[ v63 p59 ]
63 FLRA No. 21
DEPARTMENT OF THE AIR FORCE
TINKER AIR FORCE BASE
OKLAHOMA CITY, OKLAHOMA
OF GOVERNMENT EMPLOYEES
December 23, 2008
Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator E. Gayle Sheridan 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.
The Arbitrator concluded that the Agency violated Article 13 of the Local Supplemental Agreement when it denied the grievant the opportunity to volunteer for the evening shift and earn differential pay. As a remedy, the Arbitrator awarded backpay.
II. Background and Arbitrator's Award
The Union filed a grievance claiming that the Agency violated Article 13 of the Local Supplemental Agreement (LSA) [n1] when it established a swing shift on one engine line with volunteers from the swing shift of a second engine line rather than creating a volunteer roster of employees on the day shift of the first engine line. The grievant, a day shift employee on the first engine line, alleged that, as a result of this violation, he was unable to volunteer for the swing shift and earn differential pay. The grievance was unresolved and was submitted to arbitration.
The Arbitrator framed the issues as:
Did the Agency violate any law, rule, regulation or provision of the Master Labor Agreement or Local Supplemental when the [g]rievant was denied the opportunity to volunteer for assignment to the 15:30 to 24:00 shift on the dates in question between March 29 and May 27, 2005? If so, what should be the remedy?
Award at 3.
The Arbitrator rejected the Agency's reliance on Article 21 of the Master Labor Agreement (MLA). [n2] He found that Article 21 concerned "the assignment of a single employee, not an entire swing shift" and that there was no evidence that the Agency "established rosters available to the Union" as required by Article 21, § 21.05(b). Id. at 9. The Arbitrator concluded that the Agency violated Article 13 when it failed to maintain shift rotation rosters for each shift and review such rosters when staffing swing shifts. See id. at 11. Finally, addressing the requirements of the Back Pay Act, [ v63 p60 ] 5 U.S.C § 5596, the Arbitrator concluded that "if this had not occurred the [g]rievant would not have lost pay, i.e. shift differential." Id. at 10. The Arbitrator awarded backpay for the time the grievant would have worked.
III. Positions of the Parties
A. Agency's Exceptions
The Agency first argues that the Arbitrator's award is "unfounded in reason and fact to the point that it fails to draw its essence from these agreements." Exceptions at 6. The Agency maintains that this case involves a temporary loan of employees under Article 21 of the MLA and not the establishment of a swing shift under Article 13 of the LSA. Id. at 7. Second, the Agency claims that the Arbitrator's reasoning that Article 21 did not apply was based on the nonfact that "management did not `establish rosters available to the Union.'" Id. at 7 (quoting Award at 9).
Finally, the Agency claims that the award violates the Back Pay Act because the Arbitrator did not find a causal connection between the contract violation and the grievant's alleged loss of pay. See Id. at 5. The Agency claims that, even if rosters had been used, there was no indication that the grievant had the seniority to be, or would have been, selected for the swing shift. See Id.
B. Union's Opposition
Regarding the Agency's essence claim, the Union asserts that the Agency has not demonstrated that the award is deficient. The Union also asserts that the alleged nonfact is not a central fact, but for which a different result would have been reached. Finally, the Union argues that the award meets the requirements of the Back Pay Act because the Arbitrator found the required causal connection between the contract violation and the grievant's loss of pay. The Union further states that the award was based on the Arbitrator's interpretation of the parties' agreements and on his reconstruction of what would "have occurred but for the Agency's violation of the contract." Opposition at 5.
IV. Analysis and Conclusions
A. The award does not fail to draw its essence from the parties' agreements.
The Authority will find that an award fails to draw its essence from an 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 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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Here, the Arbitrator rejected the Agency's claim that its action should be considered a loan of employees under Article 21 and concluded that the Agency violated Article 13 when it failed to create a roster on the day shift when staffing the swing shift. The Arbitrator's conclusion was based on his determination of which provision of the parties' agreement was applicable. The question of the interpretation of the collective bargaining agreement is a question for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. OSHA, 34 FLRA at 576. Moreover, the Agency's exception does not establish that the Arbitrator's interpretation and application of Article 13 is unfounded in reason and fact, does not represent a plausible interpretation of the agreement, cannot be derived from the agreement, or evidences a manifest disregard of the agreement. See, e.g., AFGE, Local 3979 Council of Prisons Locals, 61 FLRA 810, 815 (2006).
