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38 FLRA No. 36

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ANTILLES CONSOLIDATED EDUCATION ASSOCIATION

OEA/NEA

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ANTILLES CONSOLIDATED SCHOOL SYSTEM

(Agency)

0-AR-1783

DECISION

November 23, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator Stephen L. Hayford 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 Department of the Navy filed an opposition on behalf of the Agency to the Union's exceptions.

The grievance concerned the Agency's selection of teachers to fill Gifted Extended Learning Program (ELP) positions as well as the manner in which the Agency established and implemented training requirements related to ELP and reimbursed teachers for that training. The Arbitrator concluded that the Agency did not violate law, regulation, or the parties' agreement and dismissed the grievance.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute.

II. Background and Arbitrator's Award

In 1987 the Agency decided to adopt the ELP as a method of providing educational instruction to certain children. The program was implemented by the Agency at the beginning of the 1987-88 school year. In grades three through six, the ELP program is administered to "clusters" of identified students by the classroom teacher ("cluster teacher") assigned to the class in which the students are placed. Award at 2. In grades seven through twelve, the ELP is administered by separate ELP teachers.

After the decision to adopt the ELP was made, the Agency learned that the Agency's accreditation body required teachers employed in ELP programs to obtain 12 semester hours of specialized instruction. The Agency also learned that none of its teachers, including two teachers recently-hired to fill ELP positions, met the certification requirements.

The Agency subsequently arranged for four, 3-hour courses to be provided for teachers at its facilities at a cost of $455.50 per course. Although all teachers were allowed to enroll in the courses, the Agency provided reimbursement (75 percent of the tuition costs) only to those teachers designated as "cluster teachers" or ELP teachers. Id. at 3.

A grievance was filed over the filling of the two ELP positions as well as the establishment and implementation of the training requirements. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated that the three issues before him were:

1. Did the Employer violate Article 22, Section e of the Negotiated Agreement by failing properly to implement the Training Committee procedures set forth therein? If so, what is the proper remedy?

2. Did a violation of any relevant provision of the Negotiated Agreement, or any relevant law, rule, regulation, [Agency] policy or past practice transpire as a result of the manner in which the Employer selected the individuals who filled the ELP teacher vacancies posted for the 1987-1988 school year? If so, what is the proper remedy?

3. Did a violation of any relevant provision of the Negotiated Agreement, or any law, rule, regulation, [Agency] policy or past practice occur when the Employer failed to provide a tuition reimbursement to all teachers who enrolled in and completed one or more of the . . . Gifted Student courses? If so, what is the proper remedy?

Id. at 4.

With respect to the first issue, the Union asserted that the Agency violated Article 22, Section e of the parties' collective bargaining agreement by failing to allow the parties' training committee to make recommendations for the manner in which training needs relative to the ELP should be implemented. ⁽¹⁾ According to the Union, the Agency's actions constituted "circumvention" of the Training Committee. Id. at 6.

The Arbitrator concluded that nothing in the plain wording of Article 22, Section e, or the parties' past practice, established that "all matters pertaining to training . . . would be submitted to the Committee for recommendations." Id. at 13. The Arbitrator concluded also that the Union failed to prove that the Agency's failure to submit to the Training Committee the issue of how best to provide the required ELP training violated any "law, rule, regulation, policy, past practice or . . . [a]greement provision." Id. Accordingly, the Arbitrator dismissed this aspect of the grievance.

With respect to the second issue, the Union contended that the Agency's selection of two ELP teachers violated Article 19, Section e of the parties' agreement. ⁽²⁾ The Union argued that the vacancy announcements for the two positions did not clearly state the requirements for the positions and did not inform applicants that the Agency would reimburse selectees for a portion of necessary training expenses. The Union argued also that the Agency failed to provide copies of the announcements to individuals designated by the Union. Finally, the Union maintained that the Agency filled the two positions with "unqualified individuals from outside the bargaining unit . . . ." Id. at 7.

