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The decision of the Authority follows:
39 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
RESERVE PERSONNEL CENTER
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 8, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Fred L. Hoffmeister 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 and the Union filed a response to the Agency's opposition.(1)
A grievance was filed disputing the Agency's rejection of the grievant's request for a lateral reassignment. The Arbitrator determined that the Union failed to timely file the grievance at the second step of the parties' negotiated grievance procedure and dismissed the grievance.
For the following reasons, we conclude 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
A grievance was filed disputing the Agency's rejection of the grievant's request for a lateral reassignment. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated that the issue before him was whether the steps in the parties' negotiated grievance procedure had been followed in a timely manner.(2)
Before the Arbitrator, the Agency argued that the grievance was not timely filed at the second step of the parties' negotiated grievance procedure. The Union maintained that pursuant to an agreement between the parties, as reflected in a December 4, 1989, letter from an Agency official to the Union's president (hereinafter the December agreement), the time limits for filing the grievance at the second step had been waived.(3)
The Arbitrator rejected the Union's argument that the time limit for filing the grievance at the second step had been waived by the parties' agreement, as incorporated in the Agency letter. The Arbitrator found, in this regard, that the grievance did not constitute a management-initiated action and, in addition, that a lateral reassignment did not constitute either a management-initiated action or a personnel action. Accordingly, the Arbitrator concluded that as the grievance was not timely filed at the second step, the grievance should be denied. Noting that the Agency had offered the grievant priority consideration for the next appropriate vacancy, the Arbitrator, as his award, stated:
Grievance denied. However, [the] grievant . . . is again offered "priority consideration." It is appropriate and is granted.
Award at 4.
III. Positions of the Parties
The Union argues that the award is deficient because it is inconsistent with the Statute and relevant provisions of the Federal Personnel Manual (FPM) and Agency regulations.
The Union argues first that the grievance was timely filed at the second step of the negotiated grievance procedure because the applicable time limits had been waived by the parties. The Union asserts that the time limits were waived pursuant to the parties' December agreement and because the parties had a separate "gentleman's agreement" that time limits would be waived for members of the Union's bargaining team, including the grievant, during contract negotiations. According to the Union, the Arbitrator's failure to enforce the parties' agreements violates section 7116(a)(5) and (b)(5) of the Statute.
The Union also argues that the Arbitrator's statement that lateral reassignments do not constitute management-initiated actions or personnel actions is inconsistent with provisions in the FPM and Agency regulations. The Union states, in this regard, that the Arbitrator was misled by the Agency's representative.
The Agency argues that the Union has not demonstrated that the award is deficient. According to the Agency, the Union's exceptions constitute mere disagreement with the Arbitrator's award and an attempt to relitigate the merits of the grievance before the Authority.
IV. Analysis and Conclusions
As the Arbitrator denied the grievance because he determined that the grievance had not been filed timely at the second step of the negotiated grievance procedure, the award constitutes a determination of the procedural arbitrability of the grievance. Disagreement with arbitral determinations concerning procedural arbitrability do not demonstrate that an award is deficient under section 7122(a) of the Statute. See, for example, U.S. Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 973, 977 (1990).
Moreover, even if the award did not concern procedural arbitrability, the Union has not demonstrated that the award is deficient. In this regard, we construe the Union's exceptions alleging that the Arbitrator erred in failing to enforce the parties' agreements to waive the applicable time limits as contentions that the award fails to draw its essence from the parties' agreements. To demonstrate that an award fails to draw its essence from an 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 or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 933 (1990).
The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator specifically addressed, and rejected, the Union's argument that the time limits applicable to filing the grievance at the second step of the negotiated grievance procedure had been waived pursuant to the parties' December agreement. The Arbitrator concluded, in this regard, that the grievance was not encompassed by that agreement because the grievance was not a management-initiated action. Nothing in this interpretation of the December agreement is irrational or implausible. There is, therefore, no basis on which to conclude that the award fails to draw its essence from that agreement.
Similarly, the Union has not demonstrated that the award fails to draw its essence from the parties' alleged "gentleman's agreement" to waive certain time limits during the parties' contract negotiations. Exceptions at 4. It is apparent, in this regard, that the Arbitrator was aware that the grievant was a member of the Union's bargaining team. In fact, the Arbitrator noted that an extension of time had been granted the grievant at the first step of the grievance procedure on that basis. The Union has not shown that the Arbitrator's failure to find a waiver of time limits, based on this agreement, at the second step of the grievance procedure is irrational or implausible. Accordingly, we conclude that the award does not fail to draw its essence from that agreement.
Finally, the Union's exception to the Arbitrator's statement that a lateral reassignment is not a management-initiated or personnel action does not provide a basis for finding the award deficient. The Arbitrator determined, based on his interpretation of the December agreement, that the grievance was not a management-initiated action and, as such, was not encompassed by that agreement. Nothing in the award indicates that, in reaching this conclusion, the Arbitrator relied on his characterization of the reassignment underlying the grievance. Accordingly, the Union's assertion that, consistent with applicable regulations, a reassignment is "a personnel action, although . . . not agency initiated" does not demonstrate that the award fails to draw its essence from the parties' agreement or is otherwise deficient. Exceptions at 3.
The Union has not demonstrated that the award is inconsistent with the Statute or is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, the exceptions will be denied.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. As the Authority's regulations do not provide for the filing of a response to an opposition to exceptions, the Union's response has not been considered.
2. Section 12 of the parties' negotiated grievance procedure provides, in relevant part:
Failure of the Employee or the representative to observe the time limits provided for herein, shall constitute termination of the grievance. The Union shall not be held responsible in the event an unrepresented employee fails to observe the time limits or to submit a timely request for an extension.
Award at 3-4 (emphasis omitted).
3. In pertinent part, the letter provides:
In response to the Union's initiative to promote a harmonious Christmas Season, Management will take the following steps. When possible, management will delay initiating or rendering decisions on negative actions against [Union] bargaining unit employees from 1 December 1989 through 1 January 1990. Most conduct and performance based actions will be postponed.
Attachment to Union's Exceptions denoted as Union Exhibit 6.