47:0854(80)AR - - DOD, Defense Logistics Center Sharp Depot, Lathrop, CA and AFGE Local 1546 - - 1993 FLRAdec AR - - v47 p854

[ v47 p854 ]
The decision of the Authority follows:

47 FLRA No. 80











LOCAL 1546





June 9, 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 Gerald A. Brown 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 determined that the Agency did not violate the parties' collective bargaining agreement by terminating certain temporary promotions and returning the grievants to their permanent positions. For the following reasons, we find 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

In 1985, the grievants, all GS-11 supply systems analysts, received noncompetitive 4-year temporary promotions to GS-12, for a special project.(1) In 1989, the grievants competed, and were selected, for temporary GS-12 positions on the same project. Subsequently, the temporary promotions were terminated and the grievants were restored to their permanent GS-11 positions.

The Union filed a grievance alleging that the Agency failed to treat the grievants equitably and fairly, as required by Article 28, section 1 of the parties' agreement, by refusing to make permanent the temporary promotions.(2) When the grievance was not resolved, it was submitted to arbitration. In an initial award, the Arbitrator found that the grievance was arbitrable. The Authority denied exceptions to that award. Defense Logistics Agency and American Federation of Government Employees, Local 1546, 44 FLRA 1015 (1992) (DLA).(3) Subsequently, the case proceeded to arbitration on the merits, where the parties stipulated the issue as:

Were the grievants given fair and equal treatment with respect to permanent promotions to the GS-12 level, and if not what is the appropriate remedy?

Award at 2.

The Arbitrator found that "an appealing case" had been made for sustaining the grievance. Id. at 8. The Arbitrator noted, in this regard, that the grievants had performed well in their temporary GS-12 positions for over 6 years and that permanent GS-12 work was available. However, the Arbitrator also noted that his function was to "interpret and enforce" the parties' agreement, not to "dispense his own system of justice[.]" Id. The Arbitrator concluded as follows:

[T]he controlling issue in this case is not based upon the termination of temporary promotions, which is excluded from the grievance procedure by the collective bargaining agreement. Procedural irregularities, if any, in the temporary appointments do not establish discrimination. The issue of 'fair and equitable' involves the question of equal and impartial treatment of all concerned according to the rules under the [parties' agreement]. . . . The decisions of management about the assignment of the grievants upon their return from the special project could have been different, but I find nothing in the [agreement] compelling different answers. . . . Why the . . . grievants . . . were not selected for the new GS-12's is not explained on this record, and I have no basis for finding their treatment to be unfair or inequitable.

Id. at 8-9. As his award, the Arbitrator denied the grievance.

III. Exceptions

The Union contends that the award fails to draw its essence from Article 25, sections 1 and 9, and Article 28, section 1, of the parties' agreement.(4) According to the Union, the Arbitrator "clearly fail[ed] to interpret and enforce" the parties' agreement. Exceptions at 3.

The Union also argues that the award conflicts with 5 U.S.C. §§ 2301 and 2301(b);(5) Federal Personnel Manual (FPM) Part 335, subchapter 1-5 and Appendix A-4;(6) and 5 C.F.R. § 335.102(f) and (g).(7) The Union asserts, in this connection, that the grievants' temporary promotions should have been made permanent and, if they had been made permanent, then "[t]he abolishment of these permanent positions . . . would appropriately [have] become a reduction in force action and entitle[d] the grievants to retention rights and retained pay at the GS-12 level." Exceptions at 5 (emphasis in original).

Finally, the Union argues that the award is based on a nonfact. According to the Union, "[t]he Arbitrator's conclusions upon which the award is derived were based on the central underlying nonfact that the grievants were pleading their case as 'victims of discrimination.'" Id. at 8. The Union claims that the Arbitrator's "focus on discrimination resulted in or contributed significantly to his failure to recognize" violations of the parties' agreement. Id.

IV. Opposition

The Agency contends that the Union is merely disagreeing with the award. The Agency argues that the Union has failed to demonstrate that the award fails to draw its essence from the parties' agreement or that the award is inconsistent with law or regulation.

