54:0014(3)AR - - NAGE, Local R14-142 and DOD, Defense Commissary Agency, Yuma, AZ - - 1998 FLRAdec AR - - v54 p14

[ v54 p14 ]
The decision of the Authority follows:

54 FLRA No. 3





LOCAL R14-142










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. Ag