44:1242(102)AR - - Air Force Flight Test Center, Edwards AFB, CA and ATCO, Space Positioning Optical and Radar Tracking - - 1992 FLRAdec AR - - v44 p1242
[ v44 p1242 ]
The decision of the Authority follows:
44 FLRA No. 102
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
AIR TRAFFIC CONTROLLERS ORGANIZATION
SPACE POSITIONING OPTICAL AND RADAR TRACKING
May 15, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Rosalyn M. Chapman 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 exceptions.
A grievance was filed under the parties' collective bargaining agreement challenging the remedy provided the grievant in a previous grievance filed under the Agency's administrative grievance procedure. The Arbitrator found that the contractual grievance was not arbitrable.
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
After the grievant applied, and was found not qualified, for two positions, the grievant filed a grievance under the Agency's administrative grievance procedure. The Agency sustained the grievance and, as a remedy, provided the grievant priority consideration for certain vacancies. The grievant filed a grievance under the parties' collective bargaining agreement(1) challenging the remedy and, when the grievance was not resolved, it was submitted to arbitration on the following issue:
Is the remedy granted the [g]rievant . . . as the remedy for improper non-consideration, arbitrable under [the parties'] agreement?
Award at 1.
The Arbitrator concluded, as relevant here, that the remedy was not arbitrable under Article 29 of the parties' agreement because "the parties . . . never intended to allow an employee to have two "'bites of the apple' or two forums in which to grieve one complaint." Id. at 4. The Arbitrator found that the disputed remedy was "part and parcel" of the grievant's administrative grievance, which had become "final and [was], thus, resolved . . . ." Id. at 3-4. Accordingly, the Arbitrator denied the grievance.(2)
III. Union's Exceptions
The Union argues that the award is deficient because the Arbitrator "misconstrued" Article 29 of the parties' collective bargaining agreement.(3) Exceptions at 1. The Union also argues that the award conflicts with sections 7103(a)(9) and 7121 of the Statute. According to the Union, the parties intended to exclude from the scope of the negotiated grievance procedure only those matters required to be excluded by law and, as the grievance in this case is not covered by the statutory exclusions, it is grievable and arbitrable.
IV. Analysis and Conclusions
We construe the Union's contention that the Arbitrator misconstrued Article 29 of the parties' agreement as an argument that the award fails to draw its essence from the agreement. To establish that an award is deficient because it does not draw its essence from the 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 of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992).
The Union has failed to establish that the award is deficient under any of these tests. Based on her interpretation of the parties' agreement, the Arbitrator concluded that the Union's grievance was not arbitrable because the disputed remedy was not separate from the previous administrative grievance and the parties did not "intend to allow an employee . . . two forums in which to grieve one complaint." Award at 4. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, unfounded, implausible, or evidences a manifest disregard for the agreement. Instead, we conclude that the Union's argument constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. As such, it provides no basis for finding the award deficient. For example, National Association of Aircraft Examiners, Local 1 and U.S. Department of the Navy, Naval Aviation Depot, Alameda, California, 43 FLRA 268, 270-71 (1991).
We also reject the Union's claim that the award conflicts with sections 7103(a)(9) and 7121 of the Statute. We note, in this regard, that under section 7121(a)(2) of the Statute, the parties "may exclude any matter from the application of the grievance procedures . . . ." Similarly, section 7103(a)(9) of the Statute defines the term "grievance" for purposes of the Statute; that provision does not specify or mandate the scope of a negotiated grievance procedure. In this case, the Arbitrator concluded, based on her interpretation of the parties' agreement, that the grievance was not arbitrable. Compare U.S. Department of the Treasury, Customs Service, Southeast Region and National Treasury Employees Union, 43 FLRA 921 (1992) (award remanded where it was unclear whether the arbitrator determined arbitrability based on his interpretation of the Statute or the parties' agreement). As such, and as the parties are permitted under the Statute to e