U.S. Department of the Army, Headquarters XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770 (Authority decision, June 20, 1990)

Final FLRA decision. The Authority denied exceptions to an arbitral award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. The arbitrator's interpretation of the agreement's official-time schedule remains in place.

Plain-English summary

AFGE Local 1770 argued that a Fort Bragg union officer who also served as a steward should receive the steward's official-time block in addition to the officer's allotted time. An arbitrator read the agreement's separate list of officers and stewards to exclude that extra block and denied the grievance. The union challenged his use of bargaining history, contract interpretation, and earlier impasse decisions. The Authority found that the union mainly disagreed with his reading of the agreement and had not shown a legal error, a central false fact, or an award divorced from the contract. It denied the exceptions.

Decision snapshot

• Authority: Review of arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; grievance denial upheld.
• Key point: The arbitrator's reading of separately listed official-time blocks survived review.

Full text (FLRA public release)

[ v36 p86 ]
36:0086(10)AR

The decision of the Authority follows:

36 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE
ARMY

HEADQUARTERS XVIII AIRBORNE
CORPS

FORT BRAGG, NORTH
CAROLINA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1770

(Union)

O-AR-1823

DECISION

June 20, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James P. Whyte. The Arbitrator ruled that the parties' collective bargaining agreement does not require management to grant to any union officer, who is also a steward, the official time provided for stewards in addition to the official time provided for officers.

The Union filed exceptions to the award under section 7122(a) of the Federal Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition to the exceptions.

We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The parties stipulated the following issue for resolution by the Arbitrator:

Does Section 5a, Article VI, provide Union Officers who were Stewards before being elected Officers an entitlement to 10 hours representational time per pay period as Stewards in addition to the weekly block of representational time for their Officer positions? If so, what is the remedy?

Arbitrator's Award at 1. According to the Arbitrator, Article VI, Section 5a of the parties' collective bargaining agreement, effective April 3, 1989, provides:

It is understood by the parties that reasonable time for the purposes listed above [Official Time/Union Representation] is established as follows:

President
28 hours per week

Executive Vice-President
20 hours per week

1st Vice-President
18 hours per week

2nd Vice-President
16 hours per week

Chief Steward
14 hours per week

All Stewards
10 hours per week

Id.

The Arbitrator denied the grievance. He ruled that Article VI, Section 5a does not require management to grant to any of the five listed officers, when they are also stewards, official time of 10 hours per week listed for "All Stewards" in addition to the official time provided to each officer. Id. at 4.

The Arbitrator noted that the Union's grievance was principally based on the allocation of 10 hours per week to "All Stewards." In the Union's view, because a vice-president, for example, may also be a steward, the vice-president should be allowed official time for duties as an officer, as well as additional official time for activities as a steward. However, the Arbitrator concluded that the bargaining history did not support the Union's position. Id. at 3. The Arbitrator also concluded that the use of the term "All Stewards" could not be construed to include officers who were also stewards. The Arbitrator found the contract interpretation principle of "expressio unius est exclusio alterius," which he characterized as expression of one thing is the exclusion of another, to be applicable. In the Arbitrator's view, by listing officers by title, including the chief steward, and stewards only as stewards, the allocated official times of officers excluded additional official time for officers who were also stewards. Id. at 4.

The Arbitrator also noted that a decision of the Federal Service Impasses Panel (FSIP) in 1985 involving the same parties approved a reduction in official time for officers and another FSIP decision in 1988 refused to approve an increase in official time for certain vice-presidents. The Arbitrator stated that granting the grievance would significantly undermine these decisions. Id.

III. Exceptions

The Union contends that the award: (1) is inconsistent with Federal law; (2) is based on a nonfact; and (3) fails to draw its essence from the collective bargaining agreement.

The Union contends that, on the basis of the testimony of the Union's chief negotiator, the Arbitrator made an error of law in finding that the bargaining history did not support the Union's position. The Union states that its chief negotiator testified that he understood that officers who were also stewards would receive steward official time in addition to officer official time when he accepted the Agency's proposed language change to "All Stewards." The Union argues that under contract law its understanding of the language change should prevail because the Agency did not clearly express the intended meaning to exclude granting officers who were also stewards official time and the Union was misled.