V. Analysis and Conclusions

A. Essence of the Parties' Agreement

For the Authority to find that an award is deficient because it fails to draw its essence from a collective bargaining agreement, the moving party 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 arbitrator's obligation; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183, 1188 (1990).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of the above criteria. The Arbitrator based his conclusion that the Union failed to prove that the grievants were treated unfairly and inequitably on his interpretation of the parties' agreement and his application of the agreement to the facts in this case. In concluding that there was "no basis for finding [the grievants'] treatment to be unfair or inequitable[,]" the Arbitrator stated that he found "nothing in the [collective bargaining agreement] compelling different answers." Award at 9. We have no basis on which to conclude that the Arbitrator's interpretation of the parties' agreement is implausible, irrational, or unconnected to the purpose of the agreement. Rather, we conclude, in agreement with the Agency, that the Union's arguments constitute mere disagreement with the Arbitrator's interpretation and application of the agreement. Accordingly, this exception provides no basis for finding the award deficient. See U.S. Department of the Treasury, Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, and National Treasury Employees Union, Cincinnati Joint Council, 47 FLRA 207, 215 (1993).

B. Law and Regulation

We also find that the Union has not established that the award is inconsistent with law or regulation. In particular, the Union has not demonstrated, and it is not otherwise apparent, that the Arbitrator's conclusion that the Agency did not fail to treat the grievants fairly and equitably under the parties' agreement is inconsistent with the provisions, law and regulation relied on by the Union. Accordingly, this exception does not demonstrate that the award is deficient.

We note, in this connection, that the Union's argument that the grievants were entitled to the protection of reduction in force (RIF) procedures at the time their temporary promotions were terminated is based on the Union's contention that the promotions should previously have been made permanent. However, the Union has not shown that the Agency acted improperly in effecting the temporary promotions or in failing to make them permanent. We also note that, under 5 C.F.R. § 351.202(c)(1), RIF procedures do not apply to "[t]he termination of a temporary or term promotion or the return of an employee to the position held before the temporary or term promotion . . . ."

C. Nonfact

Finally, we reject the Union's argument that the award is based on a nonfact because of the Arbitrator's use of the term "discrimination." In order to establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. American Federation of Government Employees, Local 2921 and U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, 47 FLRA 446, 452 (1993). No such showing has been made here.

It is not clear, in this regard, that the Arbitrator's reference to "discrimination" constitutes a fact. However, assuming that it is, the Union has not demonstrated that the Arbitrator's use of the term was clearly erroneous or that it was central to the Arbitrator's conclusion that the Agency did not violate the parties' agreement. Accordingly, we will deny this exception.

VI. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Three employees were originally named as grievants. One of the grievants later withdrew and the Union pursued the appeal on behalf of the remaining grievants.

2. Article 28, section 1 of the parties' agreement provides, in pertinent part:

Section 1. General. The [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. . . .

Attachment to Exceptions at 39.

3. The Arbitrator held in his initial award that the parties had agreed to exclude grievances over the termination of temporary promotions from the scope of their negotiated grievance procedure. However, the Arbitrator also held that "'the exclusion of terminations of temporary promotions does not eliminate grievances for inequitable treatment.'" DLA, 44 FLRA at 1018 (quoting Initial Award at 5).

4. As relevant here, Article 25, sections 1 and 9 of the parties' agreement provide:

Section 1. General. The purpose and intent of this Article is to assure that employees are given fair and equitable consideration for advancement . . . . It is agreed that the provisions of this Article will be administered fairly and equitably.

Section 9. Merit Promotion Requirements and Procedures. The Merit Promotion Requirements and Procedures of FPM and CPR 335 will be followed by the Employer when filling positions in the unit under competitive procedures.

Attachment to Exceptions at 32, 35.

5. 5 U.S.C. §§ 2301 and 2302 are entitled, respectively, "Merit system principles" and "Prohibited personnel practices." The Union does not specify the portions of these provisions with which the award allegedly conflicts.

6. FPM Part 335, subchapter 1-5 sets forth personnel actions which must be covered by competitive procedures and includes, as relevant here, certain temporary promotions. Appendix A-4 addresses "corrective" personnel actions.

7. 5 C.F.R. § 335.102(f) and (g) provide, in pertinent part, that an agency may:

(f)(1) Except as otherwise specifically authorized by OPM, temporarily promote an employee . . . for a definite period of 1 year or less and extend such a promotion for a definite period not to exceed 1 additional year. . . . The return of an employee to the position from which the agency temporarily promoted him . . . is not subject to Parts 351 [and] 752 . . . of this chapter (footnote omitted).

. . .

(g) After entering into a formal agreement with . . . [OPM], promote an employee for a limited term in excess of 2 years but not more than 4 years to complete a designated project[.] . . . Upon the approval of the Office, an agency may extend the period 1 year for a total of 5 years. . . .

(1) Upon completion or termination of the assigned project or the termination of the specified rotation period, the agency shall return the employee . . . to the position from which he or she was promoted or to a position of equivalent grade and pay.

(2) The return of an employee to the position from which he or she was promoted . . . is not subject to Parts 351 [and] 752 . . . of this chapter. . . .