46:1316(126)AR - - AFGE Local 916 and Air Force, OK City Air Logistics Command, Tinker ARB, OK - - 1993 FLRAdec AR - - v46 p1316



[ v46 p1316 ]
46:1316(126)AR
The decision of the Authority follows:


46 FLRA No. 126

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS COMMAND

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

0-AR-2331

_____

DECISION

February 4, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator C. William Stratton 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 exceptions.

The Arbitrator sustained a grievance alleging that the Agency failed to temporarily promote the grievant in accordance with the parties' collective bargaining agreement but limited the grievant's backpay to a prescribed period of time. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a WG-5 aircraft freight loader, filed a grievance on April 30, 1991, alleging that he had performed duties at the WG-7 level and was entitled to be promoted to that grade under section 13.01 of the Master Labor Agreement (MLA).(1) The Agency denied the grievance and it was submitted to arbitration.

The Arbitrator stated that the issues were:

1. Is the grievance arbitrable[?]

2. Did the Agency violate the MLA or other pertinent [F]ederal law or regulations by failing to temporarily or permanently promote the [g]rievant to the Air Freight Loader WG-6968-7 position and if so, what is the proper remedy[?]

Award at 3-4.

The Agency argued before the Arbitrator that the grievance was not timely filed; that the grievant did not perform the grade controlling duties of the WG-7 position; and that the grievant was not entitled to either a permanent or a temporary promotion. The Union argued that the grievance was timely filed because the grievant was unaware until April 15, 1991 that the Agency had improperly failed to temporarily promote him. The Union also argued that the Agency violated the parties' agreement by failing to promote the grievant; that the Agency failed to document the grievant's work experience at the WG-7 level; that employees were promised promotion to WG-7 positions as they became available; that the grievant was performing duties of the WG-7 position; and that the grievant should be noncompetitively promoted to the WG-7 level.

As to the threshold issue of arbitrability, the Arbitrator first determined that the grievance alleged the "performance of the grade controlling duties of a higher related job and not a classification dispute." Id. at 5. Therefore, the Arbitrator concluded that the grievance was arbitrable, but that it was subject to "timeliness limitations . . . ." Id. The Arbitrator explained that the grievant "had a reasonable awareness that he was doing the work of a higher rated position, slept on his rights . . . [and] prejudiced the Agency." Id. The Arbitrator added that if the grievant had filed his grievance "shortly after he became aware of the facts and circumstances which . . . gave rise to the grievance, the Agency . . . would have therefore been in a position to have prevented further violation . . . ." Id. Consequently, the Arbitrator concluded that "it would be inequitable to give the [g]rievant complete and total relief . . . ." Id. However, the Arbitrator found that the Agency's action was a continuing violation and the grievant would be entitled to certain relief.

More particularly as to the merits of the grievance, the Arbitrator determined that the Agency had violated section 13.01 of the MLA when it failed to temporarily promote the grievant to the WG-7 level; that it engaged in a prohibited personnel practice by failing to pay the grievant "equal pay for equal work"; and that it failed to document his experience. Id. at 6. The Arbitrator concluded that such action also violated merit system principles and that, as a result, the grievant suffered a loss of pay and other benefits. However, the Arbitrator found that the grievant was not entitled to a non-competitive permanent promotion under section 12.17 of the MLA because "[t]here was never a time when there was a sufficient amount of work to justify the promotion of additional WG-7's." Id. Therefore, the Arbitrator ordered the Agency to temporarily promote the grievant to the WG-7 level for the period beginning on April 9, 1991, and ending on May 19, 1991. The Arbitrator further ordered the Agency to make the grievant whole for the violations "for a period beginning [21] days prior to the 30th day of April, 1991 . . . [and to provide] back pay from the 9th day of April, 1991, through the 18th day of May, 1991[.]" Id. at 7. The Arbitrator also directed that the grievant's records be corrected to show his temporary promotion and work experience at the WG-7 level. Finally, the Arbitrator retained jurisdiction over the case for purposes of implementing the backpay award if the parties were unable to agree on the amount of such pay.

III. The Exceptions

The Union argues generally that the award contains errors and inconsistencies and is not in accordance with "prevailing arbitral views." Exceptions at 2. The Union also maintains that the Arbitrator exceeded his authority and that he ignored and violated laws, regulations, and the MLA.

More specifically, the Union excepts to the Arbitrator's finding that the grievant was reasonably aware that he was doing the work of a higher-graded position and that he prejudiced the Agency by his delay in filing the grievance. The Union contends that the Arbitrator ignored the grievant's testimony that he did not know that performing higher-graded duties for a certain period of time without compensation at the higher grade was a violation of the MLA. The Union claims that the Agency knew that the grievant was assigned to perform the duties of a higher-graded position even though there were other employees at the higher grade available to perform the work. The Union argues that it is not the grievant's responsibility to correct the Agency's conduct.

