46:1444(138)AR - - Wiregrass Metal Trades Council and Army Aviation Center and Fort Rucker, Fort Rucker, AL - - 1993 FLRAdec AR - - v46 p1444
[ v46 p1444 ]
The decision of the Authority follows:
46 FLRA No. 138
FEDERAL LABOR RELATIONS AUTHORITY
WIREGRASS METAL TRADES COUNCIL
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY AVIATION CENTER AND FORT RUCKER
FORT RUCKER, ALABAMA
February 18, 1993
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 James E. Fulford 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 Arbitrator denied a grievance alleging that the Agency violated its own regulations and the parties' collective bargaining agreement when it hired an outside applicant for a newly created wage grade position. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Agency created and advertised a WG-12 mechanic position for which four civilian employees of the Agency and one external candidate, who was a Vietnam veteran, applied. The Agency selected the external candidate. Prior to the selectee's reporting date, the Agency discovered that, due to a change in the Veteran's Readjustment Act, the selectee could not be placed in a position higher than WG-11. The Agency also learned that it had been placed under a hiring freeze which restricted its ability to hire outside applicants. Subsequently, the Agency reclassified the position at the WG-11 level, and issued a new selection register which contained only the names of the original selectee and one internal candidate. The Agency again selected the external applicant.
The Union filed a grievance on behalf of two of the original applicants. The grievance was subsequently submitted to arbitration, where the Arbitrator framed the issue as follows:
Did the Aviation Center violate the [l]abor [a]greement or applicable laws, rules or regulations, when the job of Electronic Digital Computer Mechanic was awarded to [the selectee]? If so, what shall the remedy be?
Award at 1.
At the hearing, the Union argued that by filling the position with an external candidate, the Agency violated a hiring freeze directive which mandated that five employees must leave the Agency's rolls before two "outside" applicants could be hired. Id. at 4. The Agency argued that the directive allowed it to hire one person for every three employees who left the Agency. The Arbitrator noted that neither party offered proof for its position. However, the Arbitrator determined that, as the directive was a governing Agency regulation, under the parties' collective bargaining agreement he was constrained to accept the Agency's interpretation of the directive.(1) Accordingly, the Arbitrator concluded that he was unable to adopt the Union's interpretation of the directive.
The Union also argued that the Agency violated the parties' agreement by reclassifying the position.(2) However, the Arbitrator noted that the Agency contended it "had the right to do as it did[,]" and concluded that the Union offered "[n]o proof to the contrary." Id. at 5.
Finally, the Union argued that the Agency violated the Merit Placement Plan set forth in Article 17 of the parties' agreement.(3) However, the Arbitrator found that "[a] search of the [parties'] [a]greement failed to reveal any restriction" on the Agency's ability to make selections for vacancies. Id.
The Arbitrator concluded that, "a study of all contract language, Merit Placement Plan articles, etc.[,] failed to give this [A]rbitrator any authority to rule in favor of the grievants." Id. at 6. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union argues that the Arbitrator did not properly address all of the issues before him. The Union also argues that the award is based on "non-fact information." Exceptions at 2. In support of these contentions, the Union states that the Agency violated Article 17, Section 5-3 of the parties' agreement, "and any/all other applicable sections[,]" when it failed to fill the position from a "legally constituted referral list."(4) Id. The Union also argues that the Agency's selection of the external candidate violated the Agency's hiring freeze directive.
The Agency asserts that the Union's exceptions provide no basis on which to overturn the award and that the Union is simply disagreeing with the Arbitrator's evaluation of the evidence.
IV. Analysis and Conclusions
We construe the Union's argument that the Agency violated the parties' agreement as a contention that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, it must be shown 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 purposes 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. For example, General Services Administration Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1044 (1992) (GSA Region 2).
Here, the Arbitrator interpreted the parties' agreement and concluded that he was unable to rule in favor of the grievants with respect to any of the claimed violations. We find nothing in the award which is irrational, unfounded, implausible or in manifest disregard of those portions of the agreement which have been provided to us. Accordingly, we conclude that the Union fails to establish that the award is deficient on this ground. For example, id.
We also reject the Union's contention that the award is based on "non-fact information." Exceptions at 2. To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, American Federation of Government Employees, AFL-CIO Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 817 (1992) (AFGE, AFL-CIO Local 3615). The Union has not identified the asserted nonfact and, in general, offers no elaboration on its assertion. In our view, the assertion constitutes mere disagreement with the Arbitrator's findings and conclusions and his interpretation of the parties' collective bargaining agreement, and provides no basis on which to find the award deficient. Id.
We construe the Union's argument that the Agency violated its hiring freeze directive as a contention that the award is contrary to Agency regulations. A conflict with an agency's regulations will provide a basis for finding an award deficient under section 7122(a)(1) of the Statute when such regulations govern the disposition of the matter resolved by the arbitration award. 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, 195 (1990) (Fort Campbell). Applicable provisions of a collective bargaining agreement, rather than agency rules and regulations, govern the disposition of matters to which they both apply. Id. at 194. A party contending that an award is deficient as contrary to agency regulations should address whether provisions of an applicable agreement conflict with the agency regulation. Id. at 195 n.2.
The Union does not assert, and there is no other basis on which to conclude, that the parties' agreement, rather than the Agency's directive, governs the matter of the Agency's hiring freeze. Accordingly, we conclude that the Agency directive governs the issue.