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59 FLRA No. 150
DEPARTMENT OF THE AIR FORCE,
DOVER AIR FORCE BASE, DELAWARE
OF GOVERNMENT EMPLOYEES,
April 12, 2004
Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James W. Mastriani filed by the Agency under § 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.
For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is an aircraft mechanic and Union steward. During the rating period from April 4, 2001 to March 31, 2002 the grievant received a rating of "acceptable," rather than an "unacceptable," on his overall appraisal. Award at 13. However, the grievant also received a numerical rating on a scale from 1-9 on a number of specific attributes, such as work effort, problem solving, skill in work, etc. Id. at 15 (citing Appraisal Part F, Civilian Promotion Appraisal, AF Form 860(A)). Based on these ratings, which the grievant thought low, he filed an informal grievance with the Agency in April and met with his supervisor over this grievance in May. Id. at 16-17. As a result of that meeting, the supervisor denied the grievance and noted that since each of the benchmark ratings in part F were rated as "slightly above fully successful or higher, there is no requirement for documentation to support those ratings." Id. at 17.
Later in the month, and as a result of this meeting, the Union hand delivered a request for an extension to file a formal grievance over this determination. Id. However, the Agency official authorized to grant an extension (the Major) testified that she never received it. Id. at 18. The extension was followed by the grievant filing a formal step 1 grievance again arguing that the numbers on part F did not fairly represent the grievant's performance. Id. at 18-19.
In June the Major denied the formal grievance and noted that the grievant was not entitled to an award because the appraisal was accurate. Id. at 20. In August the Union filed a step 2 grievance, but was again denied by a higher ranking Agency official (the Colonel). Id. at 21-22.
Upon submission of this matter to the Arbitrator, the Arbitrator framed the issues as follows:
1. Is the grievance procedurally arbitrable?
2. If so, was the Grievant's performance evaluation for the period beginning April 4, 2001 to March 31, 2002 fair and valid? If not, what shall the remedy be?
Id. at 4.
With respect to the first issue, the Arbitrator determined that the grievance was procedurally arbitrable. Id. at 38. In reaching this conclusion, the Arbitrator found that the Agency had failed to show that the Union had not requested an extension of time and found that the timeliness issue was not raised in either of the written denials for the step 1 or 2 formal grievances. Id.
Turning to the remaining issue, the Arbitrator determined that the Agency was responsible for conducting quarterly feedback sessions but failed to do so on a regular basis. Id. at 27. However, the Arbitrator found that this violation of the parties' agreement was merely "technical" and that even if the grievant had received such feedback his performance would not have improved beyond that which was reflected in form 860 of his performance appraisal. [n1] Id. at 41. Accordingly, the Arbitrator dismissed the grievance.
In conclusion, the Arbitrator determined that "[i]n this specific case, I conclude that the costs of this arbitration be borne equally by the parties based upon the Award not granting the merits of the Agency's arbitrability defense and not granting the grievance on its merits." Id. at 44. In reaching this conclusion the Arbitrator [ v59 p828 ] relied upon Article 23, Section 7 of the parties' agreement, which states that the "party that was not granted the award" is responsible for those costs. [n2] Id. (citing Article 23, Section 7 of the parties' agreement).
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the Arbitrator's determination that the grievance was procedurally arbitrable is a "threshold ruling" rather than an award. Exceptions at 3. It cites to Dep't of the Army, Oakland Army Base, 16 FLRA 829 (1984), for the proposition that the Authority has specifically distinguished between what constitutes a "threshold ruling", such as an issue involving procedural arbitrability, and what constitutes an award. Exceptions at 3 (citing United States Dep't of the Treasury, IRS, L.A. Dist., 34 FLRA 1161 (1990)). As such, it contends that the Arbitrator's decision to split the fee under Article 23, Section 7, is contrary to law given that it only lost on the threshold issue of arbitrability while it prevailed with respect to the award on the merits. Exceptions at 5.
Next, the Agency contends that the Arbitrator's award fails to draw its essence from the parties' agreement. It states:
While a "split fees" or "50-50" clause may be favored by arbitrators, an arbitrator must adhere to the parties' CBA not their personal preference or what they are most comfortable with. Article 23, Section 3 of the parties' CBA states that "An arbitrator shall not change, modify, alter, delete or add to the provisions of this agreement; such right is the prerogative of the contracting parties only."  Section 7 of that Article covers the way that the arbitrator's fees and expenses must be allocated. The arbitrator has no discretion with respect to fees allocation under the Dover CBA or in this case.
