[ v53 p1605 ]
The decision of the Authority follows:
53 FLRA No. 141
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL 2333
U.S. DEPARTMENT OF THE AIR FORCE
88TH AIR BASE WING
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
March 20, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Theodore H. Ghiz 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 denied a grievance challenging the Agency's assignment of a Union steward to night shift hours, allegedly in violation of the parties' agreement.
We conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union notified the Agency, in February 1995, that the grievant was appointed a shop steward. At that time, he was working day shift hours. In April 1995, the grievant was assigned to work night shift hours for at least 2 pay periods. The grievant claimed that the Agency's decision to assign him to work night shift hours violated Article 5, Section 5.6 of the parties' collective bargaining agreement.(1)
As relevant here, the Arbitrator determined that, prior to 1995, the parties had entered into an agreement (hereinafter the "Shift Action Memo") that gave the Agency the authority to establish a permanent rotating night shift. Employees assigned to this shift would be required to rotate, on occasion, from the day shift to the night shift. The Arbitrator also found that the parties, during negotiations concerning the Shift Action Memo, did not discuss exempting shop stewards from the permanent rotating night shift.
The Arbitrator noted that because only one of the employees in grievant's shop, also a union steward (hereinafter the "second steward"), had voluntarily elected to remain on the night shift, there was a need to rotate other employees to that shift. In addition, the Arbitrator, relying on the testimony of a Logistics Group Commander (hereinafter the "Group Commander") and time records, stated that the second steward occasionally rotated to the day shift for training purposes.
The Arbitrator determined that the grievant had been, since 1993, officially assigned to the permanent rotating night shift, despite the fact that he was working day shift hours at the time of his appointment as shop steward. Thus, the Arbitrator concluded that the Agency's decision to assign the grievant to work night shift hours did not violate Article 5, Section 5.6 of the parties' agreement, because it did not constitute a change in the grievant's shift. The Arbitrator consequently denied the grievance.
III. Positions of the Parties
The Union seeks review on two grounds. First, the Union argues that the Arbitrator based his decision on fraudulent testimony and evidence presented by the Agency. Specifically, the Union asserts that the Arbitrator's decision hinges upon the Group Commander's testimony that the second steward occasionally rotated to the day shift for training purposes. The Union claims that the second steward stated, in a pre-hearing interview, that he had not rotated, for any purpose, in an entire year. Additionally, the Union asserts that the Group Commander presented, at the hearing, time records showing that the second steward had rotated on several occasions. The Union claims that the second steward asserted, in a post-hearing interview, that the Group Commander's representations were false, and provided the Union with pay receipts showing that he had not rotated for the entire year of 1996.(2)
Second, the Union asserts that the Arbitrator violated the parties' agreement by ignoring Article 37, Section 37.8,(3) and allowing the Shift Action Memo to supersede Article 5, Section 5.6 in the assignment of Union stewards. The Union contends that the Arbitrator thereby "clearly exceeded" his authority under Article 33, Section 33.6 of the parties' agreement.(4) Exceptions at 1.
The Agency denies the Union's assertion that it presented fraudulent testimony or evidence at the arbitration hearing. The Agency asserts that the second steward's time cards introduced at the hearing do not conflict with the pay receipts submitted by the Union with its exceptions. In addition, the Agency argues that, even if the Group Commander misspoke at the hearing, an inaccurate statement is not sufficient to establish fraud. Further, the Agency notes that the Arbitrator neither mentioned the second steward's name, nor gave any indication that he based his decision upon whether that steward rotated. Thus, the Agency contends that the alleged fraud does not provide a basis for reversing the award.
The Agency also claims that Article 37, Section 37.10 of the parties' agreement allows the parties to enter into binding mid-term agreements concerning subjects that the agreement does not address.(5) Because the agreement does not address the permanent rotating night shift, the Agency asserts that the Shift Action Memo is a permissible supplement to the agreement. The Agency also contends that the grievant was assigned to the permanent rotating night shift prior to his appointment as shop steward, and, therefore, the Agency did not violate Article 5, Section 5.6 by scheduling him to work night shift hours.
A. The Union's Assertion That The Award Is Based Upon Fraudulent Evidence and Testimony Does Not Demonstrate That The Award Is Deficient
We construe the Union's assertion that the award is based upon fraudulent evidence and testimony as an argument that the award was procured by fraud, or, in the alternative, that the award is deficient because it is based on a nonfact. For the reasons explained below, the award is not deficient on either of these grounds.
