39:0702(58)AR - - Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, ILA - - 1991 FLRAdec AR - - v39 p702

[ v39 p702 ]
The decision of the Authority follows:

39 FLRA No. 58











February 19, 1991

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 Alexander Cocalis. The Arbitrator denied the grievance over the Agency's removal of the grievant from its pilot-in-training program.

The Union filed an exception to the award 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 did not file an opposition to the Union's exception.

We conclude that the Union fails to establish that the award is deficient because it is contrary to an Agency rule or regulation. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievant was removed from the Agency's pilot-in-training program for employees piloting ships through the Panama Canal. The grievant was removed from the program after failing his first check ride(1) for the completion of phase II of the program. A grievance was filed over the removal and was submitted to arbitration.

According to the Arbitrator, the issue before him was whether the grievant was properly removed from the program. The Arbitrator determined that the standard to be applied in resolving this issue was whether there existed just cause for removing the grievant from the program. The Arbitrator noted that the parties had negotiated in their collective bargaining agreement a requirement that there be "just cause" for any adverse action.(2) In the Arbitrator's view, the action taken against the grievant constituted an adverse action.

In determining that the standard contained in the parties' agreement applied, the Arbitrator rejected the position of the Union that the applicable requirements were those established by the Agency's Chief, Maritime Training and set forth in a memorandum dated April 10, 1988. The Arbitrator noted that under the requirements promulgated on April 10, 1988, a pilot can be dropped from the program in only three instances: cheating, failing two examinations, or failing two check rides. The Arbitrator recognized that under these requirements, the grievant would clearly be entitled to a second check ride. However, the Arbitrator refused to apply these requirements because they "would render the 'good cause' requirement of the Agreement meaningless." Arbitrator's Award at 11.

Applying the standard of whether there was just cause for dropping the grievant from the program, the Arbitrator found that the Agency had just cause because the Agency had established that the grievant lacked the aptitude to pilot a ship on the Panama Canal. The Arbitrator also found, in response to the grievant's contentions, that there was no evidence of any disparate treatment. Accordingly, the Arbitrator denied the grievance.

III. The Union's Exception

The Union contends that the award is deficient because it is contrary to the written rules of the Agency. The Union maintains that under the Agency's memorandum of April 10, 1988, as a minimum requirement, a pilot is entitled to two check rides. The Union argues that the Agency improperly removed the grievant because the Agency failed to follow its own rules and regulations in removing the grievant without a second check ride. Therefore, the Union asserts that by sustaining the Agency's action, the award contravenes a specific Agency rule or regulation and must be reversed.

IV. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient because it is contrary to an Agency rule or regulation. We find that the Arbitrator properly determined that the standard governing the resolution of this dispute was the standard of just cause contained in the parties' collective bargaining agreement.

In U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990)(Fort Campbell), we held that an arbitration award must conflict with a regulation that governs the matter in dispute in order to be found deficient under section 7122(a)(1) of the Statute because it is contrary to a rule or regulation. With respect to agency rules or regulations, such as the rules in this case, however, we held that when there is a conflict between a provision of a collective bargaining agreement and an agency rule or regulation that both apply to a given matter, the collective bargaining agreement will govern the disposition of the matter in dispute. In other words, we ruled that provisions that become part of a collective bargaining agreement take precedence over agency rules and regulations with respect to matters to which they both apply.

In this case, the Arbitrator concluded that there was a conflict between the parties' agreement and the April 10 rules with respect to the applicable standards for removal from the pilot-in-training program. Accordingly, we find, consistent with our decision in Fort Campbell, that the Arbitrator properly determined that the agreement took precedence and governed the resolution of the dispute. Therefore, no basis is provided for finding the award deficient as contrary to an Agency rule or regulation within the meaning of section 7122(a)(1).

In so finding, we note that the Union has contended only that the April 10 rules were controlling and has not disputed the Arbitrator's interpretation and application of the parties' collective bargaining agreement. In particular, the Union has not disputed the Arbitrator's conclusion that the grievant's removal from the program constituted an adverse action under the