The Arbitrator rejected the Union's arguments. The Arbitrator determined first that the Union failed to establish that it requested the Agency to provide designated individuals with copies of the vacancy announcements. The Arbitrator found also that although different announcements stated the educational requirements somewhat differently, the Union had not "shown how the claimed irregularity . . . prejudiced any bargaining unit members." Id. at 15. The Arbitrator also found that as the Agency was not aware of the training requirements at the time the announcements were posted, the Agency's failure to include information concerning the training, and reimbursement for the training, on the announcements did not violate the parties' agreement. Finally, the Arbitrator stated that the Union had "not adduced evidence to prove that any of the bargaining unit members . . . possessed qualifications (for teaching gifted children) equal to the two non-unit selectees." Id. As such, the Arbitrator rejected the Union's contention that the Agency violated Article 19, Section e of the parties' agreement.

As for the third issue, the Union argued that the Agency violated section 7116(a)(5) of the Statute and the parties' agreement by unilaterally changing the parties' past practice whereby the Agency subsidized tuition expenses of all teachers who attended training courses. The Union argued also that by failing to subsidize the tuition expenses of teachers who became ELP or cluster teachers after the courses were offered initially, the Agency failed to provide equal pay for equal work, as required by 5 U.S.C. § 2301(b)(3).

The Arbitrator rejected the Union's arguments. The Arbitrator noted that the Agency had previously subsidized tuition for job-related courses. The Arbitrator found, however, that the ELP courses were job-related only for ELP teachers and cluster teachers. The Arbitrator concluded that the Union had "failed to prove" that the disputed courses were "necessary for a non-ELP teacher/non-cluster teacher . . . ." Id. at 16. In addition, the Arbitrator found that there was no basis to order retroactive reimbursement for teachers who became ELP or cluster teachers after the disputed courses were offered. According to the Arbitrator:

The determination of which bargaining unit members were entitled to tuition subsidies was based on the job duties of those teachers in the Fall of 1987, at the time the courses were offered. It is at that point in time, and not on a post facto basis, that the propriety of the [Agency's] tuition subsidy allocation decisions is properly measured.

Id. at 17 n.5.

As his award, the Arbitrator denied the grievance. The Arbitrator stated that, in view of his award, it was not necessary to address the Union's request for attorney fees.

III. The Parties' Positions

A. The Union's Exceptions

The Union filed six exceptions to the Arbitrator's award. First, the Union claims that the Arbitrator failed to adequately address the Union's "equal-pay-for-equal-work argument . . . ." Exceptions at 2. According to the Union, the award violates 5 U.S.C. § 2301(b)(3) because "[c]ompliance with merit system principles obligates management to retroactively subsidize those teachers whose work is equal in value to the work of teachers who received subsidies from the outset." Id.

Second, the Union claims that the Agency circumvented the parties' training committee. The Union claims that allowing the Agency "to ignore the committee at will would render an important contractual provision meaningless." Id. at 3.

As its third exception, the Union asserts that the Agency's negligent failure to inform itself as to the educational requirements applicable to the ELP program resulted in the issuance of inadequate vacancy announcements. According to the Union, by issuing improper vacancy announcements, the Agency discouraged unit employees from applying for the two ELP vacancies and, thereby, violated the requirements of 5 U.S.C. § 2301(b)(1) that "'selection and advancement . . . be determined solely on the basis of . . . fair and open competition . . . .'" Id.

Fourth, the Union asserts that, consistent with section 7106(b)(3) of the Statute, it is entitled to bargain over appropriate arrangements for employees who were adversely affected by the exercise of the Agency's right to fill the two vacant ELP positions. The Union states:

Upon learning of management's exercise of its authority to hire and assign teachers for the ELP, the [Union] immediately filed a grievance in the nature of a bargaining proposal. Management's refusal to negotiate this proposal constitutes a violation of . . . [s]ection 7106(b).

Id. at 4.