The Union contends that the Arbitrator's application of the principle of "expressio unius est exclusio alterius" is based on a nonfact because the Union did not agree to exclude granting steward official time to officers who were also stewards. The Union further contends that the Arbitrator based his award on the finding that granting the grievance would significantly undermine two FSIP decisions. The Union maintains that this finding is premised on the FSIP decisions preceding agreement on the "All Stewards" language. The Union asserts that the premise is a nonfact because the disputed language was agreed to before the FSIP decisions.

In contending that the award does not draw its essence from the collective bargaining agreement, the Union argues that by assuming that the "All Stewards" language could not have included stewards who were also officers, the Arbitrator changed the parties' agreement.

IV. Analysis and Conclusions

We conclude that the Union fails to establish that the award: (1) is contrary to law; (2) is based on a nonfact; or (3) fails to draw its essence from the parties' collective bargaining agreement.

The Arbitrator ruled that Article VI, Section 5a does not require management to grant to any of the five listed officers official time of 10 hours per week listed for "All Stewards" in addition to the official time provided to each officer. The Union in its exceptions is simply disagreeing with the Arbitrator's interpretation of Article VI, Section 5a of the parties' collective bargaining agreement. The exceptions, by contending for various reasons that the Arbitrator's interpretation of the agreement is incorrect, provide no basis for finding the award deficient. See, for example, American Federation of Government Employees, AFL-CIO, New York-New Jersey Council of District Office Locals, Social Security Administration and Department of Health and Human Services, Social Security Administration District Office Operations, 7 FLRA 413 (1981) (exceptions to an award interpreting the official time provisions of the parties' agreement constituted nothing more than disagreement with the arbitrator's interpretation of the agreement and provided no basis for finding the award deficient).

Specifically, the Union's arguments that: (1) under contract law its understanding of the language change should prevail; (2) it did not agree to exclude granting steward official time to officers who were also stewards; and (3) the Arbitrator changed the agreement, constitute nothing more than disagreement with the Arbitrator's interpretation and application of Article VI, Section 5a of the collective bargaining agreement. The Union fails to establish by such arguments that the award is contrary to law, based on a nonfact, or does not draw its essence from the collective bargaining agreement. See, for example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573 (1990) (simply disagreeing with an arbitrator's interpretation and application of a collective bargaining agreement provides no basis for finding that an award fails to draw its essence from the collective bargaining agreement under any of the tests recognized by the Authority or for finding that the award is otherwise deficient under the Statute); U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Gainesville, Florida and American Federation of Government Employees, Local 2779, 34 FLRA 475 (1990) (in order to establish that an award is based on a nonfact, it must be demonstrated that the central fact underlying the award is clearly erroneous but for which a different result would have been reached; a contention that constitutes nothing more than disagreement with the arbitrator's interpretation and application of the collective bargaining agreement provides no basis for finding that the award is based on a nonfact).

The Union's argument that the award is based on a nonfact because the Arbitrator premised the award on the misapprehension that the FSIP decisions preceded agreement on the "All Stewards" language also does not establish that the award is based on a nonfact. Without deciding whether the Arbitrator's consideration of the FSIP decisions was clearly erroneous as claimed by the Union, we find that the Arbitrator's consideration was not a central fact underlying the award.

The Arbitrator denied the grievance because he ruled that the bargaining history failed to support the Union's position and that the "All Stewards" language could not be construed to include officers who were also stewards. In view of these findings and conclusions of the Arbitrator in denying the grievance, we conclude that the Union fails to demonstrate that the Arbitrator's consideration of the FSIP decisions was a central fact underlying the award such that the Arbitrator would have reached a different result if the Arbitrator's consideration had not been erroneous as alleged. See, for example, U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and American Federation of Government Employees, Local 48, Bremerton Metal Trades Council, 35 FLRA 340 (1990) (union failed to establish that the award was based on a nonfact because none of the facts considered erroneous by the union was a central fact underlying the award but for which a different result would have been reached by the arbitrator).

Accordingly, we will deny the exceptions.

V. Decision

The Union's exceptions are denied.

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