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62 FLRA No. 71
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
WOMEN'S RIGHTS NATIONAL
HISTORICAL PARK, NORTHEAST REGION
SENECA FALLS, NEW YORK
OF GOVERNMENT EMPLOYEES
March 31, 2008
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph A. Gentile 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
This matter concerns a grievance stemming from the Agency's decision to reprimand a park ranger, the grievant, for failing to follow instructions and for lack of candor when she cancelled the day's scheduled tour. Specifically, on November 5, 2004, the grievant determined there was insufficient staff to conduct a scheduled tour that date. In making this determination, the grievant reviewed management's roster, which did not identify who was assigned to guide the tour. After some discussion with the attending staff, the grievant learned that one ranger was scheduled for annual leave for part of the day and another ranger had a special assignment. In addition, the grievant was unable to conduct the tour because she was coming down with a cold. Accordingly, the grievant attempted to have another ranger volunteer to guide the tour, but when that ranger declined, the grievant concluded that a shortage of staff personnel was evident and decided to cancel the tour. Later that day, the grievant's supervisor, the Superintendent, after learning that the grievant had cancelled the tour, countermanded the grievant's decision. Moreover, the Agency issued the grievant a letter of reprimand for a failure to follow instructions and for a lack of candor when she was later questioned about cancellation of the scheduled morning tour. The grievant filed a grievance over the reprimand and subsequently the Union submitted it to arbitration.
At arbitration, the Arbitrator framed the issue as follows:
Did the Agency have just cause in the issuance of a letter of reprimand to the grievant on November 29th, 2004? If not, what shall the remedy be.
Award at 1.
B. Arbitrator's Award
In his award, the Arbitrator noted the Agency's claim that the grievant lacked the authority to unilaterally cancel a scheduled tour without consulting with management, and that the grievant's subsequent responses as to what transpired the morning in question lacked candor. The Arbitrator also noted the Union's contention that the grievant functioned within the guidelines of the Standard Operating Procedure (SOP) and consistent with established past practice.
In resolving the Agency's lack of candor charge, the Arbitrator determined that this allegation was based primarily on the testimony of one ranger. The Arbitrator indicated that at the hearing the ranger testified she had difficulty in recalling the events and was confused. Accordingly, the Arbitrator determined that it was "difficult to give credence" to the statements about the grievant's candor and stated "[o]ne must consider such testimony merely, as a proverbial wash." Award at 9. As such, the Arbitrator found no just cause for charging the grievant with lack of candor.
In resolving the Agency's remaining contention, that the grievant failed to follow instructions when she unilaterally cancelled a scheduled tour, the Arbitrator determined that the process for canceling a scheduled tour "is in dispute." Id. However, after reviewing the following language in the SOP, "[t]he highest ranking [r]anger has the authority to cancel programs as necessary [ v62 p379 ] due to staffing shortages[,]" (Agency Exhibit 3) the Arbitrator determined that the language is "clear and unambiguous in its intent." Award at 9. Moreover, the Arbitrator found that under the SOP, the highest ranking ranger has the authority to cancel programs as necessary due to staffing shortages.
As applied to the facts here, the Arbitrator concluded that only three rangers were available on the morning in question and that the grievant was the highest ranking ranger on duty. Id. at 7. Of those three, one had leave scheduled and another had a special assignment. In addition, the grievant had a cold and did not believe she was able to lead a tour. The Arbitrator also confirmed that the roster for that morning lacked clarity regarding tour assignments. Based on these facts, the Arbitrator determined that the Agency did not have just cause to issue a letter of reprimand to the grievant for either failure to follow instructions or lack of candor.
III. Preliminary Matter
The Union submits a motion to strike part of the Agency's exceptions. Specifically, the Union argues that the Agency failed to argue before the Arbitrator that the Superintendent, not the grievant, was the highest ranking ranger on duty for the time pertinent to this case.
