48:0724(74)AR - - Army, HQ III Corps and Fort Hood, Fort Hood, TX and AFGE, Local 1920 - - 1993 FLRAdec AR - - v48 p724
[ v48 p724 ]
The decision of the Authority follows:
48 FLRA No. 74
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS III CORPS AND FORT HOOD
FORT HOOD, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 22, 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 Elvis C. Stephens 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 challenging the reassignment and detail of two employees. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On February 21, 1990, the Agency made a decision to discontinue the use of the "Remote Target System" on live fire ranges and reassign various personnel to other ranges. Award at 2. Subsequently, on October 6, 1991, the grievants, two WG-7 Target Device Workers, were reassigned to other ranges, but retained the same positions. On November 12, 1991, the grievants were detailed to the position of Target Device Servicer.(1) On March 11, 1992, the grievants were placed on "extended detail" to the position of Target Device Servicer pending a reduction-in-force (RIF) of their former positions. Id. On July 9, 1992, their details were extended once again.
On December 17, 1992, the Agency notified the Union that the position of Target Device Worker "had been identified for abolishment," and that the grievants' details would continue in order to provide the Agency with an opportunity to locate other positions into which the grievants could be placed. Id. The Agency stated that it wanted to place personnel in existing vacancies and that a RIF would be used "as a last resort." Id. The Agency also advised the Union that it was requesting permission from the Office of Personnel Management (OPM) to extend the details of the grievants "for a longer period than the regulations call for" in order to locate vacant positions for them. Id. Subsequently, on February 23, 1993, OPM approved the Agency's request.
The Union filed a grievance claiming that the reassignments and the details were in violation of the parties' collective bargaining agreement, Agency regulations, and the Federal Personnel Manual. As relief, the Union sought either the return of the grievants to their regular positions or the abolishment of their positions and the placement of the grievants through a RIF. When the grievance was not resolved, it was submitted to arbitration under an expedited arbitration procedure. The Arbitrator stated the issue as the following:
Did Management illegally detail the two employees? If so, what is the proper remedy?
Id. at 1.
As an initial matter, the Arbitrator rejected the Union's claim that the grievants were detailed in retaliation for "whistleblowing against a foreman . . . ." Id. at 2. The Arbitrator found that the Agency began the grievants' details on February 21, 1990, "with a decision to discontinue the use of the Remote Target System on the live fire ranges, and reassign some DS/GS personnel to other ranges." Id. The Arbitrator determined that the whistleblowing incident occurred on June 3, 1991, after the Agency's decision to reassign personnel. In addition, the Arbitrator stated that, although the Agency "may" have violated the collective bargaining agreement and Agency regulations in detailing the grievants, "this violation was approved by the OPM." Id. The Arbitrator also found that the remedy sought by the Union was not appropriate because the grievants' positions were vacant and were in the process of being abolished. Based on these findings and conclusions, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator erred in finding that the Agency commenced the details of the grievants on February 21, 1990. The Union asserts that although the grievants were assigned to a different work area in February 1990, the actual details began on October 6, 1991, when the grievants were assigned to a lower-graded position.
The Union further contends that the award is "not acceptable" because the Arbitrator "did not completely check all [the] evidence prior to making a judgement [sic]." Exceptions at 1. In this connection, the Union asserts that the Arbitrator either misinterpreted or overlooked the evidence that had been submitted at the arbitration hearing.
Finally, the Union argues that the Arbitrator was biased. As evidence of this claim, the Union asserts that despite the Arbitrator's finding that management "illegally" detailed the grievants, the Arbitrator found that management's failure to adhere to the parties' agreement and various regulations was appropriate because the details were approved by OPM. Exceptions at 1.
As a preliminary matter, the Agency asserts that the exceptions should be dismissed because the Agency was not served with the attachments to the exceptions, as required by the Authority's Rules and Regulations. The Agency requests that the Authority direct the Union to serve the attachments on the Agency and provide the Agency with an opportunity to respond to the attachments.
As to the merits of the exceptions, the Agency maintains that the Union's contention that the award is based on a nonfact, namely that the Agency began the details on February 21, 1990, rather than October 6, 1991, is based on the Union's misinterpretation of the award. The Agency asserts that the Arbitrator did not find that the grievants were detailed on February 21, 1990. Rather, the Agency asserts that the Arbitrator found that, on that date, the Agency proposed a realignment of the Target Operations Branch, which "was the start of a process that ultimately resulted in the detail of the grievants." Opposition at 3.
