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45 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R14-151

(Union)

and

U.S. DEPARTMENT OF THE ARMY

LONE STAR ARMY AMMUNITION PLANT

TEXARKANA, TEXAS

(Agency)

0-AR-2163

DECISION

June 4, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Harry L. Johnson 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 did not file an opposition to the Union's exception.

The issue before the Arbitrator concerned a grievance filed by the Union alleging Agency noncompliance with a provision of the parties' collective bargaining agreement that provides unit employees affected by a reduction in force (RIF) with priority reemployment rights to their former positions. The Arbitrator denied the grievance and the Union's motion for attorney fees.

For reasons discussed below, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The Agency was the subject of a reduction in force (RIF) action effective on October 13, 1990. As a result of the RIF, the Union filed a grievance alleging that the Agency violated Article XXI, Section 8 of the parties' agreement.1/ The Union contended that Article XXI, Section 8 requires the Agency to establish and maintain a separate reemployment priority list limited to bargaining unit employees separated from their positions. According to the Union, the parties' agreement provides bargaining unit employees with additional priority reemployment rights to their former positions beyond those provided under 5 C.F.R º 330.201 and by the Office of Personnel Management. In particular, the Union claimed that a certain unit member should have been placed into a specific vacant position instead of a former supervisor who was assigned to that position.

The Agency contended that it had acted properly in placing the former supervisor into the vacant position. The grievance was not resolved and was submitted to arbitration.

Before the Arbitrator, the Union contended that by its action the Agency had refused to comply with Article XXI, Section 8 of the parties' agreement. The Union contended that this case involves contract interpretation and that the contract was the only document needed to resolve the matter. The Union argued that 5 C.F.R. º 330.201 was inapplicable. The Union contended that the Article XXI, Section 8 requires the Agency to establish a separate and distinct reemployment priority list for bargaining unit employees affected by a RIF, and that when a vacancy occurs in a unit employee's former position that employee must be offered the position.

The Union argued that the parties negotiated the provision as an appropriate arrangement for employees adversely affected by a RIF. In support of its position, the Union relied on the Authority's decision in National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA 380 (1986) (KANG), in which the Authority found negotiable a proposal that required management to return employees noncompetitively to specific locations and positions lost because of a RIF when those positions later were vacated and filled. The Union contended that the language of Article XXI, Section 8 conforms with that decision and that the provision does not excessively interfere with management's rights. The Union also asserted that because the Agency head had approved the parties' agreement, the Agency had conceded that the provision was negotiable.

The Agency maintained that the issue presented by this grievance was addressed in a Merit Systems Protection Board (MSPB) appeal filed by the unit employee in question. Consequently, the Agency contended that the issue was not arbitrable under Article XXXI, Section 3 of the parties' agreement, which excludes matters appealable to the MSPB from the negotiated grievance procedure.

The Agency maintained that the placement of the former supervisor into the vacant position was in accord with the terms of the parties' agreement and with regulations governing RIFs. The Agency asserted that the unit employee had no right to the position in question and that the Union's interpretation of Article XXI, Section 8 would require management to act in direct contravention to 5 C.F.R. º 330.201, which requires that a single reemployment priority list be utilized for all persons separated by a RIF in a commuting area. The Agency also argued that the Union's interpretation of Article XXI, Section 8 would limit management to using a particular source for reemployment, which would be contrary to section 7106 of the Statute because it would unduly interfere with management's right to select individuals from any appropriate source. The Agency further contended that the Authority's decision in KANG was not applicable to the matter before the Arbitrator because KANG dealt with an issue of negotiability and not an alleged contract violation.

Although the parties were unable to agree on a joint submission of issues to the Arbitrator, the Arbitrator essentially addressed two issues. As a threshold matter, the Arbitrator concluded that as the Union brought the grievance, which concerned the interpretation of Article XXI, Section 8, in its own behalf, the grievance was arbitrable because the Union could not appeal the contract interpretation issue to the MSPB. With regard to the issue before him on the merits of the grievance, the Arbitrator concluded that the "primary purpose" of the grievance was whether the unit employee should have the job that was assigned to the former supervisor. Id. at 16.

The Arbitrator reviewed the parties' positions with regard to Article XXI, Section 8. The Arbitrator concluded that a comparison of that provision and the Authority's decision in KANG "gives great credence" to the Union's intent and the Union's explanation of how the provision originated. Id. at 13. However, the Arbitrator specifically rejected the Union's assertion that the Agency head approval of the agreement meant that the Union's interpretation of any section of that agreement was proper.

The Arbitrator then referred to the MSPB appeal filed by the unit employee. The Arbitrator found that the MSPB decision covered the RIF in question and the unit employee's treatment by management in that process. The Arbitrator noted that the MSPB concluded that: (1) the RIF regulations were properly invoked for a bona fide reason; (2) the unit employee was properly reached for release from her competitive level; (3) the RIF regulations were properly applied to the unit employee in effecting the RIF; and (4) the unit employee failed to prove her RIF was imposed in reprisal for her engagement in any protected activity.

