[ v39 p576 ]
The decision of the Authority follows:
39 FLRA No. 47
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS LOGISTICS BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an exception to the award of Arbitrator Jack R. George 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 Rules and Regulations. The Agency did not file an opposition to the Union's exception.
The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by failing to assign overtime work to the grievants in accordance with the provisions of the agreement. As a remedy, the Arbitrator ordered that the grievants be afforded one future opportunity for overtime work in addition to any overtime work to which they would otherwise be entitled.
For the following reasons, we conclude that the Union's exception fails to demonstrate that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
The dispute in this matter arose on August 23, 1989, when the Agency received an emergency request to prepare approximately 20 jeeps for shipment. Employees were immediately assigned the job of preparation. Later that day, in order to expedite the project, management required the employees who had already been assigned to the project to work overtime.
A grievance was filed by a group of six employees who believed that they were entitled to the overtime worked on the project on August 23, 1989. The grievance was not resolved and was submitted to arbitration.
The Arbitrator sustained the grievance. The Arbitrator concluded that the Agency had violated the parties' collective bargaining agreement by failing to abide by Article 15, Section 4(b) of the agreement governing the assignment of overtime work.(*)
As to remedy, the Arbitrator stated that, although he was sustaining the grievance, "a monetary remedy to the [g]rievants is not considered appropriate in this situation. It is fairly certain due to the grave situation in the Persian Gulf that much overtime will be incurred in the coming months. Therefore, the decision includes the requirement that the [g]rievants be given an additional opportunity to work overtime above the opportunities which they ordinarily might accrue." Award at 10-11.
Accordingly, as his award, the Arbitrator ordered:
The grievance is sustained.
The [g]rievants [are] to be afforded one opportunity for overtime work above and beyond that which they would be entitled to in the ordinary course of events.
Id. at 11.
III. Union's Exception
The Union contends that the Arbitrator erred by awarding each of the grievants an additional future opportunity to work overtime instead of awarding backpay. The Union requests "that the grievants be compensated for the loss of earnings [to] which they are justly entitled" under the parties' agreement. Exception at 1.
The Union argues, in support of its exception, that the "negotiated agreement would only be further violated if the [A]gency complied with the [A]rbitrator's award" and that to "create special overtime for this purpose could not legally be justified." Id. at 2. Moreover, the Union asserts that as some of the grievants have since been reassigned to other shops within the Agency, the award would require giving those grievants overtime that "justly belonged to other employees." Id. Finally, the Union states that overtime is no longer offered in the division where the remaining grievants work and that "[n]o attempt was made to enforce the [A]rbitrator's award." Id.
IV. Analysis and Conclusions
Under section 7122(a) of the Statute the Authority may find an arbitration award to be deficient (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor-management relations. Although the Union has not stated the specific basis for its exception, we construe the exception as a contention that the award fails to draw its essence from the parties' agreement.
For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990) (Ogden).
First we note that it is well established that arbitrators have great latitude in fashioning remedies. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga. and American Federation of Government Employees, Local 987, 25 FLRA 969 (1987) (Warner Robins) (arbitrator's award of make-up overtime found not to be a basis for finding the award deficient). Contrary to the Union's assertion, the arbitrator's award does not require the creation of overtime. The award merely requires that each of the grievants receive an additional opportunity to work overtime when such work is available. While the remedy ordered by the arbitrator might have the effects of requiring the grievants to work overtime in shops other than the one to which they are usually assigned and of placing the grievants ahead of some employees whose names already appear on the contractually provided-for rosters of employees available for overtime, we cannot conclude that the ordered remedy meets any of the tests described in Ogden. It is clear that the award in this matter was based on the Arbitrator's plausible interpretation and application of the parties' agreement and that it does not manifest a disregard for the agreement. The Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the agreement and with the remedy fashioned by the Arbitrator. As such, the exception provides no basis for finding the award deficient. See, for example, Warner Robins, 25 FLRA at 971.
The Union has not demonstrated that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, the exception will be denied.
The Union's exception is denied.
Article 15: Overtime
Section 4 Distribution.
b. Each supervisor will maintain an overtime roster of employees under his or her supervision by job classification, listed in descending order of Service Computation Date. As employees are assigned to the shop/office their names will be placed at the bottom of the roster.
(1) When overtime is required and familiarity with the project or special skills are not required for continuity or efficiency, overtime will be distributed among qualified employees on the basis of their standing on the roster.
(2) When the supervisor determines that overtime work is required, the supervisor will announce the particulars of the assignments to employees in the needed job classification who are on duty at the time. If more employees volunteer for the assignment than are needed, the supervisor will assign the overtime among the volunteers beginning with the name immediately below the last person on the roster to have worked an overtime assignment. If there are an inadequate number of volunteers and employees have to be directed to work an overtime assignment, employees will be directed to work the overtime beginning with the name immediately below the last person on the roster to have worked an overtime assignment.
(If blank, the decision does not have footnotes.)
*/ The text of Article 15, Section 4(b) of the parties' agreement is found in the appendix to this decision.