43:0820(66)AR - - AFGE, National Council of Education Locals, Council 252, Local 2607 and Education - - 1991 FLRAdec AR - - v43 p820



[ v43 p820 ]
43:0820(66)AR
The decision of the Authority follows:


43 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF EDUCATION LOCALS

COUNCIL 252, LOCAL 2607

(Union)

and

U.S. DEPARTMENT OF EDUCATION

(Agency)

0-AR-2120

DECISION

December 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John Paul Simpkins 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 grievant filed a grievance which, among other things, sought a rescission of her downgrade from a GS-14 position to a GS-12 position and an accurate position description. The Arbitrator determined that the grievance was not arbitrable under the parties' collective bargaining agreement. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On February 24, 1987, the Agency notified the grievant, a Program Analyst GS-0345-14, that she would be downgraded to a Vocational Rehabilitation Program Specialist GS-0101-12, effective March 29, 1987, with grade and pay retention for 2 years. The downgrade followed a classification audit of several positions, including that of the grievant. On April 9, 1987, the grievant filed a position classification appeal with the Agency. In her appeal, the grievant stated that she had not served in her GS-14 position for 6 years because she had been assigned to various consecutive details during those years and contended that the duties described in her reclassified position did not reflect the work that she had been doing while on detail.

On May 4, 1987, the Agency returned the position classification appeal to the grievant. The Agency advised the grievant that "[a]lthough this is a classification appeal of an adverse classification action, the first issue in the complaint involves the question of a management determination of an assignment to a permanent position." Award at 15. The Agency stated that this issue concerned an administrative assignment that must be grieved through the Agency's administrative grievance procedure, Personnel Manual Instruction (PMI) 771-1. The Agency noted that filing such an appeal did not preclude the filing of a subsequent classification appeal of the position classification decision once the issue of official assignment was settled. The Agency returned the classification appeal to the grievant "with advice to resolve with management the question of official assignment of duties and responsibilities - informally if possible; through the grievance procedure if necessary." Id.

On June 10, 1987, the grievant filed a grievance under the parties' negotiated grievance procedure. The grievance alleged, in part, that the Agency had "illegally detailed" the grievant and that the grievant had not been properly compensated because she "was downgraded against the wrong position description." Id. at 3. As relief, the grievant sought, among other things, the rescission of her downgrade and an accurate position description for the audit review. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated the issues before him as:

Whether the grievance is arbitrable. If so, what is the appropriate remedy.

Id. at 9.

The Arbitrator found that the parties' collective bargaining agreement "bears directly upon the issue under consideration." Id. at 11. The Arbitrator noted that Section 37.02 of the parties' agreement excludes from the definition of "grievance" any grievance "to the extent that it is not separable from . . . or directly concerns and/or seeks relief with respect to[,]" among other things, "the classification of any position which does not result in the reduction in grade or pay of an employee." Id. The Arbitrator concluded that "it is plain from the [a]greement that a grievance which seeks relief from the classification of a position under circumstances where the affected employee has not been reduced in grade or pay is inappropriate and outside of the scope and intendment of a grievance cognizable under the Agreement." Id. at 11-12.

The Arbitrator found that "the evidence is clear that the grievant's grade and pay was not affected by the reclassification of her position." Id. at 13. The Arbitrator next addressed "whether the grievance directly concerns and/or seeks relief with respect to the classification of her position." Id. The Arbitrator found that, contrary to the Union's assertion, "there is no doubt that the objective of this grievance is to overturn the grievant's downgrade and restore her to the GS-14 grade in her position of record." Id. at 16.

The Arbitrator rejected the Union's reliance on 5 C.F.R. § 511.607, which states that issues concerning, among other things, the accuracy of position descriptions may be reviewed under a negotiated grievance procedure "'if applicable.'" Id., quoting 5 C.F.R. § 511.607. Noting that "the parties agreed that their negotiated grievance procedure would not be applicable for classification issues under circumstances applicable here," the Arbitrator found that "the grievance was[,] in effect, misfiled." Id. The Arbitrator stated that "[t]he only option available to review the classification questions raised by the grievance was the [Agency's] internal grievance procedure which is found in PMI 771-1." Id.

