American Federation of Government Employees, Local 1749 (Union) and United States, Department of the Air Force, 47th Flying Training Wing, Laughlin Air Force Base, Texas (Agency)

[ v58 p459 ]

58 FLRA No. 111

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1749
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
47th FLYING TRAINING WING
LAUGHLIN AIR FORCE BASE, TEXAS

(Agency)

0-AR-3591

_____

DECISION

April 10, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
arol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Elvis C. Stephens filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator dismissed a grievance alleging discrimination based on the Agency's failure to give the grievant priority consideration for a position based on an Equal Employment Opportunity (EEO) settlement agreement. The Arbitrator found that the grievance was not arbitrable because it involved the same issue as a previously filed EEO complaint.

      For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      On September 14, 2000, the grievant and the Agency signed an EEO Settlement Agreement (EEO SA) which provided:

Priority consideration will be given for the next GS position in the civilian personnel career field or any other GS position at the [Agency] for which [the grievant] qualifies for at the GS-7 level or above. [The grievant] will be interviewed for this position and if applicable a written notification of non selection with justification for his non selection will be provided.

Award at 1-2.

      In January 2002, the grievant was certified for an EEO Counselor/Manager position, and in accordance with the EEO SA, he was interviewed for the position. After the grievant was not selected, he was placed on another list of employees to be considered for the position. He again was not selected.

      On February 20, 2002, the grievant filed an EEO complaint with the Agency alleging that "`the Agency breached the settlement agreement' by denying him priority consideration for the EEO Counselor/Manager position." Id. at 2 (quoting EEO Complaint).

      On February 22, 2002, the grievant filed a grievance contending that the Agency "`discriminated and reprised against me by denying a priority consideration which was entered into a settlement agreement by the Agency on 14 September 2000.'" Id. (quoting grievance).

      The grievance was not resolved and was submitted to arbitration. In its pre-hearing brief, the Agency asserted that the grievance was not arbitrable. The issues before the Arbitrator were:

Is the grievance arbitrable?
If so, did the Agency discriminate against [the grievant] when it did not select him for the position of Chief EEO Counselor/ADR Program Manager? If so, what is the proper remedy?

Id. at 1.

      The Agency argued that the grievance was not arbitrable because the grievant had filed an EEO complaint and Article 26, Section 5 of the parties collective bargaining Agreement (CBA) provides that an employee affected by discrimination or removal (or other causes) can file a grievance or raise the matter under the statutory appellate procedure, but not both. [n1]  [ v58 p460 ] The Agency also argued that Article 26, Section 6(b) provides that the employee is deemed to have made his choice by whichever the employee files first. [n2]  The Union argued that the grievance alleged discrimination against the grievant, and that it was separate from the claims in the EEO complaint.

      The Arbitrator concluded that Article 26, Section 5 provides that an employee affected by discrimination may file a grievance or a statutory appeal, but not both, and that the employee is deemed to have chosen either a statutory appeal procedure or the grievance procedure by whichever one the employee files first. The Arbitrator found that the grievant filed an EEO appeal of his non selection prior to filing his grievance.

      The Arbitrator considered the Union's assertion that the "grievance is about discrimination which is separate from [the] EEO appeal, which is about not receiving priority consideration." Id. at 4. The Arbitrator found that in the EEO complaint the grievant stated the "reasons given for his non selection were not legitimate as I met the required qualification skills in the position description." Id. In concluding that the EEO appeal covered the same matter as the grievance, the Arbitrator noted the Authority's decision in Soc. Sec. Admin., Balt., Md., 57 FLRA 181 (2001) (SSA), where the Authority upheld an award in which the arbitrator concluded that the "denial of an EEO settlement must be viewed on its face as an act of discrimination." Award at 4-5.

      The Arbitrator found the grievance used similar terminology to that used in SSA in describing what was an act of discrimination. Based upon the similarity of the arguments presented in the grievance and the EEO complaint, the Arbitrator found that it was "apparent that [the grievant's] EEO appeal is based on his belief that his non selection was based on discrimination--the very basis of his grievance." Id. at 5. Accordingly, the Arbitrator found that the grievance and the EEO complaint concerned the same issue. Therefore, he concluded that the grievance was not arbitrable under Article 26 of the CBA and dismissed the grievance.

III.     Positions of the Parties

A.     Union

      The Union challenges the Arbitrator's finding that the grievance was not "arbitrable[,]" and asserts that the award is contrary to law, but does not cite or refer to any specific law, rule or regulation. Exceptions at 2.

