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45:0480(38)AR
The decision of the Authority follows:
45 FLRA No. 38
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Sol M. Yarowsky 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 Union's exceptions.1/
A grievance was filed after the Agency failed to assign overtime work to certain bargaining unit employees. The Arbitrator denied the grievance. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient.
II. Background and Arbitrator's Award
In connection with work requirements in preparation for Operation Desert Storm/Shield, the Agency assigned certain overtime work to military personnel. A grievance was filed claiming that, by failing to assign the work to unit employees, the Agency violated Article 10, Section 1, of the parties' collective bargaining agreement.2/ When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator concluded that the Agency did not violate Article 10, Section 1, of the parties' agreement. As relevant here, the Arbitrator found, based on the Agency's work needs, that the Agency was not required to assign the disputed overtime work to unit employees. The Arbitrator also found that the Agency's "discretion in assigning overtime work was not abused and was 'consistent with work load requirements[]'" under Article 10, Section 1. Award at 7. Accordingly, the Arbitrator denied the grievance.3/
III. Positions of the Parties
The Union asserts that the Arbitrator misinterpreted Article 10, Section 1. Specifically, the Union asserts that the portion of the section addressing workload requirements "has no applicability" in this case. Exceptions at 18. The Union also argues that the Arbitrator erred in failing to address the portion of the section which provides preference to employees "currently assigned the job." Id. at 19.
The Agency asserts that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and does not demonstrate that the award is deficient.
IV. Analysis and Conclusions
We construe the Union's arguments that the Arbitrator misinterpreted Article 10, Section 1, of the parties' agreement as a contention that the award fails to draw its essence from the agreement. To establish that an award is deficient on this ground, the party making the allegation must demonstrate 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992) (Carswell).
The Union has failed to establish that the award is deficient under any of these tests. Based on his interpretation of Article 10, Section 1, the Arbitrator concluded that the Agency's assignment of military personnel to perform the disputed overtime work did not violate the parties' agreement. The Arbitrator found that the military personnel were as qualified as unit employees to perform the work and that the Agency did not abuse its discretion under Article 10, Section 1, by failing to assign the work to unit employees. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or otherwise deficient. As such, the Union has not shown that the award fails to draw its essence from the agreement.
The Union also has not shown that the Arbitrator's failure to address specifically the preference portion of Article 10, Section 1, renders the award deficient. That an award does not address specific provisions of an agreement does not establish that such provisions were not considered by the arbitrator and does not provide a basis for finding the award deficient. See Illinois Air National Guard, 182nd Tactical Air Support Group and The Association of Civilian Technicians, Illinois Chapter 34, 34 FLRA 591, 593-94 (1990).
In our view, the Union's arguments concerning Article 10, Section 1, constitute mere disagreement with the Arbitrator's interpretation and application of the agreement. As such, they provide no basis for finding the award deficient. See Carswell, 43 FLRA at 1270.
V. Decision
The Union's exceptions are denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1/ The Union also filed a response to the Agency's opposition as well as an additional submission, and the Agency filed a response to the Union's final submission. As the Authority's regulations do not provide for the filing of these documents, they have not been considered. For example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103 (1992).
2/ Article 10, Section 1, provides, in pertinent part, that:
Overtime work assignments will be distributed fairly and equitably . . . among all qualified employees, consistent with workload requirements. Preference will be given to those employees who are currently assigned to the job. . . .
Joint Exh. 1 at 23.
3/ The Arbitrator concluded that, in addition to Article 10, Section 1, the Agency also relied on its right under section 7106(a)(2)(D) of the Statute to take action in an emergency. In view of our decision, we do not address this conclusion or the Union's exceptions to it.