48:0095(9)AR - - AFGE Local 2029 and DOD, Defense Distribution Region West, Tracy Depot, Tracy, CA - - 1993 FLRAdec AR - - v48 p95
[ v48 p95 ]
The decision of the Authority follows:
48 FLRA No. 9
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION REGION WEST
August 6, 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 Grady L. Mullennix 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 Arbitrator denied a grievance alleging that the Agency violated the parties' supplemental collective bargaining agreement in administering its annual leave policy for the 1992 leave year. 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 Union filed a grievance claiming that, during the 1992 leave year, the Agency did not consider annual leave requests of employees in the Receiving Documentation Branch (the Branch) in accordance with Article 24, Section 2-S of the parties' 1983 supplemental agreement.(1) The Agency denied the Union's grievance and the grievance was submitted to arbitration.
The parties stipulated to the following issues before the Arbitrator:
Did the Employer violate Article 24, Section 2-S of the [negotiated agreement] [b]etween the [p]arties in evaluating their [sic] 1992 leave requests for the Receiving Documentation Branch? If so[,] what is the appropriate remedy?
Award at 1.
The Union asserted before the Arbitrator that Article 24, Section 2-S requires that annual leave be scheduled on the basis of seniority within each "'job category,'" which the Union defined as "'[j]ob [t]itle, series and grade.'" Id. at 2. The Union claimed that the Agency violated the parties' agreement and past practice in 1992 when it "simply lumped all employees together as one job category for purposes of [administering] the annual leave." Id. As a remedy, the Union requested that the Arbitrator order the Agency to "make amends to those whose rights were violated in the administration of annual leave in 1992." Id.
The Agency did not dispute the Union's claim that in 1992 all employees in the Branch were viewed as occupying a single job category for purposes of scheduling annual leave. The Agency maintained that its procedure for scheduling annual leave was proper and contended that annual leave requests had been evaluated in that way for several years in the recent past. According to the Agency, "it made good sense to use the entire Branch work force as a single job category for annual leave scheduling because all of the employees are interchangeable and can replace each other in case of absences." Id. at 3.
The Arbitrator concluded that the Union had not proved by a preponderance of the evidence that a violation of the agreement had occurred. The Arbitrator also found that he could not sustain "the grievance over [a] [p]ast-practice violation . . . ." Id. at 6. Accordingly, the Arbitrator denied the grievance. The Arbitrator additionally stated that "[i]f any of those denied their leave requests in 1992 had more seniority than any of those in the Receiving Documentation Branch who were given leave[,] they have a legitimate grievance even under the Agency's own interpretation of the [p]olicy." Id. at 5. The Arbitrator ordered that "any senior [employees] of the Receiving Documentation Branch who were denied leave in 1992 while less senior employees were receiving [annual] leave should be given preference in the scheduling of leave in 1993." Id. at 6.
III. Positions of the Parties
A. Union's Exceptions
As its first exception, the Union argues that the award is ambiguous, contradictory, and erroneous and the Arbitrator's conclusion is irrational, unfounded and implausible. In support of this exception, the Union maintains that "[t]he central fact underlying the award was that the [U]nion allegedly did not prove by the preponderance of the evidence that a violation of the Negotiated Supplemental Agreement occurred." Exceptions at 2. The Union notes, among other things, that it provided three witnesses who testified that scheduled annual leave was to be granted according to seniority within a job category and that the term "job category" was intended to mean "job title, series and grade." Id. According to the Union, "it is more than obvious that the [A]rbitrator's decision is based upon nonfacts." Id. at 3. Additionally, noting the Arbitrator's finding that he could not sustain the grievance over a past practice violation, the Union asserts that the Arbitrator "is confused because the [U]nion did not raise the issue of past practice." Id. Further, noting the Arbitrator's statement that any employees who were improperly denied leave in 1992 under the Agency's policy shall be granted preference in leave scheduling in 1993, the Union argues that "[i]t is more than obvious that the [A]rbitrator's award is strifed [sic] with ambiguity" because the Arbitrator "first denies the grievance and then turns around and finds in favor of the aggrieved." Id. at 4.
As its second exception, the Union asserts that the Arbitrator's "vast delay in issuing a decision has imposed harmful error on the aggrieved." Id. at 2. In this regard, the Union asserts that, under Article 37, Section 4 E. of the parties' master agreement, the Arbitrator was required to render a decision within 30 days after the conclusion of the hearing.(2) However, the Union notes that the Arbitrator did not render his decision until 5 1/2 months after the hearing. The Union claims that if the Arbitrator's decision had been issued in accordance with the agreement, the outcome would have favored the Union because the facts would have been "fresh in the [A]rbitrator's memory." Id. at 5.
