72 FLRA No. 37                                                                                                                   

 

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

_____

 

 

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

FOOD & DRUG ADMINISTRATION

SAN ANTONIO, TEXAS

(Agency)

 

and

 

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 254

(Union)

 

0‑AR‑5608

_____

 

DECISION

 

April 20, 2021

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Chairman DuBester concurring)

 

Decision by Member Abbott for the Authority

 

1. Statement of the Case

 

This case involves a dispute over which type of telework agreement is appropriate for the grievant, not whether the grievant is eligible for telework.^[1]  Arbitrator Sara Adler found that the Agency “violated law and [Article 26 of the parties’ agreement] when it refused to provide [the g]rievant a recurrent telework agreement.”^[2]  As described below, the Agency fails to demonstrate how the award is based on nonfacts or fails to draw its essence from the parties’ agreement.  Accordingly, we uphold the award.

 

2. Background and Arbitrator’s Award

 

The grievant spends a quarter to half of his time in the field.  Pursuant to the parties’ agreement, the grievant submitted a request for a recurring telework agreement to his supervisor in August 2017.^[3]  The supervisor denied the request in September.  The Union subsequently filed this grievance.  The Agency denied the grievance, and the Union invoked arbitration.

 

The issue, as framed by the Arbitrator, was “[d]id the Agency violate [the] law or the parties’ [agreement] when it denied [the g]rievant’s request for a recurring telework agreement in September, 2017.”^[4]

 

As relevant here, Article 26 of the parties’ agreement provides for two types of telework agreements, episodic and recurring.  Recurring telework “may be used when there is recurring opportunity to perform work at an alternate site,” and episodic telework may be used “for individual days or hours within a pay period, or for a special assignment or project on a short[‑]term basis.”^[5]

 

The Arbitrator found that the grievant has been teleworking since 2011, his work has been satisfactory since 2011, and his situation meets all of the requirements for telework.  The Arbitrator further found that “[a]lthough a position with significant fieldwork doesn’t perfectly fit the definitions [of recurring or episodic telework], it is a closer fit to the definition of recurr[ing] telework.”^[6]  Based on this, the Arbitrator found that the Agency “violated [the] law and [Article 26] when it refused to provide [the g]rievant a recurr[ing] telework agreement.”^[7]  As a remedy, the Arbitrator ordered the Agency to enter into a recurring telework agreement with the grievant.

 

The Agency filed exceptions on March 23, 2020, and the Union filed its opposition on April 22, 2020.

 

3. Analysis and Conclusions

 

1. The award is not based on nonfacts.

 

The Agency argues that the award is based on a nonfact.^[8]  Specifically, the Agency argues the Arbitrator’s finding that the grievant was previously on a recurring telework agreement is directly contradicted by the evidence, and is the reason the Arbitrator sustained the grievance.^[9]

 

To establish that an award is based on a nonfact, the excepting party must establish that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[10]  The record clearly shows that the grievant was on an episodic telework agreement starting in 2015.^[11]  Therefore, the Agency is correct that the award contains an erroneous fact.

 

However, this was not the “but for” reason the Arbitrator sustained the grievance. Instead, the Arbitrator relied on the definitions of episodic and recurring telework provided by Article 26 of the parties’ agreement, and applied them to the grievant’s work situation to find that the Agency incorrectly denied the grievant’s recurring telework request.^[12]  As such, the Agency fails to demonstrate that the Arbitrator would have reached a different conclusion but for the erroneous factual finding.^[13]  Accordingly, we deny this exception.

 

2. The award does not fail to draw its essence from the parties’ agreement.

 

The Agency argues the award fails to draw its essence from the parties’ agreement because it “does not represent a plausible interpretation of the [agreement] and manifestly disregards key portions of [Article 26].”^[14]

 

As relevant here, the Authority has held that mere disagreement with an arbitrator’s interpretation is not grounds for finding the award fails to draw its essence from the parties’ agreement.^[15]  Furthermore, the Authority has held that a different interpretation of the parties’ agreement does not automatically render the arbitrator’s interpretation implausible.^[16]

 

Here, the Arbitrator relied on the definitions for “episodic” and “recurring” telework provided by Article 26, Section 3 of the parties’ agreement in determining which type of telework agreement was appropriate for the grievant.^[17]  While the Agency disagrees with the Arbitrator’s interpretation, it fails to identify any language that demonstrates the Arbitrator ignored, irrationally interpreted, or implausibly read the parties’ agreement in concluding that the Agency incorrectly denied the grievant’s telework request.^[18]  Accordingly, we deny the exception.

 

4. Order

We deny the Agency’s nonfact and essence exceptions.  Accordingly, we uphold the award.

 

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