48:0755(78)AR - - DOD, NG Bureau, MI Air NG and ACT, MI State Council - - 1993 FLRAdec AR - - v48 p755



[ v48 p755 ]
48:0755(78)AR
The decision of the Authority follows:


48 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

MICHIGAN AIR NATIONAL GUARD

(Agency)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

MICHIGAN STATE COUNCIL

(Union)

0-AR-2441

_____

DECISION

October 27, 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 Patrick A. McDonald 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 claiming that the Agency improperly reassigned military personnel to vacant bargaining unit positions. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The dispute in this matter arose when the Agency reassigned seven members of the Active Guard Reserve (AGR or military personnel), who were assigned to a detachment that was closing, to vacant positions at Selfridge Air National Guard Base, Michigan. The Union filed a grievance claiming that the Agency's failure to publish job announcements for the vacancies and allow bargaining unit employees to compete violated the merit promotion provision of the parties' agreement.(1) When the parties could not resolve this dispute, it was submitted to arbitration.

The issue before the Arbitrator was as follows:

Did the [Agency] violate Article XIII of the labor management agreement by assigning military AGR personnel to positions without posting such positions [sic] to members of the bargaining unit to compete?

Award at 10.

The Union argued before the Arbitrator that the Agency violated the agreement by denying unit employees advancement and promotional opportunities. The Union pointed to several provisions in Article XIII to support its view that promotional opportunities for bargaining unit employees had to be publicized in order to allow such employees to compete. The Union also argued that a directive from the National Guard Bureau requesting the Agency to make every effort to place military personnel in vacant positions did not authorize the Agency to circumvent the provisions of the parties' agreement.

In addition to the claimed violation of the parties' agreement, the Union argued that the Agency's reassignment of the military personnel violated Air National Guard Regulation (ANGR) 35-03, pertaining to "the administration of personnel in an AGR status." Id. at 8. The Union asserted that there were certain announcement procedures the Agency was required to follow, which included "a requirement to treat all employees fairly . . . ." Id.

Finally, the Union argued that the Authority's holding in U.S. Department of Defense, National Guard Bureau, Washington Army National Guard, Tacoma, Washington and National Association of Government Employees, Sub-Local R12-122, 45 FLRA 782 (1992) (Washington Army National Guard) was not applicable to this case. Rather, the Union argued that the Authority's holding in Association of Civilian Technicians and Pennsylvania National Guard, 29 FLRA 1318 (1987) (Pennsylvania National Guard) was controlling.

The Agency argued before the Arbitrator that, although the Union contended that the parties' agreement gave bargaining unit employees a preference over military personnel in filling bargaining unit positions, the Union never cited the specific wording from the parties' agreement which would support that contention. The Agency also asserted that the reassignments of the military personnel were routine and "taken within the scope of military assignment regulations." Award at 9. The Agency claimed that the positions to which the military personnel were assigned were ones that could be filled with either military or civilian employees, at the Agency's discretion.

As to the claimed violation of an Agency regulation, the Agency asserted that the Arbitrator had "no authority to review actions taken under those military regulations." Id. at 10. In this regard, the Agency asserted that its actions in assigning the military personnel to unit positions "were military assignment actions with the authority reserved fully to the [Agency]." Id.

The Arbitrator found that the Union had not established a violation of Article XIII of the agreement. In reaching this result, the Arbitrator examined the merit promotion provisions of the agreement as well as a management rights provision of the agreement. The Arbitrator found that the merit promotion provisions contained procedures that are to be followed when placement actions occur within the bargaining unit. As to the management rights provision, under which the Agency retained the rights set forth in section 7106 of the Statute, the Arbitrator noted that the Agency's rights include the rights to determine the number of employees of the Agency, to assign work, and to determine the personnel by which Agency operations will be conducted.

The Arbitrator also addressed the applicability of Washington Army National Guard, in which the Authority set aside an award directing an agency to rerun a promotion action and to consider military personnel and civilian bargaining unit employees for a vacant position, despite the Agency's determination that the position was a military position. The Authority found in that case that the award directly interfered with management's right to determine its organization under section 7106(a)(1) of the Statute because the agency's decision to make the position a military position concerned the organization and functional structure of the agency in the assignment of duties to personnel. The Arbitrator found that the facts in Washington Army National Guard were "quite similar" to the facts in this case. Award at 13.

