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57 FLRA No. 121
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1698
(Union)
and
U.S. DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT
PHILADELPHIA, PENNSYLVANIA
(Agency)
0-AR-3431
_____
DECISION
December 7, 2001
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Peter R. Myers filed by the Union under § 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 found that the Agency properly implemented a reduction in force (RIF) and denied the Union's grievance. For the reasons that follow, we conclude that the Union has not demonstrated that the Arbitrator's award is deficient, and we deny the Union's exceptions.
II. Background and Arbitration Award
As part of a nationwide transfer of base operating support (BOS) functions, some employees were reassigned to a new competitive area. Subsequently, as the result of an A-76 study, a RIF was conducted among employees remaining in the prior competitive area, and several employees were separated from employment. [n1] The Union filed a grievance that, ultimately, was submitted to arbitration, where the Arbitrator set forth the following issue: "Whether the Agency violated applicable rules, laws, regulations, statutes, and the parties' collective bargaining agreement in connection with [the] April 1999 reduction-in-force at the Naval Inventory Control Point - Philadelphia? If so, what is the appropriate remedy?" Award at 2.
The Union argued before the Arbitrator that the Agency's actions violated law, regulation, and the parties' collective bargaining agreement. Among other things, the Union claimed that the Agency denied certain employees the right to transfer into the continuing competitive area, in violation of 5 C.F.R. § 351.302, and that the Agency erred when it "did not formulate a retention register, as required by 5 C.F.R. 351" to identify employees to be transferred. Id. at 9. The Union also argued that the transfer of function harmed certain employees by unjustly subjecting them to the subsequent RIF. In this regard, the Union maintained that there were "conflicting allegations of material fact regarding the number of employees . . . adversely affected by the RIF." Id. at 10.
The Arbitrator rejected the Union's claims. In particular, the Arbitrator concluded that the Union had not demonstrated that the reassignment deprived employees of any rights during the RIF. The Arbitrator found that the Agency's loss of work and funds as a result of the A-76 study was a "bona fide, valid reason for conducting the RIF" and that the Agency properly implemented the RIF. Id. at 16-17. The Arbitrator further concluded that the Union had failed to demonstrate that any employees were harmed during the RIF as a result of the transfer of function. Consequently, the Arbitrator denied the Union's grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the award is contrary to law. In this regard, the Union claims that, prior to conducting the RIF, the Agency should have transferred all employees associated with the BOS function to the new competitive area. The Union relies on a Department of the Navy memorandum concerning the transfer of function stating that "[a]ll BOS funding, real property and appropriate billets . . . will be transferred . . . ." Exceptions at 5. According to the Union, the Agency's failure to transfer all employees violated 5 C.F.R. § 351.302. [n2] The Union also argues that the Agency should have identified positions to be transferred through a retention register -- Method Two under 5 C.F.R. § 351.303 -- rather than Method One, which the Agency used. According to the Union, had the Agency used Method Two, certain employees who were [ v57 p631 ] separated from employment during the RIF would have been given the opportunity to transfer to the new competitive area. Therefore, the Union claims that the award is contrary to 5 C.F.R. § 351.303. [n3] The Union also asserts, in this connection, that "the A-76 of the BOS functions should have either been halted and/or transferred . . . ." Exceptions at 7.
The Union also maintains that the award is "implausible, irrational or in manifest disregard" of Article II of the parties' agreement. Id. at 4. Finally, the Union disputes the Arbitrator's finding that the Union failed to demonstrate that any employees were harmed during the RIF as a result of the transfer of function.
B. Agency's Opposition
The Agency argues that the Union has failed to show that the Agency acted improperly in conducting the RIF. Also, according to the Agency, the Union has not alleged with specificity how the award fails to draw its essence from the parties' agreement. The Agency argues that the Union has not raised any issues that were not disputed at arbitration. [n4]
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law
When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Under 5 C.F.R. § 351.302(a), when a transfer of function occurs in connection with a RIF, an agency must first identify employees to be transferred -- along with the function -- to the new competitive area. Two methods for identifying such employees are provided in § 351.303. Method One, which the Agency used in this case, identifies employees who perform the transferring function at least half of their work time, or whose grade-controlling duties consist of the transferring function. See 5 C.F.R. § 351.303(c). Method Two, which the Union claims should have been used, requires an agency to use a retention register. See 5 C.F.R. § § 351.303(d). After employees have been identified, then "each competing employee in a position identified . . . shall be transferred . . . ." 5 C.F.R. § 351.302(a).
The Union has not demonstrated that the Agency was required to transfer all affected employees to the new competitive area prior to the RIF. In this regard, the Department of Navy memorandum relied upon by the Union does not specify that particular employees were to be transferred but states only that "appropriate billets" would be transferred. Exceptions at 5. Moreover, the regulations relied upon by the Union provide two methods for identifying employees to be transferred during a transfer of function, and neither of those methods requires transfer of all affected employees. Similarly, [ v57 p632 ] the Union has not demonstrated that the function of employees who were separated in the RIF was transferred, within the meaning of 5 C.F.R. § 351.302(c), such that those employees' rights were violated when they were not transferred.