Under § 2429.5 of the Authority's Regulations, the Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the arbitrator. The Agency's brief does not establish that its contention that the Superintendent was the highest ranking ranger on duty was presented to the Arbitrator at the hearing. Additionally, a review of the Agency's closing brief submitted to the Arbitrator and the Arbitrator's award reveals no reference to the Superintendent as the highest ranking ranger on duty. Accordingly, as the record fails to show that this contention was presented to the Arbitrator, we will not consider this contention in our analysis. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003).
IV. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is premised on an "omission of facts." Exceptions at 1-2. In addition to the contention that the Superintendent was the highest ranking ranger discussed above, the Agency contends there was no staffing shortage on November 5th. Additionally, the Agency argues that the Arbitrator overlooked a portion of the SOP that requires the highest ranking ranger to, "[a]t the beginning of the day, consult with the Chief of Interpretation, Superintendent, or Historian to arrange coverage or assistance." Exceptions at 2. According to the Agency, although the Chief of Interpretation was on approved leave, the Superintendent and the Historian were on duty.
Next, the Agency contends that the award "disregards" management's rights under § 7106(b)(1) and (2) of the Statute to determine the numbers, types and grades of employees assigned to a tour of duty, the technology, methods and means of performing work, and the procedures which management will observe in exercising its authority. Id. at 2-3. In particular, the Agency argues that by failing to consult with management about the perceived staffing shortage, and subsequently by canceling the scheduled tour, the grievant precluded management from exercising its rights under § 7106(b)(1) and (2) of the Statute. Accordingly, the Agency asserts that the Arbitrator's award has the affect of disregarding management's rights, and is thus contrary to the Statute as the award does not allow the Agency the authority to properly manage the park.
Moreover, the Agency contends that the award fails to draw its essence from the parties' agreement and would permit repeated violations of Article 5, Section 2(a), (b), (c) and (f). According to the Agency, this provision provides:
SECTION 2. The Union agrees to cooperate with management in order to promote the highest degree of efficiency and effectiveness of agency operations as well as employee performance and productivity. This includes but is not limited to the following: (a) improve office relations with the public; (b) encourage high quality work performance; (c) reduce absenteeism, tardiness, carelessness and other practices that hamper efficiency; ... (f) abide by official policies, regulations, and the provisions of this agreement[.]
Exceptions at 3. Finally, the Agency requests that, "[b]ased on the deficiencies as outlined above", the award be vacated. Id.
B. Union's Opposition
The Union refutes the Agency's contention that the Arbitrator failed to consider the SOP. According to the Union, the disputed SOP language concerning discussion with management prior to cancelling tours requires the highest ranking ranger to discuss such situations only where there is an emergency, not a staffing shortage. [ v62 p380 ] Opposition at 4. According to the Union, the grievant did not consider the situation that morning to constitute an emergency, but rather a work schedule problem. The Union also contends that the Superintendent had never performed backup ranger duties, and the Historian had reviewed and approved the schedule. Accordingly, the Union asserts the grievant made a judgment call which was permissible under the SOP when she cancelled the scheduled tour that morning. See Opposition at 4.
Next, the Union asserts that the Agency's contention that the Arbitrator completely disregarded § 7106(b)(1) and (2) is "patently untrue." Id. The Union contends that it has consistently argued that the grievant considered herself the highest ranking ranger on duty on the morning in question, and that no other staff on duty was identified at the hearing as a ranger with a higher grade than the grievant. The Union also asserts that the Agency has failed to show that the award is contrary to any law.
Finally, the Union asserts that the Agency's essence exception is moot, as the parties have replaced the agreement provision set forth above with a new agreement. Accordingly, the Union argues that because the previous agreement is no longer in effect, it would be impossible for future violations to occur.