The Arbitrator noted that the record of the MSPB hearing showed that the unit employee had "'suggested, without claiming a specific position, that she should have been given the same considerations'" in the RIF as the former supervisor who was placed in the vacant position at issue in this case. Id. at 17 (quoting MSPB decision). The Arbitrator noted that the MSPB's administrative judge specifically found "'no violation of [the unit employee]'s assignment rights under the RIF regulations, as it relates to the circumstances or the offer made to [the former supervisor] in this RIF.'" Id. at 18.

The Arbitrator concluded that there was no merit in the Union's position that the Agency failed to comply with Article XXI, Section 8 because it had not established a separate reemployment priority list of employees who had been separated from their former positions. The Arbitrator further concluded that the placement of the former supervisor in the vacant position was not a violation of Article XXI, Section 8 and that "the Union's interpretation of the provision [was] not acceptable." Id. at 19. Accordingly, the Arbitrator denied the grievance. The Arbitrator also denied the Union's motion for attorney fees.

III. Union's Exception

The Union states that the Arbitrator's award is deficient because it is contrary to law, rule and regulations. The Union contends that the Arbitrator's award is internally inconsistent and clearly erroneous. The Union argues that the Arbitrator cannot accept the Union's intent regarding Article XXI, Section 8 and deny the grievance unless the Arbitrator determines that the contract language is unlawful. The Union contends that the Arbitrator never found that Article XXI, Section 8 was unlawful, and asserts that the Authority's previous holdings establish that such a provision is an appropriate arrangement.

The Union further contends that the MSPB decision "is completely irrelevant to the issue that was before [the Arbitrator]." Exception at 6. The Union asserts that the Arbitrator apparently believed that the unit employee, in her MSPB appeal, was challenging the former supervisor's placement during the RIF, and that that issue was identical to the issue presented by the grievance. The Union maintains that the Arbitrator "mistakenly confuses" the issue that was before the MSPB with the issue that was before him. Id. The Union claims that the case before the Arbitrator involved the validity of Article XXI, Section 8 and the Agency's failure to create the reemployment list agreed to under that provision.

The Union also contends that the Arbitrator erred in failing to award attorney fees.

IV. Analysis and Conclusions

We conclude that the Union's exception provides no basis for finding the award deficient under section 7122 of the Statute.

The Arbitrator found that the "primary purpose" of the grievance was whether the unit employee should have been placed into the position assigned to the former supervisor. Award at 16. To address this issue, the Arbitrator examined the parties' positions at length and reviewed the MSPB decision addressing the RIF in question. The Arbitrator concluded that there was no merit to the Union's position that the Agency failed to comply with Article XXI, Section 8. Specifically, the Arbitrator concluded that the Union's interpretation of that provision was not acceptable. The Union challenges those conclusions, arguing that the Arbitrator's conclusions in denying the grievance were erroneous because the Arbitrator incorrectly relied upon, and was mistakenly confused by, the MSPB decision. The Union contends that the issue before the Arbitrator involved the validity of Article XXI, Section 8, and the Agency's failure to create the reemployment list agreed to under that provision.

We construe the Union's arguments as an assertion that the Arbitrator failed to resolve the issue presented to him. We reject the Union's assertion. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. See, American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 819 (1992) (Office of Hearings and Appeals).

In the absence of a stipulation of the issue by the parties, the Arbitrator viewed the issue before him narrowly and concluded that the Union's "primary purpose" in filing the grievance was to determine whether the unit employee should have been placed into the position that was assigned to the former supervisor. In our view, the Arbitrator's award fully resolved that issue. Consequently, the Union's arguments regarding an issue the Arbitrator did not address provide no basis for finding the award deficient. Further, we find, contrary to the Union's contention, that the Arbitrator appropriately used the MSPB decision to support his conclusion that the Agency did not violate the parties' agreement when it placed the former supervisor, instead of the unit employee, into the vacant position.

Finally, to the extent the Union is arguing that the Arbitrator's conclusion that the Agency did not violate the parties' agreement when it filled the vacant position does not draw its essence from that agreement, we find that the Union fails to establish that the award is deficient in this respect. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the interpretation of the agreement; or (4) does not represent a plausible interpretation of the agreement. Office of Hearings and Appeals, 44 FLRA at 813. In this case, after reviewing the parties' positions with regard to Article XXI, Section 8 of the agreement, the Arbitrator specifically rejected the Union's interpretation of that provision. Instead, relying on the MSPB decision, which found that the Agency had acted in conformity with the applicable regulations, the Arbitrator concluded that the Agency had not violated the agreement by placing the former supervisor in the vacant position. The Union has not shown that the Arbitrator's interpretation disregards the agreement or is irrational, implausible, or unconnected to the wording and purpose of the agreement. See id. Rather, the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement, which provides no basis for finding the award deficient. Id. Accordingly, we will deny the exception.2/

V. Decision

The Union's exception is denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)

1/       Article XXI, Section 8 provides:

Section 8. A reemployment priority list of employees separated from their positions by reduction-in-force action will be established and maintained in accord with regulations of higher authority. When a vacancy occurs in the competitive level of their former positions, employees on the list will be offered the position in order of their retention scores for positions management determines will be filled and when there are no employees with higher priority rights to the positions.

Award at 5.

 2/ Because we have not modified the award to provide backpay, we deny the Union's exception claiming that the Arbitrator's failure to award attorney fees is deficient. See, for example, U.S. Department of Labor and American Federation of Government Employees, Local 12, 17 FLRA 952, n.1 (1985).

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