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47:0201(12)AR - - NAGE, Local R14-52 and Red River Army Depot, Texarkana, TX - - 1993 FLRAdec AR - - v47 p201

[ v47 p201 ]
The decision of the Authority follows:

47 FLRA No. 12





LOCAL R14-52










March 26, 1993


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 Harry L. Johnson 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 filed an opposition to the Union's exceptions.

The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to offer the grievant the opportunity to perform certain overtime work. The Arbitrator denied the grievance. 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

On two occasions, the supervisor of the Agency's Defense Logistics Support Unit (DLSU) was notified that an individual was needed to work overtime. The DLSU supervisor determined that the qualifications necessary to perform the overtime were those of an Industrial Equipment Electrician, WG-10. The DLSU supervisor did not have any WG-10 Industrial Equipment Electricians in his immediate organizational area. However, he offered the overtime to two Electronic Measurement Equipment Mechanics, WG-11, in the DLSU.(1) The two WG-11 employees declined, or were unavailable, to perform the work.

As the DLSU supervisor "was unable to meet the overtime requirement with one of his employees, he went outside of his immediate organizational element . . . to discover if any other units had employees with the necessary skill level available to work the required overtime." Award at 9. First, the DLSU supervisor contacted the supervisor of the Maintenance Support Section, who "canvas[sed] his unit for employees to work the overtime" and then reported to the DLSU supervisor that no employees were available. Id. at 19. Next, the DLSU supervisor "went to the Section Board where all Industrial Equipment Electricians, (WG-10 employees), are listed." (2) Id. at 9. The DLSU supervisor offered the overtime to the employee on the Section Board who had worked the least amount of overtime. The employee, who was "'qualified' to perform the overtime work[,]" performed the work. Id. at 10.

The grievant, a WG-11 Electronic Measurement Equipment Mechanic in the Maintenance Support Section, filed a grievance alleging that the Agency's failure to offer him the disputed overtime violated Article 12 of the parties' collective bargaining agreement.(3) When the grievance was not resolved, it was submitted to arbitration. According to the Arbitrator, the parties presented the following issue to be resolved:

Was the Grievant denied overtime in violation of Article XII of the negotiated agreement . . . ? If so, what is the appropriate remedy?

Id. at 4.

The Arbitrator found that the Agency complied with Article 12 "to the letter and did not violate it in any way." Id. at 19. In this connection, the Arbitrator concluded, based on the DLSU supervisor's assessment, that the disputed overtime "required the skills of a WG-10." Id. According to the Arbitrator, as the supervisor was unable to obtain a qualified employee to perform the work from within his organizational element, the supervisor was forced "to go outside [his] immediate organizational element" to identify employees. Id. The Arbitrator concluded that, as the WG-10 employee selected from the Section Board was qualified to perform the work, the DLSU supervisor acted properly in offering the work to him.

The Arbitrator found that both WG-10 and WG-11 employees were qualified to perform the overtime work. In fact, according to the Arbitrator, "[t]he work performed by the WG-10 and WG-11 employees is almost 100 [percent] identical and is interchangeable . . . ." Id. at 21. However, the Arbitrator rejected the Union's argument that, because the DLSU supervisor "asked his WG-11 employees to work the overtime[,] the work demanded WG-11 qualifications." Id. at 20. The Arbitrator found that the supervisor "did not need a WG-11, but a WG-10, to perform the work." Id. at 21.

The Arbitrator also rejected the Union's argument that an award in this case could properly encompass payment of overtime compensation to the grievant. The Arbitrator stated, that the argument was "based upon the Union's assumption that [another] WG-11 [employee], who would have been eligible for the overtime according to the Union's projection, would have declined the overtime." Id. The Arbitrator stated that the Union's "presumption [was] not acceptable[]" and that the grievant could not "be awarded the overtime under such questionable circumstances and conjecture." Id.

