---

48 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

MCGUIRE AIR FORCE BASE, NEW JERSEY

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1778

(Union)

0-AR-2473

_____

DECISION

October 25, 1993

_____

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 Diana S. Mulligan 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.

A grievance was filed disputing the Agency's ban on table games during lunch time. The Arbitrator first found that the grievance was timely and that, although the grievance was procedurally defective, she would not dismiss it because the Agency's actions caused the breach of procedure. On the merits, the Arbitrator ordered the Agency to cease and desist from banning table games during lunch time until it chooses to enact such a ban in the proper form and manner. The Arbitrator also determined that, under the terms of the parties' collective bargaining agreement, her fees and expenses should be split equally between the parties.

In its exception, the Union disputes the Arbitrator's allocation of fees and expenses. We conclude that the Union fails to establish that the Arbitrator's allocation is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

When the grievant was told by management to stop playing dominoes during lunch on August 1, 1992, he filed a grievance disputing the ban on table games during lunch time. The Agency claimed that the grievance was both untimely and failed to cite the basis for the grievance, as required by the parties' collective bargaining agreement. The grievance was not resolved and was submitted to arbitration.

The Arbitrator found that the grievance was timely filed because the Agency had not adequately communicated its earlier policy banning table games during lunch time. The Arbitrator agreed with the Agency that the grievance was procedurally defective in failing to cite the agreement provision on which the grievance was based until February 1993. However, the Arbitrator excused the deficiency. She found that it was the Agency's own actions in failing to notify the Union of the ban on games that caused the Union's breach of procedure. On the merits, the Arbitrator ordered the Agency to cease and desist from banning table games during lunch time until it chooses to enact such a ban in the proper form and manner.

In allocating her fees and expenses, the Arbitrator cited Article 34, Section 6(B) of the parties' collective bargaining agreement, which provides: "In those cases in which the respondent's action is modified, the fee and expense of the arbitrator shall be borne equally by the respondent and the complainant." In accordance with this provision, the Arbitrator determined "that this Award has modified the respondent's actions . . . ." Letter Accompanying Award. Accordingly, the Arbitrator split her fees and expenses equally between the Union and the Agency.

III. Union's Exception

The Union disputes only the Arbitrator's allocation of her fees and expenses. The Union cites Article 34, Section 6(A) of the parties' collective bargaining agreement, which provides: "In those cases in which the respondent is not upheld, and is completely reversed, the fee and expenses of the arbitrator shall be borne entirely by the respondent." The Union contends that the Arbitrator erred by splitting her fees and expenses, instead of allocating them entirely to the Agency. The Union argues that it "clearly won" this case because the grievance was found to be timely and the Agency was ordered to cease and desist from banning games during lunch time. Exception at 1. The Union asserts that the Arbitrator's finding that the grievance was procedurally defective should not be considered because it "states the opinion of the arbitrator not an award." Id.

IV. Analysis and Conclusions

We view the Union's exception as a claim that the award fails to draw its essence from the collective bargaining agreement, and we conclude that the Union fails to establish that the award is deficient.

In order to establish that an award is deficient because it fails to draw its essence from the agreement, the appealing party must show one of the following: (1) that the award cannot in any rational way be derived from the agreement; (2) that the award is so unfounded in reason or in fact, so unconnected to the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) that the award does not represent a plausible interpretation of the agreement; or (4) that the award evidences a manifest disregard for the agreement. For example, U.S. Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation Of Federal Employees, Local 1827, 35 FLRA 1307, 1309 (1990) (Defense Mapping). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement based on claims that the arbitrator misinterpreted the agreement or misallocated fees under the terms of the agreement. See Defense Mapping, 35 FLRA at 1309-10; Pension Benefit Guaranty Corporation and National Treasury Employees Union, Chapter 211, 32 FLRA 141, 145-46 (1988) (PBGC).

In this case, the Arbitrator determined that the award modified the Agency's actions within the meaning of Article 34, Section 6(B) and allocated her fees and expenses equally between the parties. This determination constituted her interpretation and application of the fee provisions of the agreement. The Union's argument that it "clearly won" this case provides no basis for finding the award deficient. Exception at 1. The Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of Article 34, Section 6 and an attempt to have its interpretation substituted for that of the Arbitrator. Consequently, the exception provides no basis for finding the award deficient. See Defense Mapping, 35 FLRA at 1310 (union's argument that arbitrator's fee assessment disregarded the agreement provided no basis for finding the award deficient); PBGC, 32 FLRA at 145-46 (agency failed to establish that the arbitrator's ruling on the division of fees was deficient). The question of the allocation of fees under the agreement was a question solely for the Arbitrator because it was the Arbitrator's construction of Article 34, Section 6 for which the parties bargained, not the Authority's construction. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990).

Accordingly, we will deny the Union's exception.

V. Decision

The Union's exception is denied.

---

---

---

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

---