      The Union next asserts that the award does not draw its essence from the CBA and the Arbitrator exceeded his authority. The Union contends that the Arbitrator "committed procedural error when he concluded that the grievant had filed an EEO complaint and then filed a grievance on the same position/issue thereby rendering the grievance not arbitrable." Id. The Union asserts that it filed a breach of settlement agreement charging the Agency did not comply with the terms of the SA by not affording the grievant with priority consideration. With respect to the grievance, the Union contends that it was filed because the grievant felt he was discriminated against in the non-selection of the Chief EEO Counselor position GS-9. The Union argues, therefore, that the grievant "asserts two different positions and two different issues." Id. The Union contends that the testimony of the Chief EEO Counselor supports its position that it did not file an EEO complaint on the non-selection for the EEO Chief Counselor position.

B.     Agency

      According to the Agency, the issue grieved is whether the Agency complied with the terms of the SA by affording the grievant priority consideration. The Agency asserts that because the alleged breach had already been raised to the EEOC, the Arbitrator properly construed the negotiated agreement to render the matter nonarbitrable. Therefore, the Agency contends that the exceptions constitute mere disagreement with the arbitrator's interpretation and application of the parties' CBA and provides no basis for finding the award deficient.

IV.     Analysis and Conclusions  [n3] 

A.     The Arbitrator Did Not Exceed his Authority

      The Union contends that the Arbitrator exceeded his authority "when he concluded that the grievant had filed an EEO complaint and then filed a grievance on [ v58 p461 ] the same . . . issue thereby rendering the grievance not arbitrable." Exceptions at 2.

      In order to demonstrate that an arbitrator exceeded his or her authority in issuing an award, a party must demonstrate that the arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded a specific limitation on his or her authority, or awarded relief to persons who are not encompassed within the grievance. See SSA, 57 FLRA at 183; United States Dep't of Defense, Education Activity, Arlington, Va., 56 FLRA 887, 891 (2000).

      In this case, an issue before the Arbitrator was whether the grievance was arbitrable. In concluding that the grievance concerned the same matter as the EEO complaint, the Arbitrator found that the EEO complaint alleged that "`the Agency breached the [EEO] settlement agreement' by denying [the grievant] priority consideration for the EEO Counselor/Manager position[,]" and the grievance, filed later, alleged the Agency "`discriminated and reprised against me by denying a priority consideration which was entered into a settlement agreement by the Agency on 14 September 2000.'" Award at 2 (quoting EEO complaint and grievance). As a result, he found that the grievance was not arbitrable.

      The Arbitrator's award is directly responsive to the issue before him and does not fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, or disregard a specific limitation on his authority. Accordingly, the Union has failed to establish that the award is deficient on the grounds that the Arbitrator exceeded his authority.

B.     The Arbitrator's Determination on Arbitrability Does Not Fail to Draw Its Essence From the Parties' CBA

      The Union asserts that the Arbitrator's substantive arbitrability finding fails to draw its essence from the CBA. The arbitrator's contractual determination regarding substantive arbitrability is subject to the deferential essence standard. See Nat'l Air Traffic Controllers Assoc., 56 FLRA 733, 735 n.3 (2000) (citing American Federation of Government Employees, Local 1857, 53 FLRA 1353 (1998)); Equal Employment Opportunity Commission, 53 FLRA 465, 481 n.20 (1997).

      For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established 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 collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      In this case, in concluding that the grievance was not arbitrable, the Arbitrator, as previously mentioned, interpreted and applied Article 26 of the parties' CBA, which permits an aggrieved employee affected by discrimination to raise the matter under a statutory appellate procedure or the negotiated grievance procedure, but not both. The Arbitrator considered the allegations raised in the EEO complaint and the grievance and found, based on these allegations, the arguments made by the grievant, and his interpretation of the CBA that the grievance concerned the same matter as the EEO complaint. Therefore, the Arbitrator concluded that the grievance was not arbitrable.

      The Union has not demonstrated that the Arbitrator's interpretation of Article 26 of the parties' CBA manifests a disregard of the agreement or is implausible, irrational, or unfounded. Consequently, the Union's exception provides no basis for finding that the award on substantive arbitrability fails to draw its essence from the agreement.

      Therefore, this exception provides no basis for finding the award deficient.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 58 FLRA No. 111 - Authority's Decision

   Article 26, Section 5 provides, in pertinent part, as follows:

[A]n aggrieved employee affected by discrimination . . . may at his/her option raise the matter under statutory appellate procedure or the negotiated grievance procedure, but not both.