34:0591(100)AR - - Illinois Air NG, 182nd Tactical Air Support Group and ACT, Illinois Chapter 34 - - 1990 FLRAdec AR - - v34 p591
[ v34 p591 ]
The decision of the Authority follows:
34 FLRA No. 100
FEDERAL LABOR RELATIONS AUTHORITY
ILLINOIS AIR NATIONAL GUARD
182ND TACTICAL AIR SUPPORT GROUP
THE ASSOCIATION OF CIVILIAN TECHNICIANS
ILLINOIS CHAPTER 34
January 26, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Gerald Cohen filed by The Association of Civilian Technicians, Illinois Chapter 34 (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 Illinois Air National Guard, 182nd Tactical Air Support Group (the Agency) filed an opposition to the exception.
The Arbitrator found that the grievance was not arbitrable because it involved the filling of a supervisory position, a matter which the Arbitrator found was excluded from coverage under the parties' collective bargaining agreement. The Union argues that the Arbitrator's award is deficient because it does not draw its essence from the parties' collective bargaining agreement.
For the reasons set forth below, we find that the Union has failed to demonstrate that the Arbitrator's award is deficient under section 7122(a). Therefore, we deny the Union's exception.
II. Background and Arbitrator's Award
The Agency posted a vacancy announcement for the position of Fabrication Foreman. The area of consideration for this supervisory position was the bargaining unit and the military. A Master Sergeant was selected. The Union grieved the manner in which the Agency filled the position. When the matter was not resolved, the parties submitted the grievance to arbitration.
The issues, as framed by the Arbitrator, were whether the grievance was arbitrable, and if so, whether the Agency violated the parties' agreement by the manner in which it filled the position. The Arbitrator concluded that the grievance was not arbitrable.
The Arbitrator noted that the evidence, as well as a stipulation between the parties, indicated that the Fabrication Foreman position was supervisory. Award at 5. The Arbitrator found that Article 2 of the parties' collective bargaining agreement excluded supervisors from coverage. The Arbitrator also noted that, according to Article 10 of the parties' agreement, the Illinois Technician Personnel Plan 335 (TPPlan 335) only covered filling vacancies within the bargaining unit. Id. at 6. The Arbitrator stated that "TPPlan 335 is not applicable to the position of Fabrication Foreman since the position is not 'within the bargaining unit[.]'" Id. According to the Arbitrator, the method used by the Agency to fill the Fabrication Foreman position did not determine whether the position was a bargaining unit position and subject to contractual requirements. Because the grievance concerned filling a supervisory position, the Arbitrator concluded that it was not arbitrable under the parties' agreement. Id. at 5.
III. Union's Exception
The Union argues that the Arbitrator's award does not draw its essence from the parties' collective bargaining agreement and cannot rationally be derived from the agreement. Specifically, the Union asserts that the Arbitrator did not rely on agreement provisions which the Union argued were applicable. Union's Exception at 1.
The Union concedes that Article 10 applies only to vacancies in bargaining unit positions. However, the Union asserts that the Arbitrator should have considered Articles 1 and 12. According to the Union, Article 1 incorporates Agency regulations, including the TPPlan 335, into the agreement. The Union argues that TPPlan 335 applies to all technician positions "whether or not they are supervisory or within the bargaining unit[,]" and that, therefore, Article 1 requires that the Agency follow TPPlan 335 in filling all technician positions whether or not they are in the bargaining unit. Union's Exceptions at 3-5. Additionally, the Union argues that the Arbitrator failed to consider that Article 12 provides for a broad scope grievance procedure. Under Article 12, the Union argues that disputes concerning management's application of Agency regulations, such as TPPlan 335, are arbitrable. Id. at 5. The Union argues that by failing to consider these articles, the Arbitrator ignored the plain language of the agreement.
IV. Agency's Opposition
The Agency concedes that filling the Fabrication Foreman position was subject to the TPPlan 335. However, the Agency asserts that this error in the Arbitrator's review of the case is not relevant to his ruling on the arbitrability of the grievance. Agency's Opposition at 1. The Agency argues that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement. Therefore, the Agency requests that the Authority dismiss the Union's exception.
V. Analysis and Conclusions
We conclude that the Union has not demonstrated that the Arbitrator's award fails to draw its essence from the collective bargaining agreement.
In order for an award to be found deficient as failing to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See General Services Administration, Region 4, Kennedy Space Center, Florida and American Federation of Government Employees, Council 236, 32 FLRA 1293, 1297 (1988) (GSA, Region 4).
The Union argues that the award does not draw its essence from the agreement because the Arbitrator did not consider Articles 1 and 12. The fact that the opinion accompanying an award does not mention specific provisions of the agreement which a union relied on does not establish that the arbitrator did not consider those provisions or provide a basis for finding the award deficient. U.S. Army Plant Representative Office, Bell Helicopter Textron, Fort Worth, Texas and Local 2475, American Federation of Government Employees, 29 FLRA 1329 (1987); U.S. Bureau of Prisons and American Federation of Government Employees, AFL-CIO, Local 3696, 10 FLRA 51 (1982).
The Union argues that Local R-1-185, National Association of Government Employees and The Adjutant General of the State of Connecticut, 25 FLRA 509 (1987) is applicable and would require that the award be set aside. In The Adjutant General of the State of Connecticut, the Authority upheld the arbitrator's finding of arbitrability on a matter which involved the filling of a supervisory General Foreman position. The Authority held that in the absence of any specific exclusion in the agreement, a grievance concerning a violation of an agency regulation in the selection process is a grievance within the meaning of section 7103(a)(9) of the Statute, and is arbitrable under negotiated grievance procedures.
The case before us is distinguishable from The Adjutant General of the State of Connecticut. Here, the Arbitrator found that supervisory positions were specifically excluded from the parties' agreement. Consequently, the Arbitrator concluded that filling a supervisory position was not arbitrable under the grievance procedure. In The Adjutant General of the State of Connecticut, the arbitrator found that the filling of a supervisory position was covered by the parties' agreement in the absence of any provision specifically excluding the matter from the grievance arbitration process. Therefore, the arbitrator in that case found that the grievance was arbitrable.
We conclude that the Union has failed to demonstrate that the Arbitrator's award fails to draw its essence from the agreement under any of the tests described in GSA, Region 4. Instead, the exception merely constitutes disagreement with the