equipment while driving a motorcycle. See Award at 2. The grievant filed a grievance under the master agreement between the DLA and the Union that challenged the traffic ticket. In the grievance, the Union sought to enforce a memorandum of agreement (MOA) on motorcycle safety between the AFMC and AFGE, Council 214. See id. The Union is not a party to the MOA or a party to a collective bargaining agreement with the AFMC.

      The grievant initially submitted the Step 1 grievance to his immediate supervisor, who refused to accept the grievance and informed the grievant that she did not have the authority to override the Base Commander, who is part of the AFMC. See id. at 6. The grievant then submitted the Step 1 grievance to the Base Commander. In a memorandum to the grievant and the Union, the AFMC denied the grievance on the grounds that the grievant was "not a member of the AFMC bargaining unit" and was not covered by the collective bargaining agreement between the AFMC and AFGE, Council 214. Id. at 3.

      Subsequently, in a letter to the AFMC, the Union expressed its intent to invoke arbitration under the master agreement between the Union and the DLA. See Exceptions, Attachment 15. In a memorandum to the grievant and the Union, the AFMC stated that it rejected the Union's request to invoke arbitration because AFMC did not employ the grievant and was not involved in "any step of the grievance or arbitration process for DLA employees." Id. at 4.

      Thereafter, the DLA sent the Union a copy of a letter it sent to the Federal Mediation and Conciliation Service (FMCS). See id. at 2-3. In that letter, the DLA stated that it did not agree to a request for a panel of [ v62 p135 ] arbitrators from the FMCS. [n2]  The DLA further stated that it was "unaware of any grievance filed with [the DLA], and [that] the request for arbitration appears to be premature." See id. at 3.

      Subsequently, the Union unilaterally selected P. M. Williams to be the Arbitrator. The Arbitrator held two separate hearings on separate dates. Neither the DLA nor the AFMC attended either of the hearings.

      The Arbitrator issued an award, after the first hearing, in which he ruled that the grievance was arbitrable. See id. at 6. After the second hearing, the Arbitrator issued a second award. In the second award, the Arbitrator found that the first award was "final," and that the subject matter of the second hearing was the "merits of the grievance." See id.

      In the second award, the Arbitrator found that, after the Step 1 grievance was submitted to the AFMC Base Commander, the grievance did not "receive the attention it was due under . . . the language of the DLA [master agreement]." Id. The Arbitrator also found that the "nub of the grievance" is "that the traffic ticket should be expunged from the grievant's record and that the [A]gencies immediately comply with the MOA." Id. According to the Arbitrator, the Agencies chose not to send representatives to the arbitration hearing and "offered no written documents of a probative nature in support of their positions." Id. As a result, the Arbitrator found that the Agencies "offered nothing into the record . . . to discuss the contractual basis or a lack thereof to explain their adamant failure to properly process the grievance." Id.

      Based on the foregoing, the Arbitrator sustained the grievance. As a remedy, the Arbitrator directed the Agencies to expunge the traffic ticket from the grievant's record and to comply with the MOA. See id. at 6-7. The Arbitrator also directed that the "[A]gencies and the [U]nion share the [total] costs of the arbitration equally." Id. at 7.

III.     Positions of the Parties

A.      The Agencies' Exceptions

      The Agencies contend that the award is based on nonfacts. In this regard, the Agencies assert that the Arbitrator erroneously found that the grievant could file a grievance against the AFMC under a negotiated grievance to which AFMC is not a party and erroneously found that that the "DLA is found liable for the alleged misdeeds of another agency." Exceptions at 12. The Agencies also assert that the Arbitrator erred in finding that he had the authority to arbitrate this case after being informed by the FMCS that he had been improperly selected. See id.

      In addition, the Agencies contend that the award fails to draw its essence from the agreement. The Agencies assert that the Arbitrator improperly "mix[ed] and match[ed]" two separate collective bargaining agreements. Id. at 11. The Agencies argue that the award subjects the AFMC to a negotiated grievance procedure to which it is not a party. See id. at 10-11.

      Furthermore, the Agencies contend that the Arbitrator exceeded his authority when he made the AFMC a party to arbitration proceedings invoked under a negotiated grievance procedure to which AFMC was not a party. See id. at 8. According to the Agencies, the Arbitrator erroneously determined that the DLA was subject to his authority even though the grievant did not file a grievance against the DLA under the negotiated grievance procedure between the Union and DLA.

      Finally, the Agencies contend that the award is contrary to law. In particular, the Agencies argue that the grievant does not have the right under § 7121 of the Statute to file a grievance against AFMC and that the Union does not have the right to invoke arbitration against the AFMC because AFMC is not a party to the negotiated grievance procedure between the Union and the DLA. See id. at 8, 9-10. The Agencies also argue that the award is contrary to § 7121 of the Statute because the Union invoked arbitration against the DLA without first filing a grievance against the DLA and proceeding through the negotiated grievance procedure. See id. at 10. The Agencies add that the DLA was not provided notice of the arbitration hearing and an opportunity to be present at that proceeding. See id.

