[ v42 p674 ]
42:0674(44)AR
The decision of the Authority follows:
42 FLRA No. 44
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award on remand of Arbitrator James F. Doherty filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the exception.
In his original award,(1) the Arbitrator denied a grievance claiming that the grievant was improperly denied a monetary performance award. The Union filed exceptions to the Arbitrator's award, and we concluded that we were unable to determine whether the award was deficient. Accordingly, in 37 FLRA 1066, we remanded the case to the parties for resubmission to the Arbitrator.
In his award on remand, the Arbitrator found that the parties had agreed to an Agency regulation precluding grievances over a failure to grant monetary performance awards. Accordingly, the Arbitrator reaffirmed his original denial of the grievance.
For the following reasons, we conclude that the Union fails to establish that the award is deficient and we will deny the exception.
II. Background and Initial Award
The dispute in this case arose when the Agency failed to recommend the grievant for a cash award based on his performance rating. A grievance was filed and, when the grievance was not resolved, it was submitted to arbitration on the issue of whether the Agency violated the parties' collective bargaining agreement by failing to recommend the grievant for an award.
On the "'threshold question as to whether the grievance [was] of the type covered under the [parties'] collective bargaining agreement[,]'" the Arbitrator concluded that the grievance was not covered by the agreement. 37 FLRA at 1067 (quoting from award; brackets in original). The Arbitrator noted that the parties' agreement provided that employee performance will be appraised in accordance with, among other things, Defense Mapping Agency Instruction (DMAINST) 1434.1. The Arbitrator also noted that DMAINST 1434.1 had been "'supplanted'" by Defense Mapping Agency Performance Systems Manual (DMAM) 1434.3, which provided, in pertinent part, that the Agency's failure "'to pay a performance award may not be appealed/grieved.'" Id. (quoting from award). Based on DMAM 1434.3, the Arbitrator denied the grievance.
III. The Decision in 37 FLRA 1066
The Union filed an exception to the initial award contending that the award was deficient because the Arbitrator improperly relied on DMAM 1434.3. The Union argued that DMAM 1434.3 did not bar the grievance because, among other things, the regulation had not been implemented.
In its opposition, the Agency argued that the parties agreed to incorporate DMAM 1434.3 in the collective bargaining agreement.
In 37 FLRA 1066, we noted that DMAM 1434.3 was issued after the effective date of the parties' agreement. We also noted that although section 7116(a)(7) of the Statute generally prevents agencies from enforcing a regulation that conflicts with a preexisting collective bargaining agreement, parties may agree to allow subsequently issued regulations to override such an agreement. As the Arbitrator had not expressly found that the parties agreed to allow DMAM 1434.3 to override the parties' agreement, we remanded the award to the parties "to request the Arbitrator to clarify his award to determine whether the parties had agreed that DMAM 1434.3 overrides their preexisting collective bargaining agreement and to resolve the grievance accordingly." 37 FLRA at 1070.
IV. Arbitrator's Award on Remand
In his award on remand, the Arbitrator referenced three joint exhibits introduced at the original arbitration hearing and noted that in Joint Exhibit 3 (the Union president's response to the Agency's announcement of the implementation date of DMAM 1434.3), the president stated that: "'the implementation of the [Performance Management System] shall be in accordance with Section 4 of Article IV of the negotiated agreement.'" Award at 3 (quoting from Joint Exhibit 3). The Arbitrator found that Article IV, section 4 of the agreement "deals with employee and Union rights and responsibilities and is not germane to the issue in this case." Id.
The Arbitrator concluded that "[t]he documents are clear. There was a negotiation on [DMAM] 1434.3 followed by an agreement which was expressly referenced to the negotiated agreement between the parties. Section 1434.3 precludes the grievance in this case." Id. Accordingly, the Arbitrator again denied the grievance.