The Union also has not demonstrated that the Agency was required to use Method Two to identify employees for transfer. As plainly worded, the regulation provides that Method Two is applicable only when Method One does not apply. See 5 C.F.R. § 351.303(b), (d). It is undisputed that the Agency identified several employees for transfer using Method One, and the Union has not established that Method One was inapplicable to the employees identified by the Agency. Moreover, there is no assertion that the number of employees identified by the Agency through Method One was insufficient, such that the Agency was required to use Method Two to identify additional employees for transfer. Accordingly, we reject the Union's argument that the Agency should have used Method Two.
Based on the foregoing, the Union has not demonstrated that the award violates § 351.302 or § 351.303. Apart from these alleged violations, the Union has provided no other basis to conclude that "the A-76 of the BOS functions should have been . . . halted." Exceptions at 7. Consequently, the Union's assertion in this regard also does not demonstrate that the award is deficient. Accordingly, we deny the Union's exception. See Prof'l Airways Sys. Specialists, Dist. No. 1, MEBA/NMU (AFL-CIO), 48 FLRA 764, 768-69 (1993).
B. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
We construe the Union's assertion that the award is "implausible, irrational or in manifest disregard" of Article II of the parties' agreement as a contention that the award fails to draw its essence from the parties' collective bargaining agreement. Exceptions at 4. In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Article II of the parties' agreement provides that the parties will be governed by laws and government-wide regulations. See Award at 2-3. The Union has not demonstrated that the award conflicts with this requirement. Accordingly, the award does not fail to draw its essence from the parties' agreement, and we deny this exception. See United States Dep't of Agric., Farm Serv. Agency, Okla. State Office, Stillwater, Okla., 56 FLRA 679, 681 (2000).
C. The Award Is Not Based On a Nonfact
The Union disputes the Arbitrator's finding that the Union failed to demonstrate that any employees were harmed as a result of the transfer of function. We construe this as an assertion that the award is based on a nonfact. To establish that an award is deficient on this ground, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.
At the hearing, the Union contended that there were "conflicting allegations of material fact regarding the number of employees . . . adversely affected by the RIF." Award at 10. Moreover, the Union entered into evidence documentation to demonstrate that certain employees were harmed during the RIF as a result of the transfer of function. The Arbitrator considered all of the testimony and record evidence and concluded that the evidence was insufficient to establish that any employees were indeed harmed. As the Arbitrator's determination resolved a matter disputed at arbitration, the Union's argument provides no basis for the Authority to find the award deficient. Accordingly, we deny the Union's exception.
V. Decision
The Union's exceptions are denied.
Footnote # 1 for 57 FLRA No. 121
An A-76 Study determines whether work can be performed more efficiently by the Agency or an outside contractor. See OMB Circular A-76 Supplemental Handbook, Revised (1998).
Footnote # 2 for 57 FLRA No. 121
In relevant part, 5 C.F.R. § 351.302 provides:
(a) Before a reduction in force is made in connection with the transfer of any or all of the functions of a competitive area to another continuing competitive area, each competing employee in a position identified with the transferring function or functions shall be transferred to the continuing competitive area . . . .
. . . .
(c) Regardless of an employee's personal preference, an employee has no right to transfer with his or her function, unless the alternative in the competitive area losing the function is separation or demotion.
Footnote # 3 for 57 FLRA No. 121
In relevant part, 5 C.F.R. § 351.303 provides:
(b) Identification Method One must be used to identify each position to which it is applicable. Identification Method Two is used only to identify positions to which Identification Method One is not applicable.
(c) Under Identification Method One, a competing employee is identified with a transferring function if --
(1) The employee performs the function during at least half of his or her work time; or
(2) Regardless of the amount of time the employee performs the function . . . the function . . . includes the duties controlling his or her grade or rate of pay.. . . .
(d) Identification Method Two is applicable to employees who perform the function during less than half of their work time and are not otherwise covered by Identification Method One . . . . To determine which employees are identified for transfer, the losing competitive area must establish a retention register . . . .
Footnote # 4 for 57 FLRA No. 121
In addition to these arguments, the Agency contends that the Union's exceptions are "not properly before the Authority" and address issues "that should have been raised at the arbitration or in their post hearing brief." Opposition at 4. However, the Agency also contends that the Union "does not raise any issues that were not previously argued and decided by the Arbitrator." Id. at 2. The record demonstrates that the arguments raised in the Union's exceptions were raised below, and the Union's arguments are properly before the Authority. Therefore, insofar as the Agency objects to consideration of the arguments, that objection is denied.