35:1307(153)AR - - DOD, Defense Mapping Agency Aerospace Center, St., Louis, MO and NFFE Local 1827 - - 1990 FLRAdec AR - - v35 p1307

[ v35 p1307 ]
The decision of the Authority follows:

35 FLRA No. 153









LOCAL 1827




May 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Neil N. Bernstein. The Arbitrator denied the Union's grievance. Under the parties' collective bargaining agreement, the Arbitrator directed the Union, as the losing party, to pay all his fees and expenses.

The Union filed an exception to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity filed an opposition to the exception.

We conclude that the Union does not establish that the award fails to draw its essence from the collective bargaining agreement. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The Union filed a grievance asserting that certain management actions with respect to the grievant violated his rights under the parties' collective bargaining agreement. The Activity asserted that the grievance was not timely filed under the parties' agreement. The grievance was not resolved and was submitted to arbitration.

The Arbitrator rejected the Activity's contention that the grievance was untimely. On the merits, however, the Arbitrator denied the grievance. He found that management had not violated any rights of the grievant under the agreement. The Arbitrator then stated that the only remaining question was to determine "which party is to be responsible for the costs of the arbitration." Award at 11.

Section 8-6(f) of the parties' agreement provides:

The arbitrator's fee and expenses shall be paid by the losing party. The arbitrator will be asked to declare which party is the losing party and shall bill that party directly. When the arbitrator renders a "split decision" the arbitrator shall prorate his/her fees and expenses between the parties.

The Arbitrator noted that "[t]his case could possibly be considered to have been a 'split decision', because the [Activity] lost its contention that the grievance was untimely and should have been dismissed for that reason." Award at 11-12. However, the Arbitrator concluded "that because the grievance is totally rejected on the merits, the more reasonable conclusion is that the Union was the 'losing party' and should be directed to bear all arbitration costs." Id. at 12.

Accordingly, as the award, the Arbitrator denied the grievance and directed the Union to pay all his fees and expenses.

III. Positions of the Parties

A. The Union

The Union excepts only to the Arbitrator's direction that it pay all of his fees and expenses. The Union contends that this award does not draw its essence from the collective bargaining agreement.

The Union argues that the Arbitrator's assessment of his total fee against the Union disregarded the collective bargaining agreement and cannot be derived from it. The Union maintains that inasmuch as the Arbitrator dismissed the Activity's claim that the grievance was untimely, there was a split decision within the clear meaning and intent of Section 8-6(f) of the agreement. The Union asserts that the Arbitrator improperly used a standard for fee assessment that is different from the standard of Section 8-6(f). The Union claims that if the parties had intended for fees to be assessed based only on the disposition of the merits of the grievance, they could have easily said so. The Union maintains that, instead, the parties agreed on the provision that the losing party pays and that this language provides no support for the Arbitrator's award.

B. The Activity

The Activity contends that the Union does not establish that the award fails to draw its essence from the parties' collective bargaining agreement. The Activity argues that the award is based on the Arbitrator's interpretation of the meaning of "split decision" in Section 8-6(f). In the Activity's view, the Union's exception constitutes nothing more than dissatisfaction with the Arbitrator's interpretation and provides no basis for finding the award deficient.

IV. Analysis and Conclusion

The Union does not establish that the award fails to draw its essence from the collective bargaining 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 or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). These tests and th