As its fifth and sixth exceptions, the Union notes that the Agency failed to timely file its post-hearing brief with the Arbitrator. According to the Union, when it informed the Arbitrator of the late filing, the Arbitrator offered the Union the options of: (1) filing a rebuttal to the brief, or (2) declaring a "mis-arbitration[.]" Id. The Union states that neither option was "adequate" because a rebuttal brief would have been ineffective and a "'mis-arbitration' would [have been] cost-prohibitive." Id. at 5. The Union claims that because of the late filing, the Agency had an unfair advantage over the Union.

In addition, the Union claims that the Agency's written request asking the Arbitrator to consider its untimely filed brief constitutes an ex parte communication prohibited by 5 C.F.R. § 2414. According to the Union, in the letter the Agency's representative "cited her inexperience in an attempt to gain the sympathy of the [A]rbitrator." Id. The Union asserts that although it requested a copy of the Agency's letter to the Arbitrator, a copy was not provided.

B. The Agency's Opposition

The Agency argues that the Union's exceptions constitute mere disagreement with the Arbitrator's findings, reasoning, and conclusions. In particular, with respect to the Union's fifth and sixth exceptions, the Agency asserts that: (1) as the Union rejected the Arbitrator's offer to either declare a mis-arbitration or enable the Union to file a rebuttal brief, the Union cannot now claim that it was disadvantaged by the late filing of the Agency's brief; and (2) the Union has not shown how the letter accompanying the untimely brief constituted prohibited ex parte communication.

IV. Analysis and Conclusions

We will address the Union's exceptions in order.

A. 5 U.S.C. § 2301(b)(3)

We reject the Union's argument that the award violates 5 U.S.C. § 2301(b)(3). That section provides that "Federal personnel management should be implemented consistent" with, among others, the merit system principle that:

Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.

The Union asserts that the Arbitrator failed adequately to address its argument regarding 5 U.S.C. § 2301(b)(3). The Union maintains, in this regard, that the Agency is required by law to retroactively subsidize the tuition expenses of teachers who have performed substantially the same duties as the ELP and cluster teachers who received tuition subsidies for the 1987-88 school year.

First, there is no support in the record for the Union's assertion that the Arbitrator failed adequately to address the Union's argument. In fact, the Arbitrator found specifically that the issues before him did not encompass retroactive subsidies for unit employees who became ELP or cluster teachers after the disputed courses were offered. Award at 17 n.5. Moreover, "[a]t the leave of the parties," the Arbitrator framed the issue concerning tuition subsidies as encompassing only the courses offered during the 1987-88 school year. Id. at 4.

It is well established that, in the absence of a stipulation of the issues by the parties, an arbitrator's formulation of the issues is accorded substantial deference. See, for example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 832-33 (1990) (SSA, Birmingham). As the Arbitrator specifically addressed the Union's argument regarding retroactive subsidies, and as his conclusion with respect to that argument is consistent with the issue as he framed it, the Union's assertion to the contrary provides no basis for finding the award deficient. See, for example, id.

Second, the Union offers no citations of authority for its assertion that the Agency was required under 5 U.S.C. § 2301(b)(3) to provide retroactive tuition subsidies and no such authority is apparent to us. Accordingly, consistent with the Arbitrator's framing and resolution of the issues, we conclude that the Union has failed to demonstrate that the award violates 5 U.S.C. § 2301(b)(3). See Headquarters, U.S. Army Training and Doctrine Command, Fort Monroe, Virginia and Local R4-7, National Association of Government Employees, 34 FLRA 537, 541 (1990) (union failed to demonstrate that award violated 5 U.S.C. § 2301(b)(3)).

B. Essence of the Agreement

The Union asserts that the Agency violated Article 22, Section e of the parties' agreement when it "circumvented" the training committee. Exceptions at 2. According to the Union, "[e]stablished legal principles prevent the parties from arbitrarily ignoring a duly negotiated contractual provision." Id. at 3. We construe this exception as a contention that the award fails to draw its essence from the parties' agreement.

To establish that an award fails to draw its essence from an agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact or so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 319 (1990) (Customs Service).

The Union has failed to demonstrate that the Arbitrator's award is deficient under any of these tests. In particular, the Arbitrator found no evidence, from the parties' bargaining history or past practice, that the Agency was required, pursuant to Article 22, Section e, to submit the issue relating to ELP requirements to the training committee. Nothing in the plain wording of Article 22, Section e, or in the Union's arguments supports a conclusion that the Arbitrator's interpretation of the provision is irrational, implausible, or unconnected to the wording or purposes of the provision. We conclude, in this regard, that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. As such, the exception provides no basis for finding the award deficient. See, for example, Customs Service, 37 FLRA at 319.

C. 5 U.S.C. § 2301(b)(1)

5 U.S.C. § 2301(b)(1) sets forth the merit system principle that:

Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

The Union claims that the award violates this provision because "[t]he manner in which management filled the gifted education vacancies did not provide for fair and open competition, nor did it ensure that all potential applicants received equal opportunity." Exceptions at 3.

We reject the Union's assertion. The Arbitrator found, as pertinent here, that the Union failed to establish that: (1) the wording of the vacancy announcements "prejudiced any bargaining unit members[]"; and (2) any unit members "possessed qualifications . . . equal to the two non-unit selectees." Award at 15. These findings were based on the Arbitrator's evaluation of the testimony, evidence, and arguments developed at the arbitration hearing.

It is clear that the Union disagrees with the Arbitrator's findings. The Union offers no support for its argument that the Arbitrator's findings violate 5 U.S.C. § 2301(b)(1), however. Disagreement with an arbitrator's evaluation of evidence and testimony, or with conclusions based on such evaluations, provide no basis for finding an award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 35 FLRA 1218, 1222 (1990). Accordingly, this Union exception provides no basis for finding the award deficient.

D. 5 U.S.C. § 7106(b)(3)

The Union asserts the following, in pertinent part:

5 U.S.C. § 7106(b)(3) sanctions bargaining over "'appropriate arrangements for employees adversely affected by the exercise of any authority'" by management. . . . Upon learning of management's exercise of its authority to hire and assign teachers for the ELP, the [Union] immediately filed a grievance in the nature of a bargaining proposal. Management's refusal to negotiate this proposal constitutes a violation of 5 U.S.C. [§] 7106(b).

Exceptions at 4. The Union asserts that although the Agency's alleged violation of section 7106(b)(3) could have been brought as an unfair labor practice charge, the parties' negotiated grievance procedure encompasses any claimed violation of law, rule, or regulation affecting unit employees' conditions of employment.

We note, at the outset, that the Union's assertion that its grievance was "in the nature of a bargaining proposal[]" is not clear. There is nothing in the Arbitrator's award, or the record as a whole, to demonstrate that the Union requested to bargain over the issues in this case. Moreover, section 7106(b)(3) of the Statute provides only that "[n]othing shall preclude" parties from bargaining over appropriate arrangements for adversely affected employees. Section 7106(b)(3) does not require bargaining, however. Instead, unfair labor practices relating to the obligation to bargain are set forth in section 7116 of the Statute.

More importantly, as noted previously, the parties specifically provided the Arbitrator with authority to frame the issues to be resolved in arbitration. Award at 4. Those issues do not encompass, implicitly or explicitly, any allegation relating to an alleged refusal to bargain. As such, the Union's assertion that the Agency committed an unfair labor practice by refusing to bargain over appropriate arrangements provides no basis for finding the award deficient. See, for example, SSA, Birmingham, 35 FLRA at 832-33.

E. Remaining Exceptions

The Union's fifth and sixth exceptions relate to the Agency's failure to timely file its post-hearing brief with the Arbitrator. As its fifth exception, the Union contends that the Arbitrator improperly allowed the Agency to submit the untimely brief. As its sixth exception, the Union asserts that the Agency's letter requesting the Arbitrator to consider the brief constituted a prohibited ex parte communication.

We construe the Union's fifth exception as a contention that the Arbitrator denied the Union a fair hearing. For the following reasons, we deny this exception.

