43:1067(87)AR - - Commerce, NTIS and NFFE Local 1627 - - 1992 FLRAdec AR - - v43 p1067



[ v43 p1067 ]
43:1067(87)AR
The decision of the Authority follows:


43 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF COMMERCE

NATIONAL TECHNICAL INFORMATION SERVICE

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1627

(Union)

0-AR-2180

DECISION

January 17, 1992

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 Roger P. Kaplan 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 exception.

The Arbitrator denied a grievance contesting the Agency's decision to select an employee for a position to which the employee had been temporarily appointed on the ground that the grievance was untimely filed.

For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

In March 1989, the Agency temporarily appointed an individual to a position for a period not to exceed 1 year and in March 1990, the Agency extended the appointment for an additional year. On August 28, 1990, the Agency selected the individual for the position on a permanent basis. The Union filed a grievance over the matter and, when the grievance was not resolved, it was submitted to arbitration. As relevant here, the issue before the Arbitrator was:

Whether the grievance dated September 7, 1990, is timely filed under Article 16, Section 6 of the Collective Bargaining Agreement?

Award at 1.

The Arbitrator noted that, under the parties' collective bargaining agreement, a grievance must "be submitted fifteen (15) days after the occurrence or fifteen (15) days after learning of the matter." Id. at 6. The Arbitrator found, based on the Union's statement at the arbitration hearing "that it was not contesting the permanent . . . appointment made on August 28, 1990[,]" that the grievance concerned only the two temporary appointments. Id. at 5. According to the Arbitrator, under the parties' agreement "[i]t was incumbent upon the Union to contest the alleged irregularities of the temporary appointment when they were made." Id. The Arbitrator determined that although the Union was aware of each temporary appointment, it did not file a grievance within 15 days of either appointment. Consequently, the Arbitrator denied the grievance as untimely filed.

III. The Union's Exception

The Union contends that the award "does not draw its essence from the contract." Exception at 1. The Union asserts that because the bargaining unit does not include temporary employees, a grievance contesting the temporary appointments "would not have been grievable or arbitrable under the . . . agreement." Id. at 6. The Union argues that "[t]he matter only became a legitimate concern of the Union when [the individual] was selected for the permanent . . . position" and asserts that the Authority should "overturn the Award and return the case to the Arbitrator for consideration on the merits." Id. at 6-7.

IV. The Agency's Opposition

The Agency argues that the Union's exception constitutes mere disagreement with the Arbitrator's findings and does not demonstrate that the award is deficient.

V. Analysis and Conclusions

To demonstrate that an award fails to draw its essence from an agreement, a party must show 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; and (3) evidences a manifest disregard for the interpretation of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, National Association of Aircraft Examiners, Local 1 and U.S. Department of the Navy, Naval Aviation Depot, Alameda, California, 43 FLRA 268, 270 (1991).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of the tests set forth above. We note that the Union does not dispute the Arbitrator's interpretation of the portion of the parties' agreement gov