46:0688(65)AR - - AFGE Local 2204 and Army, Fort Hamilton, NY - - 1992 FLRAdec AR - - v46 p688

[ v46 p688 ]
The decision of the Authority follows:

46 FLRA No. 65














November 27, 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 Bertram T. Kupsinel 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.

The grievant filed a grievance alleging that he had performed the duties of a higher-graded position without proper compensation. The Arbitrator found that the grievance was not arbitrable because it concerned a classification matter. For the following reasons, we conclude that the Union fails to demonstrate that the award is deficient. Therefore, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

In 1987, the grievant was reassigned from a Quality Control Chief WS-07 position to a Quality Assurance Specialist GS-07 position. At that time, the grievant's supervisor believed that the grievant's GS-07 position description was inaccurate and that the grievant was performing duties at the GS-09 level. After several unsuccessful attempts to rewrite the grievant's job description, the job description was rewritten in October 1990. The grievant was promoted to the GS-09 level effective December 3, 1990.

The grievant filed a grievance contesting the Agency's failure to promote him to the GS-09 level from February 7, 1987, through December 2, 1990. When the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:

Should this grievance be denied because it is not arbitrable?

Award at 2.

The Arbitrator determined that Article 15, section 4(e)(1) of the parties' collective bargaining agreement excludes from the scope of the parties' grievance procedure classification matters where there has been no reduction in the employee's pay or grade. According to the Arbitrator, "neither [the grievant's] grade nor . . . pay was reduced[]" as a result of the 1987 reassignment. Id. at 5. The Arbitrator concluded that, as the grievant's "complaint was that his [GS-07] classification was incorrect . . . [t]he claim for retroactive pay is . . . based on an erroneous classification." Id. Accordingly, based on Article 15, section 4(e), the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union contends that the grievance involved a violation of Article 8, section 9 of the parties' agreement and did not concern a classification issue.(2) The Union argues that, as "[t]he evidence submitted by the [U]nion indicated that [the grievant] was doing the work of a GS-9 Quality Assurance Specialist" and that "[t]he [A]gency should have temporarily promoted him to the GS-9 level in 1987[.]" Exceptions at 2. The Union argues that the Arbitrator "did not make his ruling in accordance with the evidence submitted and the negotiated contract." Id.

B. Agency

The Agency contends that the Union's exceptions should be dismissed because they constitute mere disagreement with the Arbitrator's decision, and are an attempt "to relitigate the issues and obtain an award on the merits of the grievance." Opