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54 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION

LOCAL 268

(Union)

and

U.S. DEPARTMENT OF ENERGY

OAK RIDGE OPERATIONS

OAK RIDGE, TENNESSEE

(Agency)

0-AR-2941

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DECISION

September 28, 1998

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Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator George V. Eyraud, Jr. 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance, which claimed that the grievant was entitled to a temporary promotion. We conclude that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant claimed that he was entitled to a temporary promotion to GS-13 for having performed the duties of the organizational property management officer (OPMO). He alleged that he had performed the duties of the OPMO position during the period that the existing OPMO was on detail until his replacement was appointed.

The Arbitrator denied the grievance. He found that the grievant could not be awarded a temporary promotion because during the period for which he claimed a temporary promotion, the Agency had instituted a freeze on temporary promotions. He ruled that the freeze was controlling under the parties' collective bargaining agreement because the Union had not objected to the freeze when proposed by the Agency.

Although the Arbitrator found that temporary promotions were precluded during the period for which the grievant claimed a promotion, he determined that the "central issue" was whether the grievant had ever been assigned the duties of the OPMO position. Award at 8. He noted that the parties' agreement provided that "[e]mployees temporarily assigned to higher graded positions will be given a temporary promotion when the employee meets basic qualifications at [the] time of the assignment." Id. at 9 (quoting Article 17, Section 6(B)). He found that the grievant was not entitled to a promotion under the agreement because he had never been assigned the duties of the OPMO position and he had been specifically instructed by his supervisor not to perform such duties. The Arbitrator noted that instead, the grievant's two supervisors performed the duties of the OPMO position during the disputed period.

In denying the grievance, the Arbitrator specifically addressed the grievant's assertion that his supervisors were not authorized to act as the OPMO because they had not been appointed by the office manager or the existing OPMO. While noting that the Agency disagreed with the grievant over the authority of the grievant's supervisors to act as the OPMO, the Arbitrator concluded that the assertion nevertheless failed to support the grievant's position because the grievant also had never been appointed by the office manager or existing OPMO to act as the OPMO during the disputed period.

III. Positions of the Parties

A. Union's Exceptions ⁽¹⁾

The Union contends that the award is deficient for several reasons.

The Union argues that the Agency unilaterally implemented the freeze on temporary promotions without notifying and bargaining on request of the Union. The Union maintains that it timely objected to the proposed freeze under Article 2, Section 1(B) of the collective bargaining agreement, which precluded the freeze from going into effect. Consequently, the Union contends that the award violates section 7116(a)(5) and (7) of the Statute by denying the grievance partially based on the finding that the Agency had implemented a freeze. The Union also contends that the award fails to draw its essence from the collective bargaining agreement because the Union's objection to the proposed freeze under Article 2 precluded the freeze from going into effect. In addition, the Union contends that the Arbitrator erroneously found that the Union had not objected to the proposed freeze. The Union maintains that until the Arbitrator's award, it was unaware that the freeze had been implemented by the Agency.

The Union also contends that the award is contrary to 41 C.F.R. §§ 109-1.5005-109-1.5006. The Union claims that the award is deficient by allowing the grievant's supervisors to appoint themselves the OPMO and prohibit the grievant from assuming OPMO duties. The Union disputes the authority of the supervisors and argues that the grievant was properly assigned the OPMO duties by the existing OPMO when the latter was detailed. The Union also argues that the Agency violated the regulations by allowing the grievant's immediate supervisor to appoint herself as OPMO because she was not qualified to act in that capacity. The Union further contends that the Agency violated Executive Order 12871 by allowing the grievant's supervisors to appoint themselves as OPMO.

B. Agency's Opposition

The Agency contends that the Arbitrator's factual finding that the grievant was never assigned the duties of the OPMO position requires the denial of all the Union's exceptions. The Agency asserts that in view of this finding, the only possible outcome in this case was the denial of the grievance. The Agency maintains that this finding was dispositive of the grievance and should be dispositive of the Union's exceptions. The Agency argues that all the issues raised by the Union in its exceptions are inconsequential.

The Agency contends that even if the Arbitrator's finding that the grievant had never been assigned the higher-graded duties is not viewed as dispositive, the Union's exceptions provide no basis for finding the award deficient. The Agency maintains that the Arbitrator correctly found that the Union failed to object to the proposed freeze on promotions and that consequently, the freeze was properly implemented under the parties' collective bargaining agreement. Thus, the Agency asserts that the Union fails to establish that the award is contrary to the Statute or fails to draw its essence from the collective bargaining agreement.

The Agency also contends that the Union fails to establish any conflict with 41 C.F.R. § 109-1.5005 or § 109-1.5006. The Agency claims that both of the grievant's supervisors were properly authorized to act as the OPMO pursuant to delegations of authority from the field office manager, specified in agency regulations. Finally, the Agency argues that the Union's reliance on Executive Order 12871 is misplaced.

IV. Analysis and Conclusions

A. Exception Pertaining to E.O. 12871 is Barred by Section 2429.5 of the Authority's Regulations

Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 328 (1995) (Ft. Sam Houston). There is no indication in the record that the Union argued to the Arbitrator, as it has in its exceptions, that the Agency violated Executive Order 12871. As the issue relates to the Agency's conduct, it clearly could have, and should have, been presented to the Arbitrator. See American Federation of Government Employees, Local 3627 and Social Security Administration, Office of Hearings and Appeals, Orlando, Florida, 53 FLRA 1351, 1351 n* (1998) (SSA). Accordingly, this exception is barred from consideration by the Authority under section 2429.5. See SSA, 53 FLRA at 1351 n.*; Ft. Sam Houston, 50 FLRA at 328.

B. The Union Fails to Establish that the Award is Deficient

The Arbitrator determined that the central issue of the grievance was whether the grievant had ever been assigned to perform the duties of the OPMO position. He denied the grievance because the grievant had not. The Arbitrator also found that the grievant could not be awarded a temporary promotion because of the freeze on temporary promotions. The Agency claims that the Arbitrator's finding that the grievant had never been assigned the duties of the OPMO position is dispositive and that the Union's exceptions raising other matters can provide no basis for finding the award deficient.

The only assertion in the Union's exceptions that addresses the Arbitrator's denial of the grievance because the grievant had never been assigned the duties of the OPMO position is the Union's claim that the grievant was properly assigned the duties of the OPMO position by the existing OPMO. We construe this claim as an assertion that the award is based on a nonfact and find that the Union fails to establish that the award is deficient.

To establish that an award is based on a nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry AFB). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594. As the Union disputes the factual matter resolved by the Arbitrator of whether the existing OPMO had assigned the OPMO duties to the grievant, no basis is provided for finding the award deficient.

The Authority has repeatedly recognized that when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient to have the award found deficient. See, e.g., American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 53 FLRA 1353, 1357 (1998) (McClellan AFB); Indian Educators Federation, New Mexico Federation of Teachers and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque and Navajo Areas, Albuquerque, New Mexico, 53 FLRA 352, 361 (1997) (BIA). As the Union provides no basis for finding deficient the Arbitrator's denial of the grievance because the duties had never been assigned to the grievant, the Union's exceptions can be denied on this basis alone. See McClellan AFB, 53 FLRA at 1357; BIA, 53 FLRA at 361. But even if we considered these exceptions, they provide no basis for finding the award deficient.

The Union fails to establish that the award is contrary to 41 C.F.R. §§ 109-1.5005-109-1.5006 because the grievant's supervisors were not authorized to act as the OPMO and prohibit the grievant from performing the duties of the OPMO. In support, the Union merely alleges that the office manager never authorized the actions, while the Agency specifically asserts that the office manager properly authorized, in accordance with 41 C.F.R. § 109-1.5005, the acts of the supervisors under specified agency regulations. Furthermore, even if the Union's contention were true, the grievant was not authorized to act as the OPMO, as specifically found by the Arbitrator. Thus, the Union fails to show how the Arbitrator's denial of the grievance is contrary to 41 C.F.R. §§ 109-1.5005-109-1.5006.

The Union also fails to establish that the award is contrary to the Statute, fails to draw its essence from the agreement, or is based on a nonfact. These exceptions are all based on the Union's assertion that the Arbitrator erroneously found that the Union had not objected to the proposed freeze. However, the Union cannot establish that the Arbitrator's factual finding is deficient because the parties disputed before the Arbitrator whether the Union had objected to the proposed freeze. See Lowry AFB, 48 FLRA at 594. As the essence and section 7116 claims are based on an unsustainable premise, the essence and section 7116 claims cannot provide a basis for finding the award deficient.⁽²⁾

Accordingly, we deny the Union's exceptions.

V. Decision

The Union's exceptions are denied.

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

1. After the Union filed its exceptions, the Union submitted for consideration by the Authority "newly discovered evidence" that was not in existence when it filed its exceptions. Union Submission at 1. Arbitration awards are not subject to review on the basis of evidence that comes into existence after the arbitration hearing. See U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 53 FLRA 984, 990 (1997); National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 519-20 (1997). Consequently, we have not considered the "newly discovered evidence" submitted by the Union.

2. Furthermore, although the Union contends that the award is contrary to section 7116(a)(5) and (7), the Union is actually claiming that the Agency's actions in implementing the freeze violated the Statute. This claim could have been, but was not, presented to the Arbitrator. Consequently, it is barred from consideration by the Authority. See SSA, 53 FLRA at 1351 n.*. Moreover, the Union's claim that it did not know that the Agency had implemented a freeze until the Arbitrator's award is not consistent with the Union's extensive discussion of the freeze in its post-hearing brief to the Arbitrator.

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