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55 FLRA No. 36
U.S. INFORMATION AGENCY
VOICE OF AMERICA
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
February 26, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Fred Blackwell filed by 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by assigning work performed in Studios 1-19 by radio broadcast technicians in the Union's bargaining unit to non-unit employees in other locations.
For the foregoing reasons, we conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
A class action grievance was filed by the American Federation of State, County, and Municipal Employees (Union). The grievants are radio broadcast technicians (RBTs) who are employed by the International Broadcasting Bureau of the Voice of America (VOA). The RBTs operate and maintain VOA's radio broadcast equipment. The grievance alleged that the Agency's assignment of radio/TV simulcasts in Studio 47 and "walk-in production" work in Language Area Production (LAP) studios to non-unit employees violated the work jurisdiction clause of the parties' collective bargaining agreement. The work jurisdiction clause had been imposed by an interest arbitration award. [n2]
The grievance was not resolved and went to arbitration on the following stipulated issues:
The application of the interest arbitrator's award regarding jurisdiction in the Agency's assignment of work in connection with --
(1) work in Studio 2 and Studio 47; and
(2) Walk-in Studio work and work in LAP Studios.
Has the Agency violated the interest arbitrator's award?
If so, what is the remedy?
Award at 3.
The Arbitrator made the following findings and conclusions in sustaining the grievance. In reaching his determinations, the Arbitrator construed and applied the work jurisdiction clause which provides, in relevant part, that:
a. The operation and maintenance of analog radio audio broadcast equipment in the core studios (studios 1 -19) will be assigned exclusively to NFFE- represented RBTs.
Award at 4-5. [n3] The Arbitrator found that this clause was "unambiguous and that a plain, ordinary reading of its text" indicated "a clear intent to vest in the RBTs . . . the exclusive right to perform work that entails the operation of analog radio audio equipment used in programs under the Agency's control and that the RBTs were performing on the effective date of the work jurisdiction clause." Award at 9. Examining the interest arbitrator's award, as well, the Arbitrator determined that the work jurisdiction clause was focused on the work, and not on the location at which the work was performed. [ v55 p198 ]
In addressing the first issue before him, the Arbitrator found that the operation and maintenance of analog radio equipment in connection with radio-TV simulcasts in Studio 47 by non-unit employees was the type of work performed by unit employees in Studio 2 at the time of the interest arbitration award. Award at 11. Consequently, and in view of the findings above, the Arbitrator determined that the Agency violated the work jurisdiction clause of the agreement "by its action of assigning the operation of analog radio audio broadcast equipment in Studio 47 to non-[u]nit [e]mployees . . . ." Id.
As to the second issue before him, the Arbitrator concluded that the operation and maintenance of analog radio equipment used in short segment "walk-in" recordings was work performed by unit employees. Specifically, the Arbitrator stated that "[t]he work referenced here is work that is vested, exclusively, in the RBTs, by virtue of the fact that they were performing this work in the Walk-in [s]tudios when their work jurisdiction clause became effective in May 1995, and before it was transferred to the LAP [s]tudios." Id. Consequently, the Arbitrator determined that the Agency's assignment of that work to non-unit employees violated the work jurisdiction clause of the parties' agreement.
However, the Arbitrator also recognized that LAP personnel who are non-unit employees are entitled to perform work that they performed when the RBTs' work jurisdiction clause became effective. The Arbitrator noted that although the Agency did not establish that the work relating to the LAP recordings formerly done by the RBTs in the walk-in studios no longer exists, the possibility "may eventuate in the future." Id. at 12. Therefore, the Arbitrator provided if the Agency were to find that "no work under the scope of the [RBT] work jurisdiction clause is being performed by non-[u]nit [e]mployees in the LAP studios, [then] the cease and desist directive concerning LAP studios [would] cease to be operative and either or both parties may petition the Arbitrator for further directions/and or proceedings." Id.
In sum, the Arbitrator sustained the grievance. The Arbitrator directed the Agency to cease and desist the violations found in his award. Id. at 13. The Arbitrator also retained jurisdiction over the matter for 90 days to assist the parties regarding questions about the award. Id.
