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The decision of the Authority follows:
41 FLRA No. 5
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Alan R. Rothstein 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 Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement and applicable regulations by denying bargaining unit employees administrative leave for October 19 and 20, 1989. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
An earthquake occurred on October 17, 1989, in San Francisco. Agency buildings were closed on October 18, to determine whether there was any structural damage and all employees were placed on administrative leave.
On October 19, the Agency determined that its buildings were safe for occupancy and concluded that the employees could return to work. The Agency declared October 19 and 20, regular work days and decided to grant administrative leave to those employees who met the following criteria:
1. an employee who had damage to their living structure, or
2. an employee who was genuinely confused about whether he or she was supposed to be at work.
Award at 4. Employees who did not meet these criteria were allowed to use annual or sick leave.
A grievance was filed alleging that the Agency treated bargaining unit employees disparately by the procedure it followed to grant and deny administrative leave for October 19 and 20. When the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:
Did the agency violate the negotiated agreement or applicable laws or regulations by denying bargaining unit employees administrative leave for October 19-20, 1989. If so, what is an appropriate remedy?
Id. at 2.
The Arbitrator found that the Agency's criteria for approving or denying administrative leave were "arbitrary and applied to members of the bargaining unit in an arbitrary manner." Id. at 10. The Arbitrator concluded that the Agency violated applicable regulations and the parties' collective bargaining agreement (1) by its actions in: (1) setting "arbitrary criteria for excusing employees from duty," (2) failing to negotiate or consult with the Union over the procedures for approving or denying administrative leave, and (3) failing to give the Union an opportunity to negotiate over the impact of the procedures used by the Agency to excuse bargaining unit employees. Id. at 12. Accordingly, the Arbitrator sustained the grievance.
The Arbitrator directed the Agency to (1) restore all leave to the grievants who requested administrative leave for the days other employees were excused from duty; and (2) meet and confer with the Union regarding procedures for inspection of agency buildings following earthquakes.
III. Positions of the Parties
A. The Agency
The Agency contends that the Arbitrator's award "extend[s] beyond his authority, the Agency's negotiated agreement, and applicable Government-wide regulations." Exceptions at 1.
In particular, the Agency argues that the Arbitrator's remedy directing it to meet and confer with the Union concerning building inspection procedures following earthquakes "goes beyond the arrangements" provided for in Article 19-7. The Agency also argues that the award is "inconsistent with mid-term bargaining provisions under the current agreement in Article 32-2." Exceptions at 3-4. In addition, the Agency asserts that the Arbitrator failed to provide "a plausible interpretation" of Article 12-3 of the parties' agreement. Id. at 2. The Agency notes that Article 12-3 provides "a procedure for employees to follow if their absence(s) is necessary as a result of unfor[e]seen circumstances." Id. The Agency maintains that under this section, managers will grant or deny leave to employees based upon the employees' individual circumstances.
With respect to applicable Government-wide regulations, the Agency asserts that the award conflicts with FPM chapter 610 because the award requires the Agency to grant administrative leave to employees who were in preapproved leave status. Id. at 2-3.(2)
B. The Union
The Union asserts that the Agency's exceptions are "not well-founded" and argues that "the Agency is simply challenging the Arbitrator's conclusions from the evidence before him in resolving the issue submitted to him." Opposition at 2. The Union contends that the Arbitrator correctly applied applicable regulations and the collective bargaining agreement.
IV. Analysis and Conclusion
We construe the Agency's arguments that the Arbitrator's award "extend[s] beyond" the Agency's negotiated agreement and that he failed to provide "a plausible interpretation" of Article 12-3 as contentions that the award fails to draw its essence from the agreement. Exceptions at 1, 2. To demonstrate that an award fails to draw its essence from an agreement, a party must show 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. For example, U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115 (1991).
The Agency has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator considered Articles 2, 5, and 19 of the parties' collective bargaining agreement and rejected the Agency's arguments that, in taking its disputed actions, it did not violate the agreement. Nothing in the Arbitrator's interpretation of these articles or other provisions relied on by the Agency is irrational or implausible. Accordingly, there is no basis on which to conclude that the award fails to draw its essence from the agreement.
