[ v53 p1353 ]
The decision of the Authority follows:
53 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
SACRAMENTO AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE, CALIFORNIA
February 26, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Gerald R. McKay 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 grievance was not arbitrable. We conclude that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
A maintenance section at the air base has four WG-11 employees functioning as small shop chiefs. As set forth in their position descriptions, they perform supervisory duties for about 25 percent of their work time, including appraising the performance of a group of WG-10 mechanics in the bargaining unit. The Union filed a grievance on behalf of the mechanics, which claimed that their appraisal by the shop chiefs violated law, regulation, and the parties' collective bargaining agreement.
The Arbitrator noted that the essence of the grievance was that the mechanics did not want to be appraised by the shop chiefs and that to correct this problem, the Union "has sought to remove the obligation" from the position descriptions of the shop chiefs. Award at 9. The Arbitrator explained that although the Union couched its grievance in a manner that attempted to make it arbitrable, the Union's real request was to reclassify the shop chiefs by altering their obligation to supervise. However, the Arbitrator noted that altering their obligation to supervise would change the grade of their positions to WG-10. He found it difficult to understand how he would have the authority to adjust the classification of the shop chiefs under the terms of the grievance procedure. The Arbitrator concluded that if the Union wishes to reclassify the positions of the shop chiefs, it must do so in channels other than the grievance procedure.
The Arbitrator also considered "problematic" the Agency's assertion that the shop chiefs are not unit employees. Id. at 10. Although the Union argued that their unit status made no difference, the Arbitrator "wonder[ed] . . . how he ha[d] the authority to direct the [shop chiefs] not to perform a task which they are assigned as a result of a decision made by headquarters in establishing their PDs." Id.
For these reasons, the Arbitrator determined that the "Union has asked the arbitrator to do something that the Contract does not empower the arbitrator to do." Id. at 11. Accordingly, the Arbitrator ruled that the subject of the content of the position descriptions of the shop chiefs was not subject to the grievance and arbitration procedure.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is deficient on several grounds.
The Union contends that the award is deficient because it fails to draw its essence from the agreement. The Union argues that the award is deficient because Article 17, Section 17.03 allows for grievances concerning the content of a position description.
The Union contends that the award is deficient because the Arbitrator misconstrued the Union's requested remedy. The Union maintains that in its post-hearing brief, it had modified its requested remedy to limit the modification of the position descriptions to remove only the appraisal duties, not all of the supervisory duties, as stated by the Arbitrator in his award. The Union asserts that to remove only the appraisal duties would not have changed the grade of the positions.
The Union contends that the award is deficient because the Arbitrator improperly accepted the Agency's position on the unit status of the shop chiefs. The Union has submitted exhibits that it maintains show that three of the positions are in the unit.
The Union contends that the award is deficient because it is contrary to 5 C.F.R. § 335.103, which sets forth merit promotion requirements. The Union contends that because the Agency fails to comply with merit promotion requirements, the award is contrary to section 335.103.
B. Agency's Opposition
The Agency contends that the Union's exceptions should be denied. The Agency contends that the issue before the Arbitrator involved classification and that the Arbitrator correctly concluded that it was an issue beyond his authority. In addition, the Agency objects to consideration of the Union's exhibits because the exhibits were not, but could have been, presented to the Arbitrator.
IV. Analysis and Conclusions
A. The Award Draws its Essence from the Agreement
The Arbitrator interpreted and applied the collective bargaining agreement in concluding that the subject of the content of the position descriptions of the shop chiefs was not arbitrable. He based this conclusion, in part, on a finding that the Union's real request was to reclassify the shop chiefs by altering their obligation to supervise and that such a matter was not arbitrable under the agreement. The Union has not demonstrated that such an interpretation of the agreement disregards the agreement or is implausible, irrational, or unfounded. See American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 52 FLRA 1518, 1521 (1997) (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990)). Consequently, the Union's exception provides no basis for finding that the award fails to draw its essence from the agreement. Accordingly, we deny this exception.
B. The Arbitrator Did Not Misconstrue the Union's Position and the Award Is Not Based on a Nonfact
The Arbitrator accurately stated and acknowledged the Union's position in finding that the grievance was not arbitrable. The Arbitrator specifically noted that the essence of the grievance was that the mechanics did not want to be appraised by the shop chiefs and that to correct this problem, the Union "has sought to remove the obligation" from the position descriptions of the shop chiefs. Award at 9. In addition, the Arbitrator repeatedly referred to the Union's request as one to alter the position description or the obligation to supervise. Accordingly, the Union's contention provides no basis for finding the award deficient.
Moreover, to the extent that the Union is asserting that the Arbitrator erred in finding that altering the obligation to supervise would lower the grade of the shop chief positions, we view that assertion as a claim that the award is based on a nonfact. To establish that an award is based on a nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See 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 (1993). However, we will not find an award deficient on the basis of any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). In this case, it is clear that the parties disputed before the Arbitrator the effect on the grade of the shop chief positions if the obligation to supervise were altered. Consequently, the Union's assertion provides no basis for finding the award deficient as based on a nonfact.
Accordingly, we deny these exceptions.
C. The Unit-Status Question Provides No Basis For Finding the Award Deficient
We are not persuaded that the Arbitrator found that the grievance was not arbitrable based on the acceptance, without proof, of the Agency's assertion that the shop chiefs were not unit employees. To the contrary, the Arbitrator merely found that the unit-status question was "problematic." Award at 10. Even if we were to assume that the Arbitrator found that the grievance was not arbitrable by accepting the position of the Agency on the unit status of the shop chiefs, the Arbitrator separately and independently found that the grievance was not arbitrable because, in essence, it requested reclassification. Because the Union provides no basis for finding this ground on which the Arbitrator relied deficient, focusing on the Arbitrator's treatment of the unit status of the shop chiefs cannot establish that the award is deficient. See Indian Educators Federation, New Mexico Federation of Teachers and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque and Navajo Areas, Albuquerque, New Mexico, 53 FLRA 352, 361 (1997) (because the union had failed to establish that other grounds on which the arbitrator found that the grievance was not arbitrable were deficient, focusing on another separate ground on which the arbitrator found that the grievance was not arbitrable could not establish that the award was deficient). Accordingly, we deny this exception.(*)
D. The Award Is Not Contrary to 5 C.F.R. § 335.103
At arbitration, the Union alleged that the appraisal of the mechanics by the shop chiefs violated merit promotion requirements set forth in section 335.103. The Arbitrator did not address the merits of this claim because he found that the grievance was not arbitrable. As the award does not address merit promotion requirements and nothing in the award permits the Agency to ignore the requirements of section 335.103, the Union's exception provides no basis for finding the award deficient. See U.S. Department of Defense, National Guard Bureau, Michigan Air National Guard and Association of Civilian Technicians, Michigan State Council, 48 FLRA 755, 762 (1993) (because the arbitrator did not address the merits of the claimed violation of regulation, finding that the matter was not arbitrable, and because nothing in the award required the agency to ignore the regulation, the Authority rejected the contention that the award was deficient because it did not require the agency to follow its own regulations).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ In denying this exception, we have not considered the Union's exhibits. It is not disputed that the exhibits were in existence at the time of the arbitration hearing, but were not presented to the Arbitrator. Consequently, consideration of the exhibits is precluded by section 2429.5 of the Authority's Regulations. See National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 520 (1997).