III. The Arbitrator Did Not Exceed His Authority
A. Positions of the Parties
The Agency contends that the Arbitrator exceeded his authority in several respects by resolving issues not presented to him. First, the Agency claims that the Arbitrator focused on problems that may arise after the parties' agreement expires. Second, the Agency argues that the Arbitrator awarded jurisdiction to RBT technicians over not only "analog" radio audio equipment but also over digital equipment. Exceptions at 12. Third, the Agency argues that the Arbitrator's award does not confine itself to "Mandarin simulcasts" which were carried on by the RBTs at the time of the interest arbitration. Id. According to the Agency, the Arbitrator awarded jurisdiction over all simulcasts from Studio 47.
The Union argues that the Arbitrator's reference to various agreement provisions in interpreting the meaning of the work jurisdiction clause did not constitute a resolution of an issue not before him or a disregard of limitations on his authority. The Union also argues that the Arbitrator included the word "analog" in his order. Further, contrary to the Agency's assertion, the Union points out that the award does not give unit employees exclusive jurisdiction over all Studio 47 work.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Union), 51 FLRA 1371, 1378 (1996). "The Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement." Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518-19 (1986) (citation omitted).
The issue as stipulated to the Arbitrator was broadly worded to include the "application of the inter- [ v55 p199 ] est arbitrator's award" regarding the assignment of work in Studios 2 and 47 and in Walk-in and LAP Studios. Award at 3. The Arbitrator resolved that issue. Nothing in the record supports the Agency claim that the Arbitrator deviated from this issue by attempting to resolve problems that may arise after the contract terminates. Further, the wording of the Arbitrator's award, when read in its entirety, clearly shows that it was directed to the operation of "analog" equipment. In this connection, the Arbitrator stated that the Agency violated the work jurisdiction clause of the agreement "by its action of assigning the operation of analog radio audio broadcast equipment in Studio 47 to non-[u]nit [e]mployees, and a cease and desist directive about this violation will be issued." Id. at 11 (emphasis added).
Similarly, there is no support for the Agency's claim that the Arbitrator's award provides the RBTs with jurisdiction over radio/TV simulcast broadcasts in Studio 47 that were never performed by them at the time of the interest arbitration award. Specifically, in addressing the application of the work jurisdiction clause to assignments in Studio 47, the Arbitrator explained that the clause "evidences a clear intent to vest in the RBTs . . . the exclusive right to perform work . . . that the RBTs were performing on the effective date of the work jurisdiction clause." Id. at 9. Consequently, the Arbitrator's award is limited to work that was performed at the time of the interest arbitration award. Id.
In sum, we conclude that this exception provides no basis for finding the award deficient.
IV. The Award Does Not Fail to Draw Its Essence From the Agreement
A. Positions of the Parties
The Agency contends the award fails to draw its essence from the agreement because the award does not impose a "place limitation" as provided in the contract, that is -- "core studios (studios 1-19)" -- for the grant of exclusive work jurisdiction. Exceptions at 8-10.
The Union argues that the Arbitrator appropriately interpreted the interest arbitrator's award to mean that, to the extent unit employees were performing the work at the time of the interest arbitration, they should continue to do such work.
B. Analysis and Conclusions
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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. See 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) (OSHA). Following the Supreme Court in United Paperworkers International v. Misco, Inc., 484 U.S. 29 (1987), the Authority has held that an award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. See Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, AFL-CIO, 54 FLRA 1365, 1370 (1998), citing OSHA, 34 FLRA at 576. The question of the interpretation of the parties' agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. Id.
Here, the Arbitrator determined that the work jurisdiction clause could not "logically be construed as limiting the work covered by the clause to the physical confines of the named studios." Award at 11. The Agency disagrees with the Arbitrator's interpretation, arguing that the clause should be interpreted as imposing a limitation on particular studios, as intended by the interest arbitrator.
