46:0229(21)AR - - GSA and AFGE, Council 236 - - 1992 FLRAdec AR - - v46 p229
[ v46 p229 ]
The decision of the Authority follows:
46 FLRA No. 21
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL SERVICES ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 23, 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 Geraldine M. Randall 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 did not file an opposition to the Union's exceptions.
The Arbitrator determined that the grievant's removal from a career development program did not violate 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 Union's exceptions.
II. Background and Arbitrator's Award
The grievant entered the Agency's Career Intern Development System (CIDS) program, as a GS-5, in 1988. The grievant was promoted to GS-7 in 1989, after having received a 5-month extension of time to complete the first stage of the CIDS program. Management gave the grievant another extension of time, until May 1991, to complete the second stage of the program and, as a result of such completion, qualify for promotion to GS-9.
In June 1991, the Agency removed the grievant from CIDS because, according to the Agency, he failed to produce an acceptable case study as required by the program. A grievance was filed over the grievant's removal from the program and, when the grievance was not resolved, it was submitted to arbitration. As relevant here, the issue before the Arbitrator was:
Did the Grievant's removal from the CIDS program violate Article 12, Section 3.B, of the negotiated agreement? If so[,] what is the proper remedy?(1)
Award at 2.
Before the Arbitrator, the Union argued, among other things, that there were "serious deficiencies" in the grievant's Individual Development Plan (IDP). Id. at 4. In particular, the Union noted that the grievant's IDP provided a short-term goal of promotion to GS-7 within 3 to 5 years, and a long-term goal of promotion to GS-9 within 5 to 10 years. According to the Union, as promotions to GS-7 and 9 normally occurred within 1 to 2 years, the IDP "should have so indicated." Id. The Union also argued that "[f]ailure to produce a case study should not result in a failure of the entire program." Id.
The Arbitrator found that the time periods for promotion contained in the grievant's IDP differed from those under CIDS. However, the Arbitrator concluded as follows:
While it is true that a discrepancy exists, it is also clear from the evidence that Grievant was fully informed and aware of the CIDS promotion schedule. Thus, the discrepancy is a minor technical defect that had no impact on Grievant's performance in the program.
Id. at 8.
The Arbitrator found that, in addition to awareness of the schedule for promotion in the CIDS program, the grievant also was aware that a condition of his promotion to GS-9 was the timely completion of an acceptable case study. The Arbitrator also found that the grievant's failure to produce an acceptable case study, within prescribed time limits, was a proper basis for the Agency to remove the grievant from CIDS. The Arbitrator concluded, in agreement with the Agency, that the case study prepared by the grievant was not acceptable. The Arbitrator noted, in this regard, that the grievant had been given the maximum extension of time available under CIDS for completion of the program.
The Arbitrator concluded that the grievant's removal from CIDS was "proper" and did not violate the parties' agreement. Id. at 9.
The Union argues that, under Article 2, section 3B of the agreement, the agreement controls over any conflicting Agency regulations.(2) According to the Union, the Arbitrator "ignored this provision which would have had a direct impact on the outcome of this case." Exceptions at 2. The Union claims that, although the Arbitrator noted the discrepancies between the goals for promotion set forth in the grievant's IDP and the requirements in CIDS, the Arbitrator "adopted the Agency's regulatory requirements over the [IDP] in the [c]ontract." Id. at 1. The Union concludes that the Arbitrator "exceeded her authority" and that the award does not draw its essence from the parties' agreement. Id. at 3.
IV. Analysis and Conclusions
An Arbitrator exceeds his or her authority when, among other things, the Arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. For example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1141 (1992). The Union does not argue that the Arbitrator resolved issues that were not before her and otherwise does not support its claim that the Arbitrator exceeded her authority. Accordingly, we will deny this exception.
To establish that an award is deficient because it does not draw its essence from a 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 of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1211 (1991).
The Union has not demonstrated that the Arbitrator's award is deficient under any of the tests set forth above. The Arbitrator noted the discrepancies between the goals for promotion set forth in the grievant's IDP and the requirements in CIDS but found, based on the record, that the discrepancies had no effect on the grievant's performance in CIDS. The Arbitrator stated, in this regard, that the grievant was "fully informed and aware of the CIDS promotion schedule." Award at 8. The Union has not shown that the Arbitrator's conclusion that the grievant's removal from CIDS did not violate the parties' agreement is irrational, implausible, or evidences a manifest disregard for the agreement. Accordingly, we will deny the Union's exception that the award fails to draw its essence from the agreement.
Finally, we reject the Union's argument that the Arbitrator improperly "adopted the Agency's regulatory requirements over the [IDP] in the [c]ontract" and, thereby, "ignored" Article 2, section 3B of the agreement. Exceptions at 1, 2. The Union has not shown that there is a conflict between the IDP goals and the CIDS requirements. Moreover, even if there were such conflict, the Union has not shown that the parties' "agreement," within the meaning of Article 2, section 3B, encompasses IDPs.
In our view, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issue presented to and resolved by the Arbitrator. This disagreement provides no basis for finding the award deficient. See U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1049 (1991).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 12, section 3B, provides:
Employees selected for existing career development programs will have individual development plans as required by that program.
Award at 3.
2. According to the Union, Article 2, section 3B of the parties agreement provides:
In the case of conflict between GSA regulations and this Agreement, the Agreement governs.
Exceptions at 2.