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The decision of the Authority follows:
54 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
April 17, 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 John W. Boyer, Jr., filed by both the Union and the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency also filed an opposition to the Union's exceptions.
The Arbitrator concluded that the Agency did not detail the grievant to a higher-graded position, and the Arbitrator split the costs of the arbitration between the parties. For the following reasons, we conclude that the parties have 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
When the Agency determined that it needed an employee to "provide direction for night shift employees" at the commissary, it detailed the grievant to the position for 14 months. Award at 2, 3. The Commissary Officer completed paperwork, which designated the grievant as a "Store Worker Supervisor," and which provided that the grievant would maintain the same pay he had as a store worker. The regional personnel officer disapproved this action because there were no vacant supervisory positions at that time. The regional personnel officer described the grievant's duties as an "Unclassified Group of Duties." Id. at 3-4.
The Union filed a grievance after the completion of the detail. The Union requested, as relevant here, that the Agency promote the grievant from a WG-05/05 store worker to a WS-05/03 work supervisor as required under Article 31, Section 6 of the parties' collective bargaining agreement.(1) When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator framed the issue as follows:
Did the Agency violate the Agreement when it refused to compensate the Grievant as a Work Supervisor for the period he was allegedly detailed as "night supervisor?" If so, what shall be the appropriate remedy?
Id. at 2.
The Arbitrator found that the Commissary Officer sent to all commissary employees a memorandum stating that the grievant had been detailed to the position of night supervisor. Id. at 5. However, the Arbitrator concluded that the grievant did not perform the duties of a supervisor, because he did not have the authority to "hire, fire, transfer, [or] discipline[.]" Id. at 15.
Although the Arbitrator concluded that the grievant did not perform supervisory duties, the Arbitrator noted that the grievant was never informed of the regional personnel manager's decision not to classify the grievant's temporary position as supervisory. Id. at 21. Additionally, the Arbitrator stated that the grievant could have believed he was performing supervisory duties based on the Commissary Officer's memorandum describing the grievant as the "ni[ght] supervisor." Id. The Arbitrator concluded that this matter might not have been submitted to arbitration if the Agency had made clear to the grievant that his detail was not to a supervisory position. Thus, the Arbitrator split the costs of the arbitration between the parties pursuant to Article 44, Section 6 of the collective bargaining agreement.(2) Id. at 24.
III. Positions of the Parties
A. Union's Exceptions
1. Union's Contentions
The Union asserts that the award is contrary to law because "well documented standards of contract interpretation did not provide the basis for this decision[.]" Exceptions at 2 (emphasis in original). According to the Union, the Arbitrator should have considered an affidavit from the Assistant Commissary Officer, stating that the grievant was detailed to a supervisory position. Id. at 3, and Attachment C. Additionally, the Union argues that the Arbitrator failed to apply "well documented standards" of contract interpretation, because the "award is not supported by [a] preponderance of [the] evidence." Exceptions at 4.
The Union also contends that the award unjustly enriches the Agency, because the [grievant] "reasonably relied to his detriment on promises [of a temporary promotion] made by the Agency not in conflict with the collective bargaining agreement." Id. at 5. The Union asserts that the Arbitrator recognized that the Agency made a promise to the grievant, and that the grievant relied on that promise to his detriment.
Finally, the Union asserts that the award is deficient because it fails to draw its essence from the collective bargaining agreement. The Union argues that the Arbitrator failed to apply Article 31, Section 6 of the collective bargaining agreement, which provides that "[e]mployees detailed to higher graded positions will be temporarily promoted (if otherwise eligible and qualified) on the 31st day[.]" Id. at 8.
2. Agency's Opposition
The Agency states that the Union has not adequately supported its exception alleging that the award is contrary to law. Additionally, the Agency asserts that the Union's contention that the Arbitrator failed to consider the Assistant Commissary Officer's affidavit is not an adequate basis to find the award contrary to law. In response to the Union's unjust enrichment argument, the Agency argues that the Union "offered no relevant evidence at the hearing to show exactly how [the Agency] was 'enriched' justly or unjustly." Id. at 4.
B. Agency's Exception
The Agency excepts to the portion of the award allocating half of the costs of the arbitration to the Agency. The Agency argues that the award fails to draw its essence from the collective bargaining agreement, because the Arbitrator misapplied Article 41, Sections 6 and 7 when he split the costs. The Agency relies on Section 6, which states that in cases where one party loses, the losing party must pay arbitration costs, and Section 7, which states that the Arbitrator may not expand Section 6 in any way. The Agency argues that, because the Union was the losing party, the Union must pay the entire cost of the arbitration.
The Union does not respond to the Agency's exception.
IV. Analysis and Conclusions
A. The Award is not Based on Nonfacts
The Union asserts that the award is contrary to law and that the award unjustly enriches the Agency, because the Arbitrator misapplied the facts. In particular, the Union asserts that the Arbitrator misapplied "well documented standards of contract interpretation[.]" Exceptions at 2. However, the Union does not cite any law, rule, or regulation to support this assertion and, instead, argues that the Arbitrator failed to consider "material evidence," and that the award "is not supported by [a] preponderance of [the] evidence." Id. at 4. In effect, the Union is asserting that the Arbitrator, in finding that the grievant did not perform supervisory duties, based the award on an incorrect interpretation of the facts. Accordingly, we construe these assertions as an exception that the award is deficient because it is based on nonfacts.(3)
The Authority has held that 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).
The Union's assertions challenge the Arbitrator's determination that the grievant did not perform supervisory duties. This issue was clearly disputed below. Award at 14-19. As such, we find that the award is not deficient as based on nonfacts.
B. The Award Does Not Fail to Draw its Essence from the Collective Bargaining Agreement
1. The Award Does Not Fail to Draw its Essence from Article 31, Section 6
The Union asserts that the award fails to draw its essence from the parties' agreement because under Article 31, Section 6, the grievant should have been promoted on the 31st day of his detail, if he was performing work at a higher grade. Although the Union argues that the grievant was performing work at a higher grade, the Union has provided no basis for finding that the Arbitrator wrongly concluded the grievant was not performing work at a higher grade. Thus, we find that the Union has not demonstrated that the award fails to draw its essence from the agreement.
2. The Award Does Not Fail to Draw its Essence from Article 44, Sections 6 and 7
According to the Agency, the award fails to draw its essence from the collective bargaining agreement because the Arbitrator violated Article 44, Sections 6 and 7 of the parties' agreement when he split the costs of the arbitration between the parties. The Arbitrator explained that he split the costs between the parties because he was "compelled to conclude [that] the Agency should equally share responsibility and/or 'fault' for the matter, and be obligated to equally share the costs of the proceeding[.]" Award at 22. The Agency has provided no basis for finding the Arbitrator's interpretation of Article 44 implausible, irrational, or unconnected to the wording of the agreement. Thus, we find that the Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement.
The parties' exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 31, Section 6 states in pertinent part:
Section 6. Employees detailed to higher graded positions will be temporarily promoted (if otherwise eligible and qualified) on the 31st day, if the detail exceeds 30 days, and the detail was not taken at the employees['] written request. . . .
2. Article 44 states in pertinent part:
Section 6. The Arbitrator's fees and expenses shall be borne by the losing PARTY. The Arbitrator shall determine the losing PARTY. If there is a split decision in which neither PARTY can be designated as the losing PARTY, the costs shall be borne equally. Where the UNION and the EMPLOYER mutually request a transcript, the expense will be shared, otherwise, the PARTY requesting the transcript shall bear the expense. The PARTIES shall equally share the expenses of any mutually agreed upon services.
Section 7. The Arbitrator will not change, modify, alter, delete, or add to the provisions of this Agreement. This right is the prerogative of the PARTIES only.
3. Where a party's exception involves an award's consistency with law, the Authority reviews the questions of law raised by the arbitrator's award and the party's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). Because we construe the Union's argument as an exception that the award is based on a nonfact, we do not review the questions presented de novo.