American Federation of Government Employees, Local 12 (Union) and United States, Department of Labor, Occupational Safety and Health Administration, Washington, D.C. (Agency)

[ v61 p507 ]

61 FLRA No. 95

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION
WASHINGTON, D.C.
(Agency)

0-AR-4003

_____

DECISION

February 10, 2006

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Earle William Hockenberry 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 found that the Agency did not violate the parties' agreement by not placing the grievant in an Occupational Safety and Health (OSH) Specialist position when she completed the Agency's Career Enhancement Program (CEP). Therefore, the Arbitrator denied the grievance. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      On February 3, 1997, the grievant completed the Agency's CEP and, pursuant to the guidelines of that program, was promoted from a GS-5 position to OSH Assistant (GS-6), a bridge position to the target position of OSH Assistant (GS-7). On October 11, 2000, the grievant was promoted to the target position. In 2001, the grievant filed an informal equal employment opportunity (EEO) complaint alleging age and gender discrimination. The EEO complaint was settled with the Agency agreeing to promote the grievant to OSH Assistant (GS-7, step 9).

      In 2004, the Union filed the instant grievance alleging that the Agency had violated the parties' collective bargaining agreement and the settlement agreement by failing to promote the grievant to the position of OSH Specialist (GS-11 or GS-12). Unresolved, the grievance was submitted to arbitration. At the outset, the Arbitrator explained that the matter would be resolved using the parties' expedited arbitration process. The parties were unable to stipulate the issues to be resolved. Therefore, the Arbitrator framed the issue as follows: "Did [m]anagement violate Articles 3, 16 and 19 of the [parties' agreement] when it did not place [the grievant] into an [OSH] Specialist position . . . after her completion of the . . . [CEP]? If so, what shall be the remedy?" Award at 3.

      The Arbitrator reviewed the vacancy announcement for the CEP, witness testimony, and documentary evidence concerning other employees who had completed the CEP. Based on this evidence, the Arbitrator found that the grievant's successful completion of the CEP entitled her to "a two level opportunity to move from her then GS-5 position to a GS-7 position as a Safety and Occupational Health Assistant, and not a Safety and Occupational Health Specialist[.]" Id. at 9 (emphasis in original). In addition, after reviewing the settlement agreement, the Arbitrator found that the grievant was entitled to "nothing more tha[n] a retroactive promotion to the position of Safety and Occupational Health Assistant, GS-7, step 9 . . . ." Id.

      The Arbitrator noted "the requirement of the [s]ettlement [a]greement that `management will work with [the grievant] on development of an Individual Development Plan'" (IDP) and found that the Agency had attempted to fulfill this requirement "without success due to the inability of the [g]rievant to provide essential training credentials." Id. In this regard, the Arbitrator explained that "[a] clear reading of . . . the IDP indicates that there is an obligation on the part of both parties" and he found that the grievant's failure to provide necessary documentation "erodes any argument of bias or discrimination on the part of the Agency in not completing the plan." Id.

      Based on the foregoing, the Arbitrator denied the grievance. [ v61 p508 ]

III.     Positions of the Parties

A.      Union's Exceptions

      The Union argues that the award is deficient because the Arbitrator incorrectly permitted the Agency to invoke the expedited arbitration process under the parties' 2005 agreement rather than the process under the parties' 1992 agreement. The Union also argues that the Arbitrator incorrectly relied upon § 3 of the parties' settlement agreement as one of the grounds for denying the grievance. In this connection, the Union claims that § 3 precludes the grievant from initiating "new grievances on the facts or circumstances" of the informal EEO complaint. Exceptions at 7. The Union claims this provision is inapplicable because the informal EEO complaint and the instant grievance concern different facts and circumstances. In any event, the Union argues that the Arbitrator's reliance on this provision is inconsistent with his decision to hear the grievance on the merits.

      Finally, the Union argues that the Arbitrator improperly relied on § 4(b) of the settlement agreement, which requires management to work with the grievant on the development of an appropriate IDP because that provision, according to the Union, is irrelevant. Even assuming the provision is relevant, the Union argues that the Arbitrator misinterpreted it as requiring the grievant and management to jointly develop the IDP. See id. at 8.

B.      Agency's Opposition

      According to the Agency, the Arbitrator did not err in deciding to use the expedited arbitration process because the parties agreed to use that process. In this connection, the Agency asserts that both the parties' 1992 and 2005 agreements permitted the parties to use the expedited arbitration process "based on mutual agreement." Opposition at 6 (citing Article 44, § 7(c) of the 1992 agreement and Article 48, § 7(b) of the 2005 agreement). In addition, the Agency asserts that the Arbitrator correctly found no violation of the parties' agreement.

IV.     Preliminary Issue

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). There is no indication in the record that the Union argued below that the Arbitrator should apply the parties' 1992 agreement rather than the 2005 agreement. In fact, the Union concedes that "the parties agreed to an expedited proceeding" before the Arbitrator. Exceptions at 5. As such, the Union's argument is not properly before the Authority, and we will not consider it.

V.      Analysis and Conclusions

      Under both Authority and Equal Employment Opportunity Commission precedent, "a settlement agreement constitutes a contract between the employee and the agency, to which ordinary rules of contract construction apply." SSA, Balt., Md., 57 FLRA 181, 184 (2001) (quoting Stone v. Summers, 2001 WL 27624 (E.E.O.C.)). Therefore, we apply the deferential "essence" standard to review the Arbitrator's interpretation of the parties' settlement agreement. See, e.g., United States Dep't of the Navy, Naval Weapons Station, Yorktown, Va., 57 FLRA 917, 920 (2002). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the settlement agreement when the appealing party establishes 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 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.

      The Union's argument that the Arbitrator incorrectly relied on § 3 of the parties' settlement agreement to deny the grievance does not establish that the award fails to draw its essence from the parties' agreement. Section 3 precludes the grievant from initiating grievances against the Agency "relating to the facts and circumstances which gave rise to this informal complaint." Joint Exh. 4. While the Arbitrator referred to this provision in a footnote, he did not rely on it in denying the grievance. See Award at 9 n.9. That is, the Arbitrator did not find that the grievance concerned the same facts and circumstances involved in the informal EEO complaint, as such a finding would have resulted in a procedural dismissal of the grievance. Rather, the Arbitrator considered, and ultimately denied, the grievance on the merits. Consequently, the Union has not shown that the award fails to draw its essence from § 3 of the parties' settlement agreement.

      The Union also disputes the Arbitrator's application of § 4(b) of the parties' settlement agreement, [ v61 p509 ] claiming that the provision is not "relevant" to the grievance. We reject this claim on the ground that, under longstanding Authority precedent, a party's disagr