[ v40 p968 ]
The decision of the Authority follows:
40 FLRA No. 82
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 Thomas Angelo 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 did not file an opposition to the Union's exception.
The Arbitrator determined that the grievance was not arbitrable under the parties' collective bargaining agreement. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, the Union's exception will be denied.
II. Background and Arbitrator's Award
The grievant is a WG-10 Instrument Mechanic whose duties include maintaining and repairing flight instruments and computers. After the Agency denied the grievant's request for reclassification of his position at the WG-11 level, the grievant filed a grievance. Relying on Article XXX of the parties' collective bargaining agreement, the grievant "claim[ed] entitlement to a temporary promotion to the WG-11 level retroactive to January, 1983[.]" Award at 7. Article XXX states in pertinent part:
Section 13. When an employee is temporarily assigned to [a] higher graded position or the grade controlling duties of a higher graded position [for] thirty (30) days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. The employee must be qualified to fill the position on a permanent basis.
Enclosure 1 to Exception at 31.
When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue before him as follows:
Whether the Arbitrator has jurisdiction to resolve this matter?
If so, whether the Grievant was assigned higher graded duties in such a way as to entitle him to rights under the Collective Agreement, law, rule or regulation. If so, what should the remedy be.
Id. at 3.
The Arbitrator stated that the initial question was whether the dispute was "the kind of classification matter that is excluded from the grievance procedure." Id. at 7. He concluded that, pursuant to Article XXXIX of the parties' agreement, classification matters which did not result in a reduction of the grade or pay of an employee were outside the scope of the grievance procedure. Article XXXIX provides in pertinent part:
Section 1. The purpose of this Article is to provide a mutually satisfactory method for the settlement of grievances . . . involving the interpretation or application of this agreement. A grievance is defined as any complaint --
a. by any unit employee concerning any matter relating to the employment of the employee.
. . . .
c. by any unit employee or by [the Union], or the Employer concerning --
(1) The effect or interpretation, or a claim of breach, of a collective bargaining agreement or
(2) Any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment.
This shall be the only procedure available to the Union, Employer and employees in the bargaining unit for the filing of such grievances.
Section 2. The only matters excluded from this procedure by the [Civil Service Reform Act] and agreement of the Union and the Employer are those concerning:
. . . .
e. The classification of any position which does not result in the reduction in grade or pay of any employee.
Enclosure 1 to Exception at 36-37.
The Arbitrator determined that classification disputes were not arbitrable unless they "involve a loss of grade or pay, or the claimed denial of a contractual guarantee of additional grade or pay." Id. at 9. According to the Arbitrator, unless a violation of the parties' agreement could be found, "there is neither a right to back pay nor jurisdictional access for an arbitrator to consider the underlying classification decision." Id. at 9-10.
The Arbitrator also concluded that Article XXX of the parties' agreement "requires some proof that an 'assignment' of higher graded duties took place, and the Agency knew, or should have known, that the assignment would produce a temporary promotion." Id. at 10 (footnote omitted). Finding no such evidence in the record, the Arbitrator determined that there was no contractual violation enabling him to "reach the merits of the classification decision . . . ." Id. at 11. Accordingly, the Arbitrator denied the grievance "for lack of subject matter jurisdiction over a classification matter not involving a loss of pay or grade." Id. at 12.
III. The Union's Exception
The Union argues that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. The Union asserts that the Arbitrator "misinterpreted the meaning and intent" of Section 3 of Article IV; Section 13 of Article XXX; and Sections 1a, 1c, and 2e of Article XXXIX of the parties' agreement.(*) Exceptions at 1. The Union contends that the grievant was performing the duties of a WG-11 Instrument Mechanic for more than 30 days, because he was "misassigned" to the position. Id.
IV. Analysis and Conclusions
To establish that an award is deficient because it does not draw its essence from a collective bargaining 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 infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213, 1216 (1990) (DOT, Maritime Administration).
These tests and the private sector cases from which they are derived make it clear that an award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The interpretation of a collective bargaining agreement is left solely to the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576.
In this case, the Arbitrator interpreted Article XXX of the parties' agreement as requiring "some proof that an 'assignment' of higher graded duties took place, and the Agency knew, or should have known, that the assignment would produce a temporary promotion." Award at 10 (footnote omitted). Nothing in the Arbitrator's interpretation of the parties' agreement is irrational or implausible, or evidences a manifest disregard for the agreement. We conclude, therefore, that the Union has failed to establish that the award fails to draw its essence from the agreement. See DOT, Maritime Administration, 35 FLRA at 1216.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
*/ Article IV, Section 3, states:
The Employer agrees that all employees in the bargaining unit will be treated fairly and equitably in the application or interpretation of agency regulations, regulations of higher authority and established procedures.
Enclosure 1 to Exception at 4