B.      Union's Opposition

      The Union contends that the award is not based on nonfacts. The Union argues that the award establishes as "a central fact" that the MOA between the AFMC and AFGE, Council 214 was a binding agreement. [ v62 p136 ] Opposition at 7. The Union asserts that, although the "MOA only applies to AFMC bargaining unit employees, . . . many times nonbargaining unit employees benefit from bargaining agreements." See id.

      In addition, the Union contends that the award does not fail to draw its essence from the master agreement. The Union argues that the FMCS improperly made an arbitrability determination when it refused "to issue a panel" based on the language of the master agreement. See id. at 6. The Union asserts that only an arbitrator, and not FMCS, has the authority to make an arbitrability determination. See id.

      Further, according to the Union, the Arbitrator did not exceed his authority. The Union argues that the grievance was filed and arbitration was invoked in accordance with the master agreement between the DLA and the Union. See id. at 4. The Union asserts that the grievant filed the grievance with his supervisor under the grievance procedure between the Union and the DLA and "elevated" the grievance when his supervisor refused to take it. Id. The Union also argues that the DLA has not supported its claim that it was not provided notice of the arbitration hearing dates.

      Finally, the Union contends that the award is not contrary to law. The Union asserts that the fact that the grievant was not employed by the AFMC is irrelevant. The Union asserts that both the Agency and the AFMC are "subordinate levels of management" in DOD. Id. at 5.

IV.      Analysis and Conclusions

A.      The award is based on a nonfact

      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. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      In this case, the Arbitrator found that the MOA applied to the grievant. However, it is undisputed that the Union was not a party to the MOA and that the MOA did not apply to the grievant. The MOA was a product of bilateral negotiations between AFMC and AFGE, Council 214. While the Union states that nonbargaining unit employees benefit from the MOA, it offers no support that the Union can enforce the MOA in arbitration.

      We conclude that, if the Arbitrator had understood that the MOA was not enforceable by the Union, then he would not have sustained the grievance that sought to enforce the MOA. Thus, the central factual finding underlying his award is clearly erroneous, but for which he would have reached a different result. See, e.g., United States Army Missile Command, Redstone Arsenal, Ala., 18 FLRA 374, 375-76 (1985) (award enforcing an agreement that did not apply to the grievant because it had expired set aside as based on a nonfact). There is nothing in the record to indicate that the Arbitrator's findings were disputed below. For these reasons, we conclude that the central fact underlying the award is clearly erroneous, but for which the Arbitrator would have reached a different result and, therefore, that the award is deficient. See id. at 375-76.

B.     The award fails to draw its essence from the 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) 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, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Arbitrator's construction of the master agreement between the Union and the DLA is implausible and contrary to its purpose. In this regard, the Arbitrator found that the negotiated grievance procedure in that master agreement was available to enforce an MOA to which neither the Union nor the DLA is a party. As it is undisputed that the AFMC is not a party to that master agreement, it follows that the negotiated grievance procedure does not apply to the AFMC. We conclude that, by enforcing the negotiated grievance procedures against the AFMC, the award is not a plausible interpretation of the master agreement and, as a result, that the award fails to draw its essence from the agreement. See United States Dep't of Justice, Federal Bureau of Prisons, Metro. Detention Ctr., Guaynabo, P.R., 58 FLRA 553, 554 (2003).

      Similarly, the Arbitrator's construction of the MOA is implausible and contrary to its purpose. The [ v62 p137 ] Arbitrator found that the MOA was enforceable by the Union. As noted, it is undisputed that the Union was not a party to the MOA and that the MOA does not apply to the grievant. We conclude that, by finding that the MOA was enforceable by the Union, the award is not a plausible interpretation of the MOA, and, as a result, that the award fails to draw its essence from the MOA. See id.

V.      Decision [n3] 

      The award is set aside.



Footnote # 1 for 62 FLRA No. 34 - Authority's Decision

   The Defense Logistics Agency (DLA) and the Air Force Materiel Command (AFMC) are both parties to this case. The AFMC filed the exceptions to the award and the DLA joined the exceptions without providing separate arguments.


Footnote # 2 for 62 FLRA No. 34 - Authority's Decision

   Uncontested exhibits demonstrate that the Union requested the FMCS to designate P. M. Williams as an arbitrator and that the FMCS refused the request on the grounds that, under the master agreement, the request for an arbitrator must be made jointly by the Union and the DLA. See Exceptions, Attachments 17, 18. Further, by letter, the FMCS notified P. M. Williams that the FMCS had no authority to appoint an arbitrator, based on the master agreement. See Opposition, Attachments 4-13.


Footnote # 3 for 62 FLRA No. 34 - Authority's Decision

   In light of this decision, it is unnecessary to address the Agency's remaining arguments that the award is defi