1. The Award Was Not Procured by Fraud
Under section 7122(a)(2) of the Statute, the Authority will find an award deficient on grounds similar to those applied by federal courts in private sector labor relations cases. Federal courts will find an arbitration award deficient in the private sector when it is established that the award was obtained by fraud. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 49 FLRA 1096, 1099 (1994) (Metal Trades Council). Among other things, misconduct by representatives of a party, such as the use of perjured testimony or misrepresentations to an arbitrator, constitutes obtaining an award by fraud. Id.
In order to find an award deficient on this basis, the fraud: (1) must not have been discoverable on the exercise of due diligence prior to arbitration; (2) must materially relate to an issue in the arbitration; and (3) must be established by clear and convincing evidence. Id. at 1099. Even assuming that the Union could not have discovered the alleged fraud concerning the shifts of the second steward prior to arbitration, there is no basis on which to find either that this evidence was material, or fraudulent.
With respect to materiality, the Arbitrator's statement that the second steward sometimes rotated to the day shift does not establish that this materially related to an issue in the arbitration. Nor has the Union established by clear and convincing evidence that the testimony and documentation about this matter was fraudulent. The "Civilian Leave and Earnings Statement[s]" submitted by the Union for the period from January 6, 1996 through December 7, 1996 indicate that the second steward remained on the "second shift" during that entire period. See Attachment to Exceptions. The Agency's documentation shows the same thing. Thus, the Union has not established how this undercuts the Agency's documentation, let alone that it is clearly and convincingly false.
In addition, the parties apparently disagree as to whether the Group Commander's testimony regarding the second steward's shift rotation was put forth as a statement of fact, or of opinion. See Agency's Opposition at 6 (noting that the Group Commander "indicated that . . . he did not have direct, personal knowledge" of the second steward's work schedule). However, as the Union failed to provide copies of the hearing transcripts, it is not possible to determine the exact nature of his testimony at the hearing. Therefore, the Union has not established that such testimony was fraudulent. See Metal Trades Council, 49 FLRA at 1101 (concluding that the union's exception failed to establish that the award was obtained by fraud, as it was impossible to tell without the hearing transcripts whether the relevant testimony was perjured).
Accordingly, the Union has not established that the award is deficient because it was procured by fraud.
2. The Award Is Not Based On A Nonfact
To establish that an award is based on a nonfact, the excepting party 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. 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). A party may not raise nonfact allegations concerning a matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).
As the facts concerning the second steward's shift were disputed at arbitration, we will not find the award deficient on the basis of the Arbitrator's factual determination. Accordingly, the Union has not established that the award is deficient because it is based on a nonfact.
B. The Union's Assertion That the Arbitrator Exceeded His Authority Under the Parties' Agreement Does Not Demonstrate That the Award Is Deficient
We construe the Union's argument that the Arbitrator exceeded his authority under the parties' agreement as an assertion that the award does not draw its essence from the parties' agreement.
In order to demonstrate that an award fails to draw its essence from the parties' agreement, the excepting party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the 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. U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997) (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990)).
The Arbitrator found the language of Article 5, Section 5.6 "clear and unambiguous." Award at 5. He applied that section's mandate that "the Employer will . . . assign . . . stewards to the shift and work hours to which they were assigned at the time of their election or appointment . . . ." Id. After finding that the grievant was on the permanent rotating night shift at the time of his appointment as shop steward, the Arbitrator concluded that no change was made in the grievant's tour of duty when he was subsequently assigned to work the night shift for a specified period of time. Thus, the Arbitrator applied the explicit terms of Article 5, Section 5.6 in reaching his conclusion. Accordingly, the Union has failed to establish that the award is deficient because it fails to draw its essence from the parties' agreement.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 5, Section 5.6 provides, as relevant here, that the Agency will "assign stewards to the shift and work hours to which they were assigned at the time of their election or appointment[.]"
2. The Union submitted with its exceptions photocopies of these "pay receipts" -- actually "Civilian Leave and Earnings Statement[s]."
3. Article 37, Section 37.8 provides, in relevant part, that "[n]o other agreements . . . will supersede this agreement."
4. Article 33, Section 33.6 provides, in pertinent part, that"[t]he arbitrator shall have no authority to modify, amend, revise, add to or subtract from any of the terms of this Agreement[.]"
5. Section 37.10 provides, in pertinent part, that "this contract contains no waiver of the union's right to negotiate over mid-term changes not covered in the contract."