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The decision of the Authority follows:
50 FLRA No. 27
FEDERAL LABOR RELATIONS AUTHORITY
ANTILLES CONSOLIDATED EDUCATION ASSOCIATION
U.S. DEPARTMENT OF DEFENSE
ANTILLES CONSOLIDATED SCHOOL SYSTEM
FORT BUCHANAN, PUERTO RICO
February 22, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert W. Kilroy 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 involuntary reassignment of certain unit employees.
For the reasons that follow, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency made involuntary reassignments of certain unit employees from their respective schools to other schools in the same commuting area, effective at the beginning of the new school year. The employees were not afforded extra time to prepare for or effectuate their moves and, therefore, made the transition to their respective newly assigned schools on their own time. The Union grieved the reassignments and the grievance was submitted to arbitration.
As relevant here, the Arbitrator framed the issue presented by the grievance as whether the Agency violated Article 19, section h(4) of the parties' agreement by involuntarily reassigning the employees.(*)
The Arbitrator found that Article 19, section h(4) did not clearly define what, if any, compensated time would be allowed for employees to make the transition to their new positions and schools and concluded that this section vested the Agency with the sole discretion to make these determinations. The Arbitrator determined that the provision required only that the Agency explain to employees the reasons for their involuntary reassignment and give them instructions as to where are they are reassigned. The Arbitrator found that the Agency complied with those requirements. Consequently, the Arbitrator denied the grievance.
A. Union's Contentions
The Union contends that it is unlikely that the Arbitrator considered its post-hearing brief because he issued his award on the same day that he received the brief and because he stated in his award that certain facts, which the Union disputed in its brief, were uncontradicted. The Union also contends that the award is based on nonfacts because the Arbitrator erroneously found that many of the Agency's factual claims were uncontradicted. Finally, the Union contends that the Arbitrator erred in concluding that Article 19, section h(4) vested the Agency with sole discretion to decide whether to grant the grievants a reasonable amount of time to accomplish the transition to their new positions and schools.
B. Agency's Opposition
The Agency contends that the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation of the facts, evaluation of the evidence, and his interpretation of the parties' agreement.
IV. Analysis and Conclusions
We construe the Union's argument that the Arbitrator did not consider its post-hearing brief as a contention that the Arbitrator failed to conduct a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA No. 25, slip op. at 3 (1995). Even assuming, as asserted by the Union, that the Arbitrator did not consider its post-hearing brief, the Union has not demonstrated that that aspect of the Arbitrator's conduct of the proceeding resulted in prejudice to the Union which affected the fairness of the proceeding as a whole. Consequently, the Union has failed to show that the Arbitrator failed to conduct a fair hearing and we deny this exception. See National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, 49 FLRA 1126, 1136, 1142 (1994) (Customs Service).
We also reject the Union's contention that the award is based on nonfacts. We will find an arbitration award deficient because it is based on a nonfact when the party making such a claim establishes that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, New Mexico National Guard, Albuquerque, New Mexico, 45 FLRA 1045, 1048 (1992). The Union has not established that the disputed factual findings constitute the central facts underlying the award, that the findings are clearly erroneous, or that but for those findings the Arbitrator would have reached a different result. Consequently, the Union has not established that the award is based on nonfacts and we deny the Union's exception. See Customs Service, 49 FLRA at 1136, 1142.
We construe the Union's contention that the Arbitrator erred in interpreting Article 19, section h(4) as an assertion that the award fails to draw its essence from the parties' agreement. To demonstrate that an award is deficient on this ground, a party must show that an 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 working 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 U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1211 (1991). The Union has not established that the award is deficient under any of these tests. As such, the exception provides no basis for finding the award deficient and we deny it. See, for example, U.S. Department of the Army, U.S. Army Support Command, Fort Shafter, Hawaii and International Association of Machinists and Aerospace Workers, AFL-CIO, Hawaii Federal Lodge 1988, 48 FLRA 777, 781 (1993).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ Article 19, section h(4) of the parties' collective bargaining agreement provides, in pertinent part:
Section h: When the Employer decides to fill a position from among unit employees on a reassignment . . . which is expected by the employer to be on a continuing basis, the unit employee selected will be briefed as to the reasons for such assignment and to whom and where to report for duty. In this case, the following procedures apply:
. . . .
(4) To the extent warranted by the circumstances, the Employer will provide, subject to the final approval of the Superintendent or designee, some reasonable time for the transition to the position and duty point.