The Union further contends that the Arbitrator improperly limited the grievant's relief to 21 days prior to the date of the grievance. The Union states that no other arbitrator has limited payment to a grievant in this manner and that there is no authority for such a limitation in this case. The Union claims that if the Arbitrator found the grievance arbitrable and if he found that the grievant actually performed the higher-graded work, then the grievant must be compensated in accordance with section 13.01 of the MLA. Accordingly, the Union argues that the grievant must be temporarily promoted from April 1, 1989, through May 19, 1991.

The Union also claims that the grievant was entitled to a non-competitive permanent promotion under section 12.17 of the MLA. The Union essentially argues that because the grievant was assigned to and performed the higher-graded duties, work was available at the higher grade, thus meeting the requirements contained in that section of the agreement.

IV. Analysis and Conclusions

For the following reasons, we conclude that the exceptions fail to establish that the award is deficient under section 7122 of the Statute.

First, we find no merit to the Union's exception that the Arbitrator erred in finding that the grievant was aware of his performance of higher-graded duties and the implications of that awareness. In reaching his result on this matter, the Arbitrator based his findings on his analysis of the evidence. In our view, the Union's claim that the Arbitrator ignored certain testimony constitutes mere disagreement with the Arbitrator's evaluation of the evidence, and his reasoning and conclusions. Such an exception does not provide a basis for finding the award deficient. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 342-43 (1991).

We also find no merit to the Union's contention that the Arbitrator exceeded his authority and improperly limited the grievant's backpay award. An arbitrator exceeds his or her authority by, among other things, resolving an issue not submitted to arbitration or awarding relief to persons not encompassed within the grievance. See, for example, id. at 341-42 (arbitrator did not exceed his authority by failing to award backpay). In the absence of a stipulated issue, the Arbitrator framed the issue as whether "the Agency violate[d] the MLA or other pertinent [F]ederal law or regulations by failing to temporarily or permanently promote the Grievant . . . and if so, what is the proper remedy[?]" Award at 3-4. Thus, the issue as to the appropriate remedy was directly before the Arbitrator for resolution. Based on his findings concerning the grievant's failure to file the grievance at the time he became aware that he was performing the work of a higher-graded position, the Arbitrator concluded that "it would be inequitable to give the [g]rievant complete and total relief . . . ." Id. at 5. Accordingly, the Arbitrator limited the grievant's backpay to April 9, 1991, through May 18, 1991. It is well established that arbitrators have broad authority to fashion a remedy for a violation of a collective bargaining agreement. We find that the award is directly responsive to the issue framed by the Arbitrator. Therefore, the Arbitrator acted within his authority in resolving this issue. See U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Local 1759, 42 FLRA 902, 919-20 (1991).

We also conclude that the Union's contention that the award was not in accordance with the "prevailing arbitral views" does not provide a basis for finding the award deficient. Exceptions at 2. An arbitrator is not bound to follow previous arbitration awards with similar issues when deciding a dispute before him. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 43 FLRA 963, 967 (1992).

Finally, we construe the Union's contention that the grievant was entitled to a non-competitive promotion under section 12.17 of the parties' agreement as an argument that the award does not draw its essence from the agreement. The Authority will find that an award is deficient because it fails to draw its essence from a collective bargaining agreement, when the party making the allegation demonstrates 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680, 683-84 (1991).

The Union has not demonstrated that the award fails to draw its essence from the MLA under any of these tests. Although the Arbitrator found that the grievant was performing the duties of a higher-graded position for the period in question, he further found that "[t]here was never a time when there was a sufficient amount of work to justify the promotion of additional WG-7's." Award at 6. We find that the Union has not established that the Arbitrator's award could not, in any rational way, be derived from the parties' agreement or that the Arbitrator's interpretation of the agreement is irrational, unfounded or implausible. In our view, the Union is merely disagreeing with the Arbitrator's interpretation of the MLA and does not provide a basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342, 1349-50 (1991).

V. Decision

The Union's exceptions are denied.

APPENDIX

Section 13.01 of the MLA provides:

When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. The employee must be qualified to fill the position on a permanent basis.

Section 12.17 of the MLA provides in relevant part:

Employees who have competed and were selected for positions with known promotion potential will be promoted when the following conditions are met:

a. Employee has been fully trained to perform the duties of the targeted or next higher grade.

b. The employee has appropriate length and type of experience required by rule or regulation and time-in-grade if applicable (GS employees).

c. Work is available at the next higher or targeted grade level and the supervisor certifies that the employee is capable of performing duties at the next higher grade level.

d. A promotion classification review, when required, verifies that the duty assignment is commensurate with the next higher or targeted grade.

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