We find that the Agency has failed to show that the award is deficient as failing to draw its essence from the agreement. In reaching his result, the Arbitrator examined the interest arbitrator's decision, which focused on the work that RBT's were performing, rather than the location at which that work was being performed. The Arbitrator's conclusion that the work jurisdiction clause was not limited to the named studios is not implausible, irrational, or unconnected to the agreement's wording.
V. The Award Is Not Based on Non-facts
A. Positions of the Parties
The Agency argues that the award is deficient because it is based on non-facts. Exceptions at 14-17. First, the Agency argues that the award is based on the "non-fact" that the Agency discontinued walk-in studios. Second, the Agency claims that the award is based [ v55 p200 ] on the "non-fact" that bargaining unit work previously performed by unit employees in walk-in studios is now being performed in LAP studios by non-unit employees. Id. at 15.
The Union argues that the award's reference to the announced closing of walk-in operations and to the assignment of work in LAP studios to non-unit employees are not "central facts" underlying the award.
B. Analysis and Conclusions
To establish that an award is based on non-facts, the appealing party must demonstrate that the central facts underlying the award are 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). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Further, an appealing party may not challenge the arbitrator's interpretation and application of a collective bargaining agreement as a non-fact. See National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210 (1996); and National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995).
The Arbitrator found that the Agency had failed to prove that walk-in work did not exist. Award at 12. The Arbitrator also concluded that work formerly done by unit employees on a walk-in basis in Studios 1-5, 18 and 19 was now being performed in LAP studios. Id. at 11. The Agency disputes both these factual determinations. However, the record establishes that these matters were disputed before the Arbitrator. In particular, the Arbitrator cited and discussed the Agency's contention as to whether walk-in recording work ceased to exist and whether any work previously done by RBTs in walk-in studios was being done by non-unit employees in LAP studios. Since the Arbitrator made specific factual findings based on matters that the Agency disputed before him, and consistent with the standard above, there is no basis upon which to find the award deficient. Consequently, we conclude the Agency has failed to establish the award must be set aside because it is based on non-facts.
VI. The Award Is Not Ambiguous, Contradictory, or Impossible to Implement
A. Positions of the Parties
The Agency argues that the award is impossible to implement because it establishes two different "target dates" for determining RBTs' entitlement to work performed in walk-in operations. Exceptions at 17. The Agency also maintains that the Arbitrator's suggestion of a "monitoring system" to determine whether any walk-in work exists and, if so, where is ambiguous or contradictory. Id.
The Union asserts the Agency has failed to prove that the award is impossible to implement.
B. Analysis and Conclusions
In order for an award to be found deficient on the basis that it is incomplete, ambiguous, or contradictory so as to make implementation impossible, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs, Medical Center, Northport, New York, 51 FLRA 444, 448 (1995), citing, Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 66 (1981).
Evaluating the Agency's arguments in light of this narrow standard, the Agency has not established that the Arbitrator's award is impossible to implement. A reading of the award, as a whole, supports the conclusion that the Arbitrator intended that, to the extent unit employees were performing walk-in studio work that involved the "operation of analog radio audio broadcast equipment" performed in 1989, and such work still remained to be done, unit employees should do the work. Award at 9, 11-12. Nothing in this finding makes it impossible to implement the Arbitrator's further conclusion that LAP personnel were entitled to perform work they were performing when the work jurisdiction clause became effective in 1995.
Similarly, the language of the award that the Agency claims provides for a "monitoring system" is not too unclear or uncertain so as to make implementation impossible. The Arbitrator gave the Agency wide discretion to implement the award either on its own or jointly with the Union. The Agency has not shown that it is incapable of doing so.
Accordingly, we find that the Agency has failed to establish that the award is ambiguous, contradictory, or impossible to implement.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 36
Footnote # 2 for 55 FLRA No. 36
The interest arbitration award, issued May 8, 1995, resulted from the parties' joint request for assistance from the Federal Service Impasses Panel. According to the Arbitrator in the instant grievance arbitration proceeding, the interest arbitrator adopted the work jurisdiction clause advanced by the Agency.
Footnote # 3 for 55 FLRA No. 36