We reject also the Agency's argument that the Arbitrator's award conflicts with FPM chapter 610 because it would require the Agency to excuse employees who were in preapproved leave status. The Agency has not shown that FPM chapter 610 prohibits an agency from granting administrative leave to employees in preapproved leave status. Therefore, we find that the Arbitrator's award is not inconsistent with FPM chapter 610, subchapter 3.
Finally, we construe the Agency's argument that the Arbitrator's award extends beyond his authority as a contention that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Veterans Affairs, Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1898, 37 FLRA 1092 (1990). The Agency has not established that the Arbitrator's award relates to matters which were not submitted to arbitration or encompasses persons who were not included in the grievance. Accordingly, the Agency's assertion that the Arbitrator exceeded his authority provides no basis for finding the award deficient.
The Agency has not demonstrated that the Arbitrator's award is deficient on any grounds set forth in section 7122(a) of the Statute. Therefore, we will deny the Agency's exceptions.
The Agency's exceptions are denied.
Article 2: Provisions of Law and Regulations
In the administration of all matters covered by this agreement, the parties are governed by existing or future laws and Government-wide rules and regulations in effect upon the effective date of this agreement.
Article 5: Rights and Responsibilities of the Union
5-1. The Union will have the right and obligation to represent all employees in the Unit; to present its views to Management on matters of concern either orally or in writing, and to meet, confer, and/or negotiate with respect to the personnel policies and practices and matters affecting working conditions of employees in the Unit.
Article 12: Leave Procedures
12-3. Reporting/Requesting Leave in Unforeseen Circumstances. When a situation occurs wherein an employee could not have known beforehand of his/her need to be absent, his/her request for leave normally will be granted.
Article 19: Safety and Health
19-1. Each activity agrees to provide a safe and healthful work place for all employees and, to the extent practical, take corrective action on any reported unsafe working conditions and/or working habits.
Article 32: Term of Agreement and Methods to Terminate, Renew and Change or Amend.
32-2. Amendments. This Agreement is subject to amendment as follows:
a. Amendment(s) may be required because of changes made in applicable laws or regulations promulgated by higher authority after the effective date of this Agreement. . . .
b. It may be opened for amendment(s) by mutual consent of both Parties at any time after the Agreement has been in effect for one (1) year.
5 C.F.R. Ch.1, Part 610, Subpart C - Administrative Dismissals of Daily, Hourly and Piecework Employees
610.301. Purpose. The purpose of this subpart is to provide uniform and equitable standards under which regular employees paid at daily, hourly, or piecework rates may be relieved from duty with pay by administrative order.
610.301. Policy statement. The authority in this subpart may be used only to the extent warranted by good administration for short periods of time not generally exceeding 3 consecutive work days in a single period of excused absence. This authority may not be used in situations of extensive duration or for periods of interrupted or suspended operations such as ordinarily would be covered by the scheduling of leave, furlough, or the assignment of other work. Insofar as practicable, each administrative order issued under this subpart shall provide benefits for regular employees paid at daily, hourly, or piecework rates similar to those provided for employees paid at annual rates.
Federal Personnel Manual (FPM) Chapter 610
Subchapter 3, Group Dismissal or Closure of Activities
3-1, Summary: This subchapter provides guidance on conditions and procedures for group dismissal or closure. It is not intended to provide guidance on furloughing or granting leave in individual situations.
Appendix A - Procedures for Emergency Plan Development
e. Consider options and establish policies for charging leave in emergency situations occurring before the start of the workday and during the workday. Agencies should base their decisions concerning dismissal, closure and leave charges on the effect of the emergency on the employees and worksites and the duty status of employees at the time of dismissal or closure. [See Decision Charts 1 and 2 at the end of this appendix.]
Appendix A - Decision Chart 1
Open Agency - employees expected to report for work on time. Grant annual leave, LWOP (leave without pay), accrued compensatory time, or excuse reasonable tardiness for employees who experience commuting delays.
If employees might be prevented from reporting to work or if they believe that they might not be able to return home if they do come to work, annual leave, accrued compensatory time, or LWOP may be granted without prior approval.
(If blank, the decision does not have footnotes.)
1. The Arbitrator stated that Articles 2, 5, and 19 of the parties' agreement were pertinent to the dispute. Award at 2. These provisions, as well as others referenced by the Agency in its exceptions, are set forth in the attached Appendix.
2. Relevant regulatory provisions are set forth in the attached Appendix.