In conclusion, the Arbitrator found that the Agency acted in accordance with the parties' agreement in assigning the disputed overtime to a WG-10 employee. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union alleges that the Arbitrator's award is based on nonfacts and is inconsistent with the parties' agreement.(4)

The Union identifies three alleged nonfacts. First, the Union claims that the Arbitrator's finding that "[t]he work performed by the WG-10 and WG-11 employees is almost 100% identical and is interchangeable[]" is erroneous. Exceptions at 4. According to the Union, WG-10 employees do not have the qualifications to perform the duties of WG-11 employees. Second, the Union disputes the Arbitrator's characterization of its argument regarding the grievant's eligibility for overtime. The Union contends that its argument that the grievant would have been offered the overtime is based on the fact that the other WG-11 employee in the grievant's work area "never worked overtime outside his immediate organizational element . . . ." Id. at 5. Third, the Union contends that the Arbitrator erred in finding that, during the first overtime request, the supervisor of the Maintenance Support Section canvassed his employees to determine whether any were available for the overtime. According to the Union, "no such canvassing took place." Id. at 7.

The Union also alleges that the award violates Article 12 of the parties' agreement. According to the Union, the Agency failed to properly canvass WG-11 employees, including the grievant, for the overtime.

B. Agency

The Agency contends that the Union's exceptions are an attempt to relitigate the case before the Authority and do not demonstrate that the award is deficient.

IV. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 46 FLRA 615, 619 (1992).

The Union has not demonstrated that the award is based on nonfacts. In this connection, the Union disputes three statements by the Arbitrator. However, the Union has not shown that any of the three statements, even if considered facts, were central to the award.

The Arbitrator found specifically that the DLSU supervisor "did not need a WG-11, but a WG-10, to perform" the disputed overtime work. Award at 21. As such, the Arbitrator's statement regarding the relative qualifications of WG-10 and WG-11 employees clearly is not central to the award. Similarly, as the Arbitrator concluded that the work did not require the qualifications of a WG-11 and that the Agency properly selected a WG-10 employee to perform the overtime, the Arbitrator's characterization as speculative the Union's argument that another WG-11 employee would have declined the overtime is not central. Finally, in view of the same conclusion, we also have no basis on which to find that the Arbitrator's statement that a supervisor canvassed certain employees regarding the overtime is central to the award.

A fact that is not central to an award is not a nonfact for the purposes of determining that an award is deficient. See General Services Administration, Region 2, New York, New York and American Federation of Government Employees, Local 2431, 46 FLRA 485 (1992). The Union has not demonstrated that the facts it disputes are central to the award. Accordingly, the Union has not shown that the award is deficient as based on a nonfact.

B. The Award Draws Its Essence from the Agreement

We construe the Union's claim that the award violates the parties' agreement as an assertion that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, a party must show 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. For example, 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, 44 FLRA 283, 286 (1992).

The Arbitrator concluded that, under Article 12 of the parties' agreement, if a supervisor is required to go outside his or her organizational element to satisfy an overtime requirement, the supervisor only is required to offer the overtime to a qualified employee. According to the Arbitrator, the DLSU supervisor correctly determined that a WG-10 employee was qualified to perform the disputed overtime work and, therefore, did not violate Article 12 by failing to offer the work to the grievant, a WG-11 employee. The Union has not demonstrated that the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disregard of the agreement. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement. See id.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. WG-11 Electronic Measurement Equipment Mechanics are represented by the Union. WG-10 Industrial Equipment Electricians are represented by another labor organization.

2. According to the Arbitrator, both overtime requests were handled in the same way, except that, in the second instance, after the two WG-11 employees in the DLSU declined the overtime offer, the DLSU supervisor went directly to the Section Board to select a qualified WG-10 to perform the work.

3. Article 12 provides, in pertinent part:

Section 2. Overtime assignments will be equitably distributed on a rotational basis among the employees who are assigned to the same job number and have the necessary qualifications within the organizational element. The immediate organizational element is defined as a group of employees headed by a first-level supervisor.

. . . .

Section 3.(d) When it becomes necessary to go outside the immediate organizational element to meet overtime requirements, offers of overtime will be to qualified employees from the overtime roster in the organization selected by the employer to provide additional personnel. . . .

Award at 18, 19 (emphasis omitted).

4. Among other things, the Union claims that the Agency violated Article 26 of the parties' agreement "when the [A]gency had lower graded employees with lesser qualifications performing the duties performed on a regular basis by W[G]-11" employees. Exceptions at 7. However, there is no basis in the record on which to conclude that this argument was made to the Arbitrator. Accordingly, we will not consider it further. See 5 C.F.R. § 2429.5. See also U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1169 (1992).