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51:1640(136)AR - - Intl. Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission - - 1996 FLRAdec AR - - v51 p1640

[ v51 p1640 ]
The decision of the Authority follows:

51 FLRA No. 136













July 26, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Diane Dunham Massey 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that the Agency did not violate the parties' collective bargaining agreement by concluding that a pilot must, at the least, board a vessel in order to receive a credit for an Unscheduled Assignment Bonus (UAB) under the parties' agreement. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient because it fails to draw its essence from the agreement. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievants, pilots for the Agency, are responsible for piloting vessels through the Panama Canal. Both grievants reported to work for previously unscheduled assignments but, due to various operational and weather considerations, were released from their assignments prior to boarding a vessel. As a result, the grievants contended that they were eligible for a UAB, which grants pilots a bonus for each unscheduled assignment.(1)

The parties stipulated the issues before the Arbitrator as follows:

1. Whether the release of the Grievants before boarding the vessel counts as an assignment for the purpose of paragraphs 11 and 12 of the [MOU] between the Parties?

2. If so, what is the appropriate remedy?

3. Which employees are entitled to relief, if it is so ordered?

Award at 2.

The Arbitrator noted that the parties each defined an assignment, for purposes of a UAB, differently -- the Union's interpretation requiring a pilot to merely "report" to work to qualify and the Agency requiring a pilot to at least board a vessel before being eligible. In addition to provisions contained in the text of the MOU, the Union relied on provisions contained in Appendix A to the MOU.(2) The Arbitrator reviewed the provisions cited by the Union but found the Agency's interpretation consistent with her analysis of paragraphs 11 and 12 of the MOU.

Interpreting paragraphs 11 and 12 of the MOU, the Arbitrator found that paragraph 11 speaks in terms of working "'piloting assignments[,]'" which are defined in paragraph 12 as "'transit, partial, harbor, or shuttle[.]'" Award at 27-28. Based on these provisions, she concluded that "[c]ommon sense dictates" that merely being scheduled or reporting for a piloting assignment does not constitute "working a piloting assignment." Id. at 28. The Arbitrator also concluded that because Appendix A is specifically designated as "'not part of the Agreement'" it was not entitled to "equivalent deference" even though it appears to contradict paragraphs 11 and 12 of the MOU. Id. at 27.

The Arbitrator also considered evidence of memoranda, past practice, and bargaining history, finding it consistent with the Agency's interpretation of the MOU. The Arbitrator noted that, pursuant to past practice, work was performed when a pilot boarded a vessel assigned to him. Additionally, although the Arbitrator noted that the bargaining history was unclear, she found that it "[did] not indicate that the Agency acted inconsistently with its position during negotiations with the Union." Id. at 31.

The Arbitrator concluded that a pilot must, at the least, board a vessel to qualify for a UAB. Accordingly, the Arbitrator denied the grievance.

III. Exceptions

A. Union's Exceptions

The Union argues that the award is deficient because it does not draw its essence from the collective bargaining agreement. The Union contends that the Arbitrator failed to consider a side bar agreement (Appendix A) to the MOU and amendments to Article 17 of the master agreement. This failure, the Union argues, unjustifiably revoked the UAB to which grievants were allegedly entitled. Furthermore, the Union maintains that Ficks Reed Co. v. Local Union 112, Allied Industrial Workers of America, AFL-CIO, 965 F.2d 123 (6th Cir. 1992) (Ficks Reed), holding that a side bar agreement and an agreement negotiated and signed on the same day constituted a single collective bargaining agreement, is applicable in establishing that Appendix A is part of the October MOU.

B. Agency's Opposition

The Agency argues that the Union's exceptions merely disagree with the Arbitrator's findings and, as such, provide an insufficient basis upon which to find the award deficient. The Agency counters that, in light of the parties' stipulation of the issues, the Arbitrator's interpretation of paragraphs 11 and 12 was appropriate. As to the alleged disregard of Appendix A, the Agency argues that it was properly considered. The Agency also claims that the Arbitrator's failure to mention Article 17 does not establish that she did not consider it in making the award.

IV. Analysis and Conclusions

To find an award deficient as failing to draw its essence from a collective bargaining agreement, the party making the allegation must prove that the award is: (1) so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the Arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA).

The Arbitrator focused her interpretation on paragraphs 11 and 12 of the MOU, properly confining her analysis to the issues stipulated before her. In addition, the Arbitrator examined Appendix A and concluded that, based upon its express language, greater deference was due paragraphs 11 and 12. Nothing in the Arbitrator's interpretation of this language or her conclusion that paragraphs 11 and 12 require a pilot to do more than merely report for work is irrational, unfounded, implausible, or in manifest disregard of the agreement. Moreover, as found by the Arbitrator, past practice and bargaining history also support the conclusion that some kind of work, such as boarding a vessel, must be done to qualify for the UAB.

The Union's reliance on Ficks Reed is misplaced. Specifically, in Ficks Reed the court found that there was no "express language [suggesting] that the Contract [main agreement] supersedes the Strike Replacements Agreement [side bar agreement]." 965 F.2d at 125. In this case, Appendix A, although negotiated and signed on the same day as the MOU, contains an express provision that separates it from the MOU.

Finally, although there is no mention of Article 17 in the award, the fact that an award "does not address specific provisions of an agreement does not establish that such provisions were not considered by the arbitrator and does not provide a basis for finding the award deficient." U.S. Department of the Army, Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 45 FLRA 480, 482 (1992).

As the Union has not demonstrated that the award fails to draw its essence from the parties' agreement, its exceptions provide no basis for finding the award deficient on this ground. OSHA, 34 FLRA at 576.

V. Decision

The Union's exceptions are denied.

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

1. This bonus provision was added by an October 14, 1994 Memorandum of Understanding (MOU), which provides in pertinent part:

11. [P]ilots will not be required to work more than the following piloting assignments:

a) 6x4 Plan--Nine (9) assignments per pay period.

b) Regular Plan--Seven (7) assignments per pay period.

c) Annual--One hundred thirty five (135) assignments in an administrative leave year . . . .

in the event traffic demands require a pilot to work more than the above stated assignment limitations, he will be paid an Unscheduled Assignment Bonus for each such assignment.

12. Piloting assignments are defined as: transit, partial, harbor, or shuttle and will count towards the nine (9) and seven (7) assignment restrictions per pay period and the one hundred thirty five (135) annual assignment restriction as set forth in Paragraph 11, . . .

Award at 4-5.

2. Appendix A states that it "is not part of the Agreement." Award at 5. As pertinent here, Appendix A provides:


. . . .

(d) Unscheduled Assignment. A bonus equal to the full daily forfeiture rate for the pilot's grade level will be paid to pilots who report for an unscheduled assignment as provided by Article 17, Section 7 (k) and Section 14 (a) paragraphs 5 and 6 of the Collective Bargaining Agreement.


. . . .


. . . .

SECTION 9. Calculation of Duty Time

(2) For pay purposes, time of commencement of duty is the time the pilot was scheduled to report to work or actual time the pilot reports to work, whichever is later, . . .

Union Exceptions, Attachment D.