V. Analysis and Conclusions
A. The Agency's Exception Fails to Establish that the Award Is Based on a Nonfact
The Agency initially contends that the award is premised on an "omission of facts." We construe the Agency's assertion as a claim that the award is based on a nonfact. To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. In this regard, the Authority has long held that disagreement with an arbitrator's evaluation of evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding the award deficient. See AFGE, Local 3295, 51 FLRA 27, 32 (1995).
Here, the Agency contends that the Arbitrator overlooked a portion of the SOP that requires the highest ranking ranger to, "[a]t the beginning of the day, consult with the Chief of Interpretation, Superintendent, or Historian to arrange coverage or assistance." Exceptions at 2. The Agency argues that but for the Arbitrator's failure to include this part of the SOP in his analysis, he would have found that the grievant failed to follow the SOP and that the discipline of the grievant was warranted. The Union asserts, however, that the Arbitrator correctly applied the SOP which authorizes the highest ranking ranger to cancel tours. The Arbitrator found that the grievant was the highest ranking ranger on duty, and that the grievant was authorized to cancel the tour. See Award at 7, 9-10.
We find that the process the grievant was to abide by under the terms of the SOP was a matter that was presented and disputed before the Arbitrator at the hearing. Moreover, insofar as the Agency's exception contests the finding that the grievant was the highest ranking ranger on duty, that matter was also disputed below. Thus, the Agency has not identified a particular fact that was clearly erroneous, but for which the Arbitrator would have reached a different conclusion.
As noted above, the Authority will not find an award deficient on nonfact grounds with regard to any factual matter that was disputed at arbitration. See, e.g., NFFE, Local 1442, 59 FLRA 849, 852 (2004) (Chairman Cabaniss concurring). Consequently, the Agency's exception provides no basis for finding the award deficient.
B. The Award Is Not Contrary to Law or Regulation
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Agency asserts that the award disregards "management's rights" under § 7106(b)(1) and (2) of the Statute to determine the numbers, types and grades of employees assigned to a tour of duty, and the technology, methods and means of performing work, and the procedures which management will observe in exercising its authority. See Exceptions at 2-3. The Agency also contends that by canceling the scheduled tour the grievant deprived the Agency of the ability to exercise [ v62 p381 ] its management rights in that situation. Finally, the Agency asserts that, pursuant to the SOP, the grievant was required to consult with the Chief of Interpretation, Superintendent, or Historian to arrange coverage or assistance.
The Agency argues that the award violates § 7106(b)(1) and (2) of the Statute. However, the Agency has not demonstrated, or even asserted, how the award is contrary to either of these statutory provisions. In this respect, the Agency has not shown how the Arbitrator's determination that the grievant could cancel a tour under the SOP affects the Agency's ability to exercise its right to determine its numbers, types and grades of employees assigned to a tour of duty, and/or the technology, methods and means of performing work of employees assigned to a tour of duty. The Agency also has not shown how the award implicates § 7106(b)(2). Therefore, as the Agency fails to argue with any specificity how the award violates § 7106(b)(1) or (b)(2), we deny this exception as a bare assertion. See, e.g., Soc. Sec. Admin., Baltimore, Md., 57 FLRA 181, 183 n.3 (2001); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000).
In addition, the Agency argues that the grievant was required to follow its SOP and consult with management about the perceived staffing shortage prior to canceling the scheduled tour. However, after reviewing the testimony and record evidence, the Arbitrator made a factual finding, to which we defer, that the grievant was the highest ranking Ranger on duty. See Award at 7, 9-10. In these circumstances, the Agency has not demonstrated that the award is contrary to the Agency's SOP. Consequently, the Agency's exception provides no basis for finding the award deficient.
C. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) 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; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Agency states that the award fails to draw its essence from Article 5, Section 2 of the parties' agreement but provides no explanation of, or support for, that statement. Accordingly, as this claim amounts to nothing more than a bare assertion, the claim provides no basis for finding the award deficient and we deny the exception. See, e.g., AFGE, Local 1858, 59 FLRA 713, 715 (2004).
The Agency's exceptions are denied.