34:0591(100)AR - - Illinois Air NG, 182nd Tactical Air Support Group and ACT, Illinois Chapter 34 - - 1990 FLRAdec AR - - v34 p591

[ v34 p591 ]
The decision of the Authority follows:

34 FLRA No. 100










January 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Gerald Cohen filed by The Association of Civilian Technicians, Illinois Chapter 34 (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 Illinois Air National Guard, 182nd Tactical Air Support Group (the Agency) filed an opposition to the exception.

The Arbitrator found that the grievance was not arbitrable because it involved the filling of a supervisory position, a matter which the Arbitrator found was excluded from coverage under the parties' collective bargaining agreement. The Union argues that the Arbitrator's award is deficient because it does not draw its essence from the parties' collective bargaining agreement.

For the reasons set forth below, we find that the Union has failed to demonstrate that the Arbitrator's award is deficient under section 7122(a). Therefore, we deny the Union's exception.

II. Background and Arbitrator's Award

The Agency posted a vacancy announcement for the position of Fabrication Foreman. The area of consideration for this supervisory position was the bargaining unit and the military. A Master Sergeant was selected. The Union grieved the manner in which the Agency filled the position. When the matter was not resolved, the parties submitted the grievance to arbitration.

The issues, as framed by the Arbitrator, were whether the grievance was arbitrable, and if so, whether the Agency violated the parties' agreement by the manner in which it filled the position. The Arbitrator concluded that the grievance was not arbitrable.

The Arbitrator noted that the evidence, as well as a stipulation between the parties, indicated that the Fabrication Foreman position was supervisory. Award at 5. The Arbitrator found that Article 2 of the parties' collective bargaining agreement excluded supervisors from coverage. The Arbitrator also noted that, according to Article 10 of the parties' agreement, the Illinois Technician Personnel Plan 335 (TPPlan 335) only covered filling vacancies within the bargaining unit. Id. at 6. The Arbitrator stated that "TPPlan 335 is not applicable to the position of Fabrication Foreman since the position is not 'within the bargaining unit[.]'" Id. According to the Arbitrator, the method used by the Agency to fill the Fabrication Foreman position did not determine whether the position was a bargaining unit position and subject to contractual requirements. Because the grievance concerned filling a supervisory position, the Arbitrator concluded that it was not arbitrable under the parties' agreement. Id. at 5.

III. Union's Exception

The Union argues that the Arbitrator's award does not draw its essence from the parties' collective bargaining agreement and cannot rationally be derived from the agreement. Specifically, the Union asserts that the Arbitrator did not rely on agreement provisions which the Union argued were applicable. Union's Exception at 1.

The Union concedes that Article 10 applies only to vacancies in bargaining unit positions. However, the Union asserts that the Arbitrator should have considered Articles 1 and 12. According to the Union, Article 1 incorporates Agency regulations, including the TPPlan 335, into the agreement. The Union argues that TPPlan 335 applies to all technician positions "whether or not they are supervisory or within the bargaining unit[,]" and that, therefore, Article 1 requires that the Agency follow TPPlan 335 in filling all technician positions whether or not they are in the bargaining unit. Union's Exceptions at 3-5. Additionally, the Union argues that the Arbitrator failed to consider that Article 12 provides for a broad scope grievance procedure. Under Article 12, the Union argues that disputes concerning management's application of Agency regulations, such as TPPlan 335, are arbitrable. Id. at 5. The Union argues that by failing to consider these articles, the Arbitrator ignored the plain language of the agreement.

IV. Agency's Opposition

The Agency concedes that filling the Fabrication Foreman position was subject to the TPPlan 335. However, the Agency asserts that this error in the Arbitrator's review of the case is not relevant to his ruling on the arbitrability of the grievance. Agency's Opposition at 1. The Agency argues that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement. Therefore, the Agency requests that the Authority dismiss the Union's exception.

V. Analysis and Conclusions

We conclude that the Union has not demonstrated that the Arbitrator's award fails to draw its essence from the collective bargaining agreement.

In order for an award to be found deficient as failing to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelit