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50:0187(35)AR - - AFGE, Local 1668 and HHS, Alaska Native Medical Center, Anchorage, AK - - 1995 FLRAdec AR - - v50 p187

[ v50 p187 ]
The decision of the Authority follows:

50 FLRA No. 35





LOCAL 1668










February 28, 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. Landau 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 two grievances that alleged that the Agency had failed to properly classify and describe the grievants' job positions.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievants requested revision of their job descriptions to reflect their current duties and grade level and sought backpay for the period during which their positions were assertedly misclassified. During the processing of the grievances, the grievants' positions were reclassified and their job descriptions were revised. Nonetheless, the grievances were submitted to arbitration. The Arbitrator framed the issues before him as follows:

1. Are the grievances arbitrable?

2. If so, did the Agency violate the Collective Bargaining Agreement by failing to properly classify or describe the grievants' positions?

3. If so, are the grievants entitled to back pay or any other relief?

Award at 1-2.

The Arbitrator concluded that to the extent the grievants sought to have their positions reclassified, the grievances were neither grievable nor arbitrable under section 7121(c)(5) of the Statute, the parties' agreement and Authority case law. The Arbitrator further determined that the grievants' requests for revised job descriptions had already been granted. Finally, the Arbitrator found that there was no basis under the Back Pay Act, 5 U.S.C. § 5596, or other pertinent Federal authorities to award the grievants backpay or retroactive reclassifications. As to the latter conclusion, the Arbitrator found that neither grievant was temporarily detailed to a higher-graded position, and there was no wording in the parties' agreement requiring a temporary promotion when employees perform duties at a higher grade level.

III. Exceptions

A. Union's Contentions

The Union asserts that the award is deficient because it is contrary to law, rule, or regulation, and on other grounds similar to those applied by Federal courts in the private sector. The Union contends that under the parties' agreement the grievants were entitled to equal pay for equal work and temporary promotions with backpay for performing higher-graded duties. The Union also argues that the Arbitrator could not have known at the time of the hearing that the grievants' job descriptions had been changed.

B. Agency's Opposition(*)

The Agency contends that the Union's arguments are unclear, rely on an inaccurate interpretation of the parties' agreement, and are not derived from the facts or the testimony of witnesses in this case. The Agency asserts that the award was properly derived from the parties' agreement and in accordance with regulation and Authority precedent.

IV. Analysis and Conclusions

We construe the Union's exception that the parties' agreement authorized the grievants' temporary promotions and receipt of backpay as an assertion that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this basis, 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. See, for example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). The Union has not demonstrated that the Arbitrator's interpretation of the parties' agreement is irrational, unfounded, implausible, or in manifest disregard of the agreement. Consequently, the Union's exception does not provide a basis for finding the award deficient.

We construe the Union's claim that the Arbitrator could not have known at the time of the hearing that the grievants' job descriptions had been changed as an allegation that the award is based on a nonfact. To establish that an award is deficient on this ground, 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. See, for example, U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). The Arbitrator found that prior to the arbitration hearing the grievants' job positions had been revised and that, at the hearing, the grievants expressed satisfaction with their new job descriptions. The Union has not established that these findings are clearly erroneous. Accordingly, this exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

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

*/ The Agency also contends that the Union's exceptions were deficient and should be dismissed because the Union failed to serve properly the exceptions on the Agency and provide copies of the attachments referenced in the exceptions. The Agency claims that it was disadvantaged by the failure to receive the attachments. Our records reveal that the Union corrected the deficiency as to proper service. Although the Union did not provide the attachments to the Agency, there is no basis on which to conclude that the Agency was harmed. Accordingly, we will consider the Union's exceptions. See U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269, 272 (1991).