V. Positions of the Parties
A. The Union
The Union argues that the Arbitrator "misinterpreted, modified and/or ignored" the parties' agreement and evidence presented at the arbitration hearing. Exception at 1. In particular, the Union disputes the Arbitrator's finding that Article IV, section 4 of the parties' agreement was not relevant to the grievance.(2) The Union contends that Article IV, section 4 is relevant because it addresses the parties' obligations "to negotiate the changes to personnel policies, practices and working conditions . . . ." Id. at 3. The Union also contends that, under Article IV, section 4, "there is no agreement . . . until intervention of the FMCS is unsuccessful and the issues are referred to the FSIP." Id. According to the Union, the Agency's position prior to the original arbitration hearing was that "none of DMAM 1434.3 had been implemented." Id.
B. The Agency
The Agency asserts that the exception should be dismissed because the Union failed to comply timely with an Authority order directing the Union to cure certain procedural defects in its exception. The Agency also asserts that the exception constitutes mere disagreement with the Arbitrator's award.
VI. Analysis and Conclusions
A. Preliminary Matter
As noted by the Agency, the Union failed to comply timely with an Authority order that the Union provide proof of service of the award on remand and certain other documents. It is undisputed, however, that the Union received the Order 2 days after the due date established in the Order and that the Union complied with the Order on the date it was received. In these circumstances, and noting that the Agency does not claim that it was prejudiced by the Union's failure to timely comply with the Order, we will consider the exception. See U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1175 (1990).
B. The Union Has Not Demonstrated That the Award Is Deficient
We reject the Union's assertion that the award on remand is deficient because the Arbitrator "misinterpreted, modified and/or ignored" the parties' collective bargaining agreement and the evidence offered at the arbitration hearing. Exception at 1.
The Arbitrator concluded, based on his evaluation of evidence offered at the original arbitration hearing and his interpretation and application of Article IV, section 4 of the parties' agreement, that "there was negotiation on [DMAM] 1434.3 followed by an agreement which was expressly referenced to the negotiated agreement between the parties." Award at 3. Insofar as the Union's exception disputes the Arbitrator's evaluation of the evidence offered at the hearing, the exception fails to demonstrate that the award is deficient. Instead, the exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his conclusions based thereon. See, for example, U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia and National Association of Government Employees, Local R4-106, 41 FLRA 246, 249 (1991).
Moreover, insofar as the Union's argument is construed as a contention that the award fails to draw its essence from the parties' agreement, it likewise fails to demonstrate that the award is deficient. To demonstrate that an award is deficient on this ground, it must be shown 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1048 (1991).
The Union has not demonstrated that the Arbitrator's award is deficient under any of these standards. The Arbitrator concluded, as relevant here, that Article IV, section 4 of the parties' agreement was not "germane" to the grievance. Award at 3. The Union has not shown that, in view of the Arbitrator's conclusion that the parties negotiated over and reached agreement on DMAM 1434.3, the Arbitrator's conclusions regarding Article IV, section 4, are irrational, implausible, or unconnected to the wording and purpose of the agreement. As such, the Union has not established that the award fails to draw its essence from the agreement.
As the Union's exception provides no basis for finding the award deficient, we will deny the exception.
VII. Decision
The Union's exception is denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Exceptions to the original award were docketed as Case No. 0-AR-1938.
2. Article IV of the parties' agreement contains two subsections, A and B. Subsection A addresses "Employee Rights and Responsibilities." Subsection B addresses "Union Rights and Responsibilities." Both subsections A and B contain a section 4. It is apparent from the Union's argument, that its reference to Article IV, section 4 is intended to encompass Article IV, subsection B, section 4, which provides, in pertinent part:
a. When [the Agency] contemplates changes to personnel policies, practices, and working conditions, it will consult with the Union in writing. Within two weeks of the consultation either party may require negotiation of the issue.
. . . .
d. Impasses arising out of such negotiations will be referred to the FMCS. If the intervention of the FMCS is unsuccessful, the impasse will be referred to the FSIP. At that point the [Agency] may implement its last best offer to the Union.
Attachment 6 to Exception.