Based on the foregoing, we find that the award does not fail to draw its essence from the parties' agreements and deny the Agency's exception.
B. The award is not 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). Moreover, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. See United States Dep't of Health and Human Serv., Denver, Co., 56 FLRA 133, 135 (2000) (Health and Human Services).
The Agency claims that the Arbitrator's finding that Article 21 was inapplicable is based on the nonfact that the Agency "did not establish rosters available to the Union." Exceptions at 7. The Agency notes, in this regard, that the Arbitrator specifically stated that the Agency "did use a loan roster." Id. Contrary to the Agency's claim, however, the Arbitrator concluded that Article 21 did not apply not only because rosters were not available, but also because Article 21 concerned "the assignment of a single employee, not an entire swing shift[.]" Award at 9. As such, the Agency has not established that the availability of rosters was a central [ v63 p61 ] fact, but for which a different result would have been reached. See NFFE, Local 1984, 56 FLRA at 41.
Based on the foregoing, we find that the award is not based on a nonfact and deny the Agency's exception.
C. The award does not violate the Back Pay Act.
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 Defense, Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998) (Army). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
An award of backpay is authorized under the Back Pay Act only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or the reduction of an employee's pay, allowances, or differentials. See Unites States Dep't of Health & Human Servs., 54 FLRA 1210, 1218-19 (1998) (HHS).
With regard to the first requirement, a violation of the parties' agreement constitutes an unjustified and unwarranted personnel action. See Gen. Serv. Admin., 55 FLRA 493, 496 (1999). The Arbitrator's finding that the Agency violated Article 13 of the LSA satisfies the first requirement of the Back Pay Act. With regard to the second requirement, an arbitrator must find that the unwarranted and unjustified personnel action resulted in a loss of pay, allowance or differential. See HHS, 54 FLRA at 1218-19. In this case, the Arbitrator expressly found that the Agency violated Article 13 of the LSA and that this violation resulted in the grievant's loss of shift differential pay. See Award at 10. This finding satisfies the second requirement of the Back Pay Act. The Agency's assertion that the award does not establish a causal connection is in essence, a challenge to the Arbitrator's factual findings, to which we defer in the absence of a demonstration that these findings are nonfacts. See Army, 55 FLRA at 40. As to these findings, no such claim or demonstration has been made here. Consequently, the Agency's assertion that the award does not establish a causal connection is without merit.
Based on the foregoing, we find that the award is not inconsistent with the Back Pay Act and deny the Agency's exception.
The Agency's exceptions are denied.
Footnote # 1 for 63 FLRA No. 21 - Authority's Decision
Section A, Purpose: This Article establishes procedures for establishing, terminating, or rotating bargaining unit personnel on swing (evening) and grave (night) shifts.
. . . .
Section C. Supervisors will maintain a shift rotation roster for each shift separate from other rosters. Employees will be listed on the roster by series and grade in descending SCD order. Nature of individual shift assignment will be noted on the roster as V for volunteer or M for mandatory (compulsory).
. . . .
Section E. Shift assignment shall normally be for 12 weeks as follows:
1) Personnel on day shift will be given the opportunity to volunteer for vacant positions on swing or grave shifts in descending seniority order. In the event there are insufficient volunteers, persons from swing and graveyard shift may volunteer for the vacancy.
Exceptions, Attach. 4 at 14.
Footnote # 2 for 63 FLRA No. 21 - Authority's Decision
Section 21.01: Definition
A loan is the assignment of an employee to another supervisor or organization to meet temporary or limited emergency work situations where the position has the same grade, series, and basic duties as his/her regularly assigned position.
. . . .
Section 21.05: Loan Selection Process
. . . .
b. The Employer shall establish rosters available to the Union to implement the requirements of this section of this Article.
Exceptions, Attach. 3 at 66-67.