Accordingly, the Arbitrator determined that to the extent that the grievance "concerns and specifically seeks relief from the grade and classification to which the grievant was downgraded, it is not grievable or arbitrable pursuant to the [a]greement." Id. The Arbitrator further concluded:

Similarly, in view of the inseparability of the grievant's grade and classification from the matters the Union claims are at issue - namely her official assignment, correct position description and alleged illegal details - it must be found that the grievance is not arbitrable under Section 37.02(b) of the [a]greement. This being so, it is unnecessary to address the merits of other matters encompassed within the grievance as it would serve no useful purpose. The grievance is, therefore, dismissed.

Id.

III. Positions of the Parties

A. The Union

The Union argues that the Arbitrator's award is deficient because the Arbitrator incorrectly interpreted law, regulations, and the parties' collective bargaining agreement.

The Union contends that the Arbitrator erred when he stated that the only option available to review the classification question raised by the grievance was the Agency's internal grievance procedure found in PMI 771-1. Citing 5 C.F.R. § 511.607, the Union argues that disputes concerning the accuracy of position descriptions may be reviewed under negotiated grievance procedures. The Union asserts that the negotiated grievance procedure is the exclusive procedure for resolving grievances that fall within its coverage, and the parties' agreement "clearly provides for grieving concerns regarding the accuracy of position descriptions . . . ." Exceptions at 7.

The Union disputes the Arbitrator's finding that "the grievant's grade and classification are inseparable from the matters of the employee's official assignment, correct position description and alleged illegal details . . . ." Id. The Union acknowledges that "[t]here is no question that the grievant and the [U]nion were attempting to overturn the downgrade[,]" but contends that "the appropriate procedures [were used] to accomplish that end." Id. at 8. According to the Union, it properly first filed a classification appeal and then, "when instructed, the appropriate grievance was filed." Id. Noting that the grievance filed under the negotiated grievance procedure addressed broader issues than did the classification appeal, the Union contends that "[t]he essence of the grievance was to get management to provide an accurate position description so that a proper audit or classification appeal, which ever would have been appropriate[,] could be conducted." Id. at 8-9. Therefore, the Union argues that the grievance was properly filed under the parties' negotiated grievance procedure.

B. The Agency

The Agency asserts that: (1) the award is not contrary to any law, rule, or regulation; and (2) the Union's exceptions constitute nothing more than disagreement with the Arbitrator's factual findings and reasoning in interpreting the parties' agreement and are an attempt to relitigate the issues before the Authority.

The Agency contends that the Union has failed to demonstrate that the award does not draw its essence from the agreement. According to the Agency, the Arbitrator's "award turned on interpretation of the contract language that excludes grievances which are not separable from, which directly concern, or seek relief from classification decisions which do not result in reduction in grade or pay as evident in the facts of this case." Opposition at 2. Noting that the Arbitrator clearly found that the grievant was downgraded with the benefits of grade and pay retention and that "the object of the grievance was to overturn the downgrade," the Agency contends that the matter of position description accuracy was "not separable from the downgrading and classification issues found by the Arbitrator to constitute the essence of the grievance." Id. at 3. Inasmuch as the grievant "elected to raise issues ranging far beyond the accuracy of her position description in her grievance," the Agency asserts that the Arbitrator correctly found that the grievance was not arbitrable under the parties' agreement.

IV. Analysis and Conclusions

We construe the Union's contention that the Arbitrator failed to correctly interpret the parties' agreement as an argument that the award fails to draw its essence from the agreement. To establish that an award is deficient because it does not draw its essence from the collective bargaining agreement, the party making the allegation must demonstrate 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 purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, McClellan Air Force Base, California and International Federation of Professional and Technical Engineers, Local 220, 40 FLRA 968, 971 (1991). Under these tests, the Authority will not find that an award is deficient merely because a party disagrees with the arbitrator's interpretation of the agreement. Id.

Based on his interpretation of the parties' agreement, the Arbitrator concluded that the Union's grievance was not arbitrable under Section 37.02. The Arbitrator determined that the objective of the grievance was to overturn the grievant's downgrade and restore her position to a GS-14. The Arbitrator concluded that the grievance was not arbitrable because the matter of the grievant's grade and classification was inseparable from the matters that the Union claimed are at issue--the grievant's official assignment, correct position description, and allegedly illegal details.

The Union has failed to demonstrate that the Arbitrator's conclusion that, under the parties' agreement, the grievance was not arbitrable is irrational, unfounded, implausible, or evidences a manifest disregard for the agreement. Rather, the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the agreement, as well as an attempt to relitigate this issue before the Authority. Therefore, this contention provides no basis for finding the award deficient. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and Ameri