44:1015(82)AR - - Defense Logistics Agency and AFGE Local 1546 - - 1992 FLRAdec AR - - v44 p1015

[ v44 p1015 ]
The decision of the Authority follows:

44 FLRA No. 82







LOCAL 1546




April 29, 1992

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 Gerald A. Brown filed by the Agency 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 Union did not file an opposition to the Agency's exceptions.

The issue before the Arbitrator was whether a grievance, which alleged that three unit employees were not given fair and equal treatment with respect to permanent promotions to the GS-12 level, was arbitrable under the parties' supplemental and master collective bargaining agreements. The Arbitrator determined that the grievance was both filed timely and arbitrable under the parties' agreements.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient.

II. Background and Arbitrator's Award

The Agency and the Union are parties to a master collective bargaining agreement (MA) and a local supplemental agreement (SA) covering the employees involved in this case. The SA "became a supplement to the [MA] on June 20, 1990, and remained applicable only to the extent that it did 'not conflict with the [MA].'" Award at 1. The employees are permanent employees whose jobs had been classified at the GS-11 level prior to 1984. In June 1984, the employees' duties and responsibilities were increased. Thereafter, their jobs were classified at the GS-12 level, "but unlike some other employees, they were given temporary rather than permanent promotions to GS-12." Id. at 2. In June 1990, the Agency consolidated some of its facilities and the consolidation affected the employees' duties. However, the employees' temporary promotions were extended to April 30, 1991, "while other employees in similar situations were given permanent promotions." Id. at 3. On May 1, 1991, after 7 years of service in the GS-12 jobs and "after being led to believe that the promotions would be made permanent, the three employees were reduced in grade to GS-11." Id. at 2.

Thereafter, the Union filed a grievance which alleged that the Agency violated Article XXVIII, Section 1 of the SA by "not giving [the employees] fair and equal treatment in recognizing [their] GS-12 grades as being permanent[.]" Exceptions, Attachment B, Jt. Exh. 3 at 3. Article XXVIII, Section 1 provides, in part, that "[t]he [p]arties desire that employees be treated fairly and equitably, and those who feel they have not been so treated have the right to present their grievance as provided for in this Article without interference." Exceptions, Attachment A.

The Agency denied the grievance on the grounds that it: (1) was not filed timely; and (2) concerned the termination of temporary promotions, a subject matter that is excluded from the grievance procedure under Article 36, Section 4 of the MA. Article 36, Section 4.G of the MA states that "[t]ermination[s] of temporary promotion[s]" are excluded from the grievance procedure. Id. The Union disagreed with the Agency's position and argued that the grievance "had always been about fair and equitable treatment" under Article XXVIII, Section 1 of the SA. Award at 3. The grievance was not resolved and was submitted to arbitration.

Pursuant to Article XXIX, Section 7 of the SA, which sets forth procedures for resolving grievability or arbitrability issues, the Agency raised the question of whether the grievance was grievable or arbitrable. In accordance with this provision, the parties submitted their written positions and joint exhibits to the Arbitrator, and requested him to issue a written decision on whether the matter was grievable or arbitrable.

Before the Arbitrator, the Agency maintained its position that the grievance was not timely and was not grievable or arbitrable under Article 36 of the MA. The Agency further asserted that if the grievants were permitted to reach excludable items by labeling them "'inequitable[,]'" the supplemental and master agreements would be rendered meaningless. Id. The Agency argued that the phrase "fair and equitable" in Article XXVIII, Section 1 of the SA "'is only meant to be a statement of the mutual, general intent of the parties to ensure that employees are treated fairly. The specific . . . action of management is what is reviewed via the grievance procedure.'" Id. The Union disputed the Agency's contentions and argued that the issue raised by the grievance "'has consistently been that when comparing the career opportunities of the grievants during a seven year period under similar circumstances as their coworkers, the grievants were treated unfairly and [i]nequitably when their coworkers['] positions were converted to career status while the grievants['] positions were not.'" Id. at 4.