The Arbitrator also rejected the Union's contention that Pennsylvania National Guard, in which the Authority upheld an award finding that the agency violated the parties' collective bargaining agreement and agency regulations when it failed to post a position, was controlling in this case. The Arbitrator found that the factual situation in the case before him was closer to the situation presented in Washington Army National Guard than in Pennsylvania National Guard. In this connection, and based on the record before him, the Arbitrator found that the Agency had "made a determination through its actions that military personnel were to be reassigned to vacant military positions." Award at 13. The Arbitrator concluded, therefore, that the reasoning set forth by the Authority in Washington Army National Guard should be followed.

As to the Union's claim that the Agency violated ANGR 35-03, the Arbitrator found that he lacked the authority to address this issue. While stating that some of the Agency's actions in following the regulations were questionable, the Arbitrator found that he was confined to interpreting the express provisions of the collective bargaining agreement as provided in Article XXVII, Section 6D of the agreement.(2)

In sum, the Arbitrator concluded that "a violation of Article XIII of the labor agreement has not been demonstrated." Award at 14. Accordingly, he denied the grievance.

III. Positions of the Parties

A. Union

In its first exception, the Union argues that the Arbitrator's conclusion that no violation of Article XIII was shown fails to draw its essence from the parties' agreement. In support, the Union refers to the arguments it raised before the Arbitrator.

In its second exception, the Union argues that the award should be "overturned" because it is based on an erroneous interpretation of Authority precedent. Exceptions at 4. Specifically, the Union argues that the Arbitrator erroneously concluded that the Authority's holding in Washington Army National Guard, rather than Pennsylvania National Guard, was controlling.

Finally, in its third exception, the Union argues that the award is deficient because the Arbitrator's conclusion that he lacked jurisdiction to review alleged violations of ANGR 35-03 fails to draw its essence from the agreement and violates law by impermissibly narrowing the scope of the parties' grievance procedure. More particularly as to the latter contention, the Union argues that the award is inconsistent with the broad definition of "grievance" contained in section 7103(a)(9)(C)(ii) of the Statute and violates the requirement in section 7121(b)(3)(C) of the Statute that any unresolved grievance shall be subject to binding arbitration. The Union argues that the Statute and Authority precedent provide that any alleged violation of an applicable regulation is arbitrable unless the parties specifically exclude the matter from the scope of their negotiated grievance procedure. In this case, the Union argues that the parties' grievance provision is a "broad scope" procedure and that there is nothing in the agreement excluding a grievance over a claimed violation of ANGR 35-03. Id. at 7. Therefore, the Union argues that in concluding that he lacked jurisdiction to resolve the violation of the military regulation, the Arbitrator "ignored the scope of the grievance procedure as defined in Article XXVII of the Agreement." Id. at 8.

The Union further asserts that Article XXVII, Section 6D, on which the Arbitrator relied in concluding that he had no authority to review the Agency's actions under ANGR 35-03, "is not inconsistent with the broad scope language of the grievance procedure." Id. In the Union's view, the Arbitrator ignored his obligation to interpret the express provisions of the agreement. Finally, the Union argues that the award "violates the law because it refused to require the Agency to follow its own regulations." Id. at 9.

The Union requests that the Authority either set aside the award or remand the case to enable the Arbitrator to decide whether the Agency violated an applicable regulation.

B. Agency

The Agency argues that the Union's exceptions should be denied because they constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions and fail to state grounds on which the Authority can set aside the award.

First, the Agency argues that the Union failed to show that the Arbitrator's application of the reasoning in Washington Army National Guard to the facts in this case was incorrect. The Agency notes that the facts here are similar to those in Washington Army National Guard because in both cases "the employer had made a determination that the vacant positions were military positions and not civilian positions" for purposes of filling those positions. Opposition at 1.

Next, the Agency argues that the Union's contention that the Arbitrator erred when he found he did not have the authority to address a military regulation completely ignores his finding that he had "to remain carefully within the four corners of the agreement" under Article XXVII, Section 6D. Id. at 2. The Agency also argues that the Union had the burden of establishing that the Arbitrator was empowered to rule on the claimed violation of the military regulation and that the Union failed to meet that burden. Moreover, the Agency argues that the Union failed to establish that a violation of the regulation had occurred and, even assuming there was a violation, failed to demonstrate how it affected bargaining unit employees' conditions of employment.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

A. First Exception

The Union claims that the award fails to draw its essence from the agreement because the Arbitrator did not find a violation of Article XIII. We disagree. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show 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 the purpose 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. See U.S. Department of Health and Human Services, Social Security Administration, Area II, New York Region and American Federation of Government Employees, 48 FLRA 370, 380 (1993) (Social Security Administration).

The Arbitrator's award was based on his interpretation of the relevant provisions of the parties' agreement. The Arbitrator found that the Union failed to establish that the Agency violated the merit promotion provisions of the agreement when it filled positions with military personnel. The Union's exception does not establish that the Arbitrator's interpretation of the agreement was implausible, irrational, or unconnected to the wording of the parties' agreement. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's findings and is an attempt to relitigate this case before the Authority. Such an exception does not provide a basis for finding the award deficient. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).

B. Second Exception

The Union claims that the Arbitrator erroneously interpreted Authority precedent. In our view, the Union has not shown that the Arbitrator's reliance on Washington Army National Guard, rather than Pennsylvania National Guard, is erroneous. As noted in his award, the Arbitrator found that the facts in this case were similar to those in Washington Army National Guard because the Agency had essentially designated vacant bargaining unit positions as military positions and then reassigned military personnel to those positions. The Union does not specifically except to this finding but claims that the Arbitrator misconstrued the Authority's decisions and gave controlling weight to the wrong precedent.

We conclude that the Union has failed to establish that the Arbitrator misconstrued or improperly gave controlling weight to Washington Army National Guard. In our view, the Union is merely disagreeing with the Arbitrator's evaluation of the evidence and the weight to be accorded such evidence. The exception provides no basis for finding the award deficient. See, for example, General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 44 FLRA 901, 902-04 (1992).

C. Third Exception

The Union excepts to the Arbitrator's finding that he lacked jurisdiction to review the claimed violation of a military regulation. First, we reject the Union's contention that the award fails to draw its essence from the parties' agreement. In finding that he was without jurisdiction to address ANGR 35-03, the Arbitrator examined Article XXVII, Section 6D of the parties' agreement and found that he was limited to addressing the express provisions of that agreement, and not Agency actions taken under ANGR 35-03. In our view, the Union has not demonstrated that the Arbitrator's interpretation of Article XXVII, Section 6D, in the facts of this case, was implausible, irrational, or unfounded so as to fail to draw its essence from the agreement. See Social Security Administration, 48 FLRA at 380. Instead, we find that the Union is merely disagreeing with the Arbitrator's interpretation of Article XXVII, Section 6D. The exception does not provide a basis on which to find the award deficient. See, id.

We also reject the Union's contention that the award is inconsistent with sections 7103(a)(9)(c)(ii) and 7121(b)(3)(C) of the Statute because the Arbitrator impermissibly narrowed the scope of the parties' negotiated grievance procedure. As we stated above, the Arbitrator found that his authority to resolve the grievance was limited by the parties' agreement. In this regard, we note that section 7121(a)(2) of the Statute permits parties mutually to limit the scope of their negotiated grievance procedures. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic Topographic Center and American Federation of Government Employees, Local 3407, 34 FLRA 44 (1989) (parties excluded arbitration of performance rating appeals from their negotiated grievance procedure). In our view, the Arbitrator's determination that he was confined to addressing the merit promotion provisions of the agreement, and not the procedures for filling positions under a military regulation, does not violate the cited provisions of the Statute.

Finally, we reject the Union's contention that the award violates law because it failed to require the Agency to follow its own regulations. As noted, the Arbitrator did not address the merits of the claimed violation of the military regulation because of his finding that under the terms of the parties' collective bargaining agreement he lacked the authority to do so. We find nothing in the award that requires the Agency to ignore its own regulations and we find no basis on which to sustain this exception.

V. Decision

The Union's exceptions are denied.




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

1. Article XIII, Merit Promotion, provides, in relevant part, as follows:

Section 1. The purpose of this article is to establish procedures for locating, evaluating and selecting employees for promotion within the bargaining unit. It will insure that all promotions to bargaining unit positions and certain other placement actions as set forth in Section 2 below are made on a merit basis by means of a systematic and equitable procedure so that employees are given the opportunity to develop and advance to their full potential.

2. That section provides that the

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