38:0356(38)AR - - VA, Regional Office, Chicago, IL and AFGE, National VA Council, Local 1765 - - 1990 FLRAdec AR - - v38 p356



[ v38 p356 ]
38:0356(38)AR
The decision of the Authority follows:


38 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

REGIONAL OFFICE

CHICAGO, ILLINOIS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL VETERANS ADMINISTRATION COUNCIL

LOCAL 1765

(Union)

0-AR-1946

DECISION

November 26, 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 Milton T. Edelman 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 filed an opposition to the Union's exceptions.

The Union filed a grievance alleging that the Agency violated the parties' agreement when it imposed a limit on the number of candidates an evaluation panel had placed on a best qualified list and overruled the panel's determination that there was a "meaningful break" between the candidates. Award at 1. The Arbitrator denied the grievance.

For the following reasons we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency convened a panel to evaluate and rank applicants for four Adjudication Clerk vacancies. The panel found that a "meaningful break" existed in the listing of ranked candidates and recommended 43 of the 45 applicants for the best qualified list. Award at 2. The Agency found that there were too many candidates, and reduced the list to 15 candidates. The Union filed a grievance asserting that "[t]here is no provision in the Master Agreement for the Personnel Officer (or anyone else) to overrule the panel members as to whether or not a meaningful break exists or whether or not there are too many candidates." Id. at 3. According to the Union, the Agency's action violated Article 34, section 13 of the parties' agreement, which provides, in pertinent part:

Section 13 - Determining the Best Qualified List for Referral

A. First Area of Promotion Consideration.

1. The evaluation panel will review the listing of ranked promotion candidates to determine whether a meaningful break is present. The meaningful break is where:

a. The lowest ranking candidate above the break should be able to perform the job with substantially equal success as all candidates with higher scores, and

b. The highest ranking candidate below the break should not be able to perform with substantially equal success as those above the break.

2. Promotion candidates above the break will be placed on the best qualified list for referral. If there is no break and/or there are too many candidates above the break, the six (6) highest ranking candidates will constitute the best qualified list and be referred in order of their entry on duty date at the facility.

Id. at 3 (quoting parties' agreement).

When the grievance remained unresolved, the matter was submitted to arbitration on the following issue:

If management deems a panel's decision regarding a meaningful break to be improper, or if there are too many candidates above the break, does management have the right to impose a break?

Id. at 1.

The Arbitrator found that Article 34, section 13(A) was silent on who decides how many candidates are too many, but that the Section did "not deny management the right to decide . . . ." Award at 4. Accordingly, the Arbitrator concluded that the Agency retained the right to impose a limit on the number of certified candidates and denied the grievance. To support his conclusion, the Arbitrator found that an Agency regulation (MP-5, Part 1, Chapter 335, Change 4 Section 10.c.) states that "panel members are official representatives of management" in performing their functions. Id. The Arbitrator also noted that the regulation provides that "'an administrative limit' may be necessary if too many candidates are certified." Id. The Arbitrator concluded that "[a]n administrative limit could only be set by management." Id. Finally, the Arbitrator found that the Union had not established evidence of a binding past practice that previous promotion panels had referred large numbers of candidates without interference from management. Id. at 6. As his award, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union's Exceptions

The Union argues that "the Award is based on non-fact and it does not draw its essence from the collective bargaining agreement." Exception at 1. The Union also asserts that the Arbitrator "modified the expressed language of the Agreement [without] the authority of the parties to the Agreement." Id.

In support of its contentions, the Union maintains that the parties' agreement gives the evaluation panel the responsibility to determine the meaningful break. Id. Further, the Union contends that the Arbitrator erred in finding that the Agency regulation on "administrative limit" was controlling. According to the Union, the parties' agreement requires that "where Agency regulation conflicts with this Agreement and/or a supplemental agreement, the Agreement shall govern." Id.

B. The Agency's Opposition

The Agency states that the Union "does not attempt to explain" its position that the award is based on nonfact and does not draw its essence from the collective bargaining agreement. Opposition at 3. The Agency asserts that the Arbitrator's "rational, well[-]reasoned decision [was] based on the facts presented and the existing contract." Id. The Agency asserts that "Article 34, Section 13 does not declare whether the evaluation panel decides how many candidates are too many, or whether that function rests with someone else." Id.

IV. Analysis and Conclusions

A. The Union Has Not Demonstrated That the Award Is Based on Nonfact

In order for an award to be deficient under the Statute because it 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 by the Arbitrator. See U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 867 (1990) (Dependents Schools).

The Union claims that the award "is based on non-fact" because the Arbitrator's conclusion that the agreement was "silent" on who has the responsibility of determining a meaningful break is erroneous. Exceptions at 1. The Union asserts that "[t]he Master agreement is clear who will determine where the meaningful break is (Art 34 Sec 13.A.1). It is the responsibility of the evaluation panel." Id.

As an initial matter, it appears that the Union has misread the award. The Arbitrator found that the agreement was silent on the issue of "whether the evaluation panel decides how many candidates are too many, or whether that function rests with someone else." Award at 4. Thus, contrary to the Union's assertion, the Arbitrator's finding that the agreement is silent did not relate to the question of who determines the meaningful break initially. Id.

Moreover, even assuming that the Arbitrator's interpretation of the agreement constitutes a central fact, the Union has not shown that it is clearly erroneous. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's findings and conclusions and is an attempt to relitigate the merits of the grievance. Accordingly, the exception provides no basis for finding the award deficient. See Dependents Schools, 36 FLRA at 867-68.

B. The Union Has Not Demonstrated That the Award Fails To Draw Its Essence from the Agreement

In order for an award to be found deficient on the ground that it does not 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 the 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 U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990).

The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator rejected the Union's contention that the agreement gives the panel the right to decide how many candidates are too many and specifically found that "[w]ith the Master Agreement silent we must look elsewhere for an answer." Award at 4. Nothing in the plain wording of the parties' agreement or the Union's argument demonstrates that the award is implausible, irrational, or unconnected to the wording and purpose of the agreement. The question of interpretation of the collective bargaining agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990). See also Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987).

Finally, we reject the Union's assertion that the award is contrary to the agreement because the Arbitrator incorrectly held that the Agency regulation was controlling over the parties' agreement. The Union argues that under the master agreement, any Agency regulation which conflicts with the agreement is not controlling. As noted previously, however, the Arbitrator examined the Agency's regulation because he found that the parties' agreement was silent with respect to the issue before him. There is, therefore, no basis on which to conclude that the Arbitrator improperly found that the regulation was controlling over the agreement. See U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) where we held that provisions of a collective bargaining agreement take precedence over agency rules and regulations with respect to matters to which they both apply. However, where an award conflicts with agency rules and regulations, such conflict will provide a