The Arbitrator found that the grievance was filed timely. The Arbitrator stated that the grievants' "demotions became effective on May 1, 1991," and the grievance, which was filed within 14 days of that date, was filed "timely" under the parties' agreements. Id. In so finding, the Arbitrator noted the grievants' contentions that they "were repeatedly given reasons to believe that their promotions would be made permanent[.]" Id. The Arbitrator also noted the grievants' contention that they were told in January 1991, that "there was no room for [them] in the current directorate and then, just one week after" the temporary promotions expired, three permanent GS-12 positions were announced. Id. at 5.

The Arbitrator next addressed the arbitrability issue. Quoting United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582-83 (1960), the Arbitrator stated that the Supreme Court had held that a party could not "'be required to submit to arbitration any dispute which he has not agreed [so] to submit[,]'" but added that arbitration "'should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible [of] an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" Id. (footnote omitted). Applying this rationale to the instant case, the Arbitrator stated that the "two contract provisions [in dispute] can seem inconsistent with each other to some extent. However, the exclusion of terminations of temporary promotions does not eliminate grievances for inequitable treatment." Id. The Arbitrator stated that "[l]abeling a position a temporary promotion for seven years would not justify discriminatory treatment of long[-]time civil service employees." Id. Therefore, the Arbitrator concluded, based on the record, that the grievance was arbitrable under Article XXVIII, Section 1 of the SA.

III. Agency's Exceptions

The Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency asserts that the Arbitrator's award "cannot be derived from the [a]greement nor does it represent a plausible interpretation of the [a]greement." Exceptions at 4. According to the Agency, the Arbitrator "characterized the grievance as the termination of temporary promotions and later found the grievance grievable without explaining how this was possible where the [parties' a]greement specifically excludes such grievances." Id. The Agency asserts that the Arbitrator's statement that the "'exclusion of terminations of temporary promotions does not eliminate grievances for inequitable treatment'" is "obviously inconsistent with the [parties' MA]." Id. (quoting Award at 5). The Agency also contends that the Arbitrator's finding that the grievance was timely further demonstrates that the Arbitrator's arbitrability determination is inconsistent with the parties' MA. The Agency asserts that if the Arbitrator found that the grievance was timely based on the date of the termination of the promotions, it follows that the matter being grieved was the termination of the temporary promotions.

The Agency also contends that the award is inconsistent with Office of Personnel Management regulation 5 C.F.R. º 335.102(g). The Agency states that the temporary promotions were authorized pursuant to this regulation, which provides that upon completion of the time period for the promotion, "'the agency shall return the employee from the term promotion to the position from which [the employee] was promoted or to a position of equivalent grade and pay.'" Id. at 5-6 (quoting 5 C.F.R. º 335.102(g)(1)). The Agency contends that the "Arbitrator has no discretion to order the [A]gency to do anything other th[a]n as provided by the regulation." Id. at 6. Further, the Agency contends that an arbitrator may not order permanent placement of a grievant who has been returned to a previous position upon termination of a temporary promotion. The Agency also asserts that the award is contrary to section 7106(a)(2)(A) of the Statute because it prohibits management from creating and filling temporary positions.

IV. Analysis and Conclusions

We conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

A. The Award Does Not Fail to Draw Its Essence from the Collective Bargaining Agreements

In order for an award to be found deficient because it fails 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 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, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 771 (1990) (Social Security Administration).

The Agency has not demonstrated that the award is deficient under any of these tests. Before the Arbitrator, the parties argued the applicability of two provisions of the parties' agreements, Article XXVIII, Section 1 of the SA and Article 36, Section 4 of the MA. The Arbitrator considered the Agency's position that the grievance concerned a matter excluded from the grievance procedure by Article 36 of the MA and the Union's position that the grievance concerned whether the grievants had been treated unfairly and inequitably under Article XXVIII, when their coworkers' positions were converted to permanent career status while their positions were not. After evaluating the eviden