The Agency also disputes the Union's contention that the Arbitrator "'did not completely check all [the] evidence prior to making a judgement [sic].'" Id. at 4, quoting Exceptions at 1. The Agency maintains that that contention constitutes an attempt to relitigate the merits of the grievance and does not provide a basis for finding the award deficient.
Finally, the Agency disputes the arguments offered by the Union to support its position that the Arbitrator was biased. In this regard, the Agency asserts that the Arbitrator did not find that the extension of the grievants' details violated the collective bargaining agreement and Agency regulations. Rather, the Agency asserts that the Arbitrator found that the extension of the grievants' details "'may'" have violated the collective bargaining agreement and Agency regulations and that "[t]his is not the same as a finding that there actually was a violation." Id. at 4, quoting Award at 2 (emphasis deleted). Moreover, the Agency claims that even if the Arbitrator had found a violation of the parties' agreement and Agency regulations, the Arbitrator's further finding that the requested relief was inappropriate should be sustained.
IV. Analysis and Conclusions
We will find an award deficient under section 7122(a) of the Statute when it is contrary to law, rule, or regulation, or is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union has failed to establish that the Arbitrator's award is deficient on any of these grounds. Accordingly, we will deny the exceptions.(2)
A. The Award Is Not Based on a Nonfact
We construe the Union's contention that the Arbitrator erred in finding that the Agency commenced the details of the grievants on February 21, 1990, as a contention that the award is based on a nonfact. To establish that an award is deficient because it 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, National Federation of Federal Employees, Local 259 and U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA 773, 780 (1992).
The Union's exception fails to establish that the award is deficient on this basis. Although the Union claims that the details actually began on October 6, 1991, the Union has not established that the Arbitrator's use of the February 21, 1990 date was clearly erroneous. In this regard, the Arbitrator found that the grievants' details stemmed from the Agency's decision to alter the work at live fire ranges and reassign personnel, and that this decision was made on February 21, 1990. The Union's exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence. The exception provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1372 (1993) (Bureau of Prisons).
B. The Arbitrator Did Not Improperly Evaluate the Evidence
The Union contends that the award is deficient because the Arbitrator misinterpreted or overlooked evidence that had been presented at the arbitration hearing. We construe this contention as a claim that the Arbitrator failed to properly evaluate the evidence. We further find that this exception provides no basis for finding the award deficient.
In raising its exception, the Union did not indicate in what manner the Arbitrator failed to consider evidence or how the Arbitrator misinterpreted the evidence that had been submitted to him. Rather, the Union is merely disagreeing with the Arbitrator's evaluation of the evidence and his determination of the weight to be accorded such evidence. As we stated, such an exception provides no basis for finding the award deficient. See U.S. Department of the Air Force 2750th Air Force Base Wing (AFLC), Wright-Patterson Air Force Base, Ohio and International Association of Machinists and Aerospace Workers, Local 2333, 48 FLRA 3, 5 (1993); Bureau of Prisons, 47 FLRA at 1372-73.
C. The Arbitrator Was Not Biased
The Union claims that the Arbitrator was biased by virtue of his finding that, although the details of the grievants violated the collective bargaining agreement and Agency regulations, the details were approved by OPM and, therefore, were proper. To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. See U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 784 (1993); U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 44 FLRA 1205, 1210 (1992). The Union has not demonstrated that the Arbitrator was biased under any of the above criteria.
Contrary to the Union's assertion, the Arbitrator did not find that the Agency had, in fact, violated the parties' agreement and Agency regulations. Rather, in articulating his reasons for denying the grievance, the Arbitrator found that the Agency "may" have committed a violation but that, in any event, OPM had approved the details. Award at 2. There is no evidence that the Arbitrator's conclusion did not result from a neutral assessment of the facts and evidence presented to him or was based on the type of conduct that would sustain a showing of bias. Moreover, even if the Arbitrator had clearly found a violation of the agreement and Agency regulations, the Arbitrator's denial of the grievance and the requested relief would not, without more, constitute a showing of bias. In our view, the Union is simply disagreeing with the Arbitrator's findings, reasoning, and conclusions and is attempting to relitigate the case before the Authority. Such an exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 966 (1993).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. We are unable to discern from the record the differences in duties between the positions of Target Device Worker and Target Device Servicer. Although the Union provided copies of the job descriptions for each position as attachments to the exceptions, the job description for the Target Device Worker was not clearly legible.
2. In light of our conclusion denying the Union's exceptions, it is unnecessary to address the Agency's claim that it did not receive the attachments to the exceptions and, as a result, that it be allowed to supplement its opposition. However, we note that on May 2