Id. at 5-6.
Additionally, it notes that the parties did not agree prior to the hearing to "bifurcate the process into two equal billable issues" or to amend Article 23, Section 7. Id. at 2. As such, it argues that since it won on the merits, the Arbitrator's decision to split the fees does not draw its essence from the parties' agreement. Id. at 2, 3.
B. Union's Opposition
The Union argues that to the extent the Agency relies on contract language from Authority decisions in other arbitration cases, "these FLRA rulings are neither precedent setting nor binding on our CBA language or intent." Opposition at 1.
Additionally, the Union argues that the Arbitrator properly framed the two issues in dispute and was free to make "two separate decisions[.]" Id. at 2. As such, it contends that the Arbitrator made two separate awards, noting that the first award stems from the Arbitrator's decision to find this matter non-arbitrable. Id. at 1, 2. Accordingly, it contends that the Agency's argument amounts to nothing more than "mere disagreement with the Arbitrator's interpretation and application of the agreement." Id. (quoting United States Dep't of Labor (OSHA), 34 FLRA 573, 576 (1990) (OSHA)).
IV. Analysis and Conclusions
A. The Award is Not Contrary to Law
The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Here, the Agency argues that the Arbitrator was legally obligated to find that the award was granted to the Agency and that, accordingly, the Union should bear all of the Arbitrator's fees and expenses. See Article 23, Section 7. For the following reasons we disagree.
With respect to the Agency's arguments, we note that the cases cited by the Agency deal with an arbitrator's final "award" for the purpose of filing exceptions under § 7122(a) of the Statute. In this respect, the Authority has made a distinction between exceptions that are interlocutory in nature, and thus fall under 5 C.F.R. § 2429.11 which ordinarily prohibits review of [ v59 p829 ] interlocutory exceptions, and those that are based on final awards and face no such limitations.
The Agency's argument is misplaced because there is no issue in this case whether the Arbitrator issued a final "award," within the meaning of section 7122(a) of the Statute, for purposes of Authority review. Instead, the issue is whether the Arbitrator's ruling that the grievance was arbitrable is an "award," within the meaning of Article 23, Section 7 of the parties' agreement, for purposes of determining responsibility for fees and expenses. 2The Agency has not established that there is a law, rule or regulation requiring that Article 23, Section 7 be interpreted in any particular way. Accordingly, the Agency has not established that the Arbitrator's interpretation of the provision is contrary to law.
B. The Award Does Not Fail to Draw its Essence From The Parties' Agreement
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Statute provides that the Authority apply the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See OSHA, 34 FLRA at 575. The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
Here, the Agency argues that the Arbitrator had no discretion in splitting fees and costs associated with his award. It contends that the Arbitrator's decision to the contrary fails to draw its essence from the parties' collective bargaining agreement. For the following reasons, we disagree with the Agency's assertions.
The Arbitrator split his fees "based upon the [a]ward not granting the merits of the Agency's arbitrability defense and not granting the grievance on its merits." Award at 44. Although the parties' agreement provides that the party "not granted the award" will pay the arbitrator's entire fee, the agreement is silent as to situations where each party wins an issue before the Arbitrator. As such, the Arbitrator's determination to split the fees does not fail to draw its essence from the agreement. [n3]
The Agency's exceptions are denied.
Footnote # 1 for 59 FLRA No. 150 - Authority's Decision
In addition, the Arbitrator also rejected two other arguments set forth by the Union in an attempt to invalidate the appraisal. Specifically, the Arbitrator determined that the grievant was aware of who his supervisor was for the purpose of writing his performance appraisal and that another technical violation of the parties' agreement, i.e., the Agency's failure to record the grievant's performance feedback for 2001 on the proper form, was harmless error. Id. at 42.
Footnote # 2 for 59 FLRA No. 150 - Authority's Decision
Footnote # 3 for 59 FLRA No. 150 - Authority's Decision
The Agency also argues that the Arbitrator exceeded his authority by splitting the fees even though Article 23, Section 3, prohibits an arbitrator from changing or modifying the terms of the parties' contract. Exceptions at 7. However, this assertion is based solely on the Agency's contention that the Arbitrator had no discretion under Article 23, Section 7, to split fees even where each party wins an issue before arbitration. Therefore, as the Authority has determined that the Arbitrator has the discretion to split fees in this case under Article 23, Section 7, the Arbitrator did not exceed his authority under the parties' collective bargaining agreement by modifying or changing the parties' agreement.