It is well established that an arbitrator has considerable latitude in the conduct of an arbitration hearing. See, for example, U.S. Department of the Army, Pine Bluff Arsenal, Pine Bluff, Arkansas and American Federation of Government Employees, Local 953, 34 FLRA 293, 294-95 (1990) (Pine Bluff Arsenal). To demonstrate that an arbitrator failed to conduct a fair hearing, it must be shown that the arbitrator refused to hear pertinent or material evidence or otherwise improperly prejudiced a party in some way. Id.

In the instant case, it is not disputed that after receipt of the Agency's untimely brief, the Arbitrator offered the Union the options of (1) filing a rebuttal to the brief; or (2) declaring a "mis-arbitration . . . ." Exceptions at 4. ⁽³⁾ The Union asserts that these options were not adequate. The Union has not shown, however, that these options were not sufficient to safeguard its rights or that, by failing to avail itself of the options, the Union was prejudiced. Accordingly, we reject the Union's contention that the award is deficient because the Arbitrator improperly allowed the Agency to file an untimely brief. See, for example, SSA, Birmingham, 35 FLRA at 834.

Consistent with our finding that the Union failed to demonstrate that the award is deficient because the Arbitrator allowed the Agency to file an untimely brief, we deny the Union's exception that the letter accompanying the brief constituted a prohibited ex parte communication. We note, in this regard, that the Union argues that the letter constituted an attempt by the Agency's representative to "gain the sympathy of the [A]rbitrator." Exceptions at 5. In view of this assertion, we construe this exception as a contention that the Arbitrator was biased.

To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. See, for example, U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 34 FLRA 986, 990 (1990) (Hill Air Force Base). The Union has not shown that the award is deficient under any of these tests. In particular, the Union has not demonstrated that the letter accompanying the Agency's brief prejudiced its rights or that the letter resulted in prejudice or bias on the part of the Arbitrator. See, for example, Food and Drug Administration, Cincinnati District Office and American Federation of Government Employees, Local 3831, AFL-CIO, 34 FLRA 533, 535-36 (1990) (FDA).

Moreover, as noted above, the Arbitrator offered to disqualify himself so as to enable the parties to pursue the matter before another arbitrator. The Union declined the offer. As such, the Union may not now claim bias on the part of the Arbitrator. See Hill Air Force Base, 34 FLRA at 990; FDA, 34 FLRA at 535-36. Accordingly, this exception provides no basis for finding the award deficient.

V. Summary

The Union has not demonstrated that the award conflicts with 5 U.S.C. § 2301(b)(1) or (3), or section 7106(b)(3) of the Statute. The Union also has not shown that the award fails to draw its essence from the parties' agreement, that the Arbitrator denied it a fair hearing, or that the Arbitrator was biased. There is, therefore, no basis on which to find the award deficient under section 7122(a) of the Statute.

VI. Decision

The Union's exceptions are denied.

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

1. Article 22, Section e of the parties' agreement provides, in pertinent part:

The Training Committee's responsibilities shall be to:

(1) Consider the schools' professional training and development problems and explore potential solutions considering economical and efficient proposals and clearly identifying needs;

(2) Consider, propose, and establish priority on specific areas needing attention of the Administration;

(3) Serve as a body for recommending the--

(a) Implementation and/or revision of . . . actions which should improve the training program. . . .

(b) Specific training methods, courses or functions which can be identified as solving employee development needs and have a low cost to high benefit ratio to the School System, . . . .

(c) Resolution of similar or related issues submitted by the Superintendent.

Attachment to the Union's exceptions at 6.

2. Article 19, Section e of the parties' agreement provides that if "'all qualifications are equal, vacancies and/or promotions involving unit positions shall be filled from among unit employee applicants.'" Award at 15.

3. It appears from the record that, by offering the Union the option of declaring a "mis-arbitration," the Arbitrator was offering to disqualify himself and allow the parties to pursue the matter before another arbitrator.

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