B. Agency's Opposition
The Agency contends that the Union is merely disagreeing with the decision of the Arbitrator and his interpretation of the parties' supplemental agreement. The Agency also contends that the Union has not shown how the delay in the Arbitrator's issuance of his decision harmed the grievants or is contrary to law or regulation.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute.
A. First Exception
The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. For example, U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 943 (1991). The Union has not established that the award is deficient under this standard.
The Arbitrator denied the grievance because he found that the Union had not proved by a preponderance of the evidence that the Agency's method of administering annual leave requests in the Branch in 1992 was contrary to the parties' agreement or past practice. Additionally, after noting that any employees who were denied leave in 1992 and who had more seniority than other employees in the Branch who were granted leave had a "legitimate grievance even under the Agency's own interpretation of the [p]olicy[,]" the Arbitrator ordered that those employees "should be given preference in the scheduling of leave in 1993." Award at 5-6.
Contrary to the Union's contention, nothing in this aspect of the Arbitrator's award is inconsistent with his denial of the grievance. The Arbitrator's denial of the grievance was based on his determination that the Union had not proved that the Agency's method of administering annual leave requests in the Branch in 1992 was contrary to the parties' agreement or past practice. The aspect of the award relating to preference for the scheduling of leave for certain employees in 1993 was based on the determination that the Agency's method of administering leave requests was consistent with the parties' agreement and past practice but may have been misapplied in certain instances. Additionally, the Arbitrator's award giving preference to any employees who may have been wrongly denied leave under the Agency's own interpretation of the leave policy is consistent with the Union's request that the Arbitrator provide a remedy for employees whose rights were violated in the granting of leave requests in 1992. Consequently, the Union's contention in this regard is denied.
Further, we find that the Union has not shown that the Arbitrator's award is erroneous because it is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Houston, Texas and American Federation of Government Employees, Council 215, 46 FLRA 529, 534 (1992).
The Arbitrator concluded, based on his evaluation of the evidence, that the Union failed to prove by a preponderance of the evidence that the Agency violated the parties' supplemental agreement governing the administration of annual leave for employees in the Branch. Therefore, he denied the grievance. The Union has not demonstrated that the Arbitrator's finding is clearly erroneous. The Union's exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his findings and conclusions. Accordingly, this contention provides no basis for finding the award deficient. See id.
Finally, we construe the Union's assertion that the Arbitrator's conclusion is irrational, unfounded, and implausible as a contention that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from the agreement, 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 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 American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499 (1992).
The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator found that the Union had not proved by a preponderance of the evidence that a violation of Article 24, Section 2-S of the parties' agreement had occurred. We have no basis on which to conclude that the Arbitrator's finding that the Agency did not violate the parties' agreement in administering the annual leave policy is implausible, irrational, or unconnected to the wording of the parties' agreement. Rather, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issue presented before the Arbitrator. The Union's arguments do not provide a ground on which the Authority will find an award deficient under section 7122(a) of the Statute. See id.
B. Second Exception
As to the Union's assertion that the award is deficient because it was not issued within the timeframes of the parties' agreement, the record contains no evidence indicating that the Union contacted the Arbitrator at any time after the hearing to inquire as to the status of the decision. The uncontroverted record establishes that the Union objected to the Arbitrator's alleged failure to comply with the timeframes established by the parties' agreement only after the award was issued. The Authority has found that an exception claiming, only after an award is issued, that the award is deficient because it was not issued within an applicable time period provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, National Council of Social Security Administration, OHA Locals, 44 FLRA 550, 555 (1992). See also West Rock Lodge No. 2120, IAMAW v. Geometric Tool Co., 406 F.2d 284 (2d Cir. 1968). Also, we note that Article 37 of the parties' agreement does not require the issuance of awards during any particular time period. Therefore, we find that the Union's exception in this regard provides no basis for finding the Arbitrator's award deficient.
We note the Union's contention that the Arbitrator's delay in issuing his award was harmful error rendering the award invalid. The harmful error rule, contained in 5 U.S.C. § 7701(c), applies to an arbitrator's resolution of a grievance over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base and American Federation of Government Employees, Local 1592, 40 FLRA 1243, 1246 (1991). The harmful error rule does not apply to other actions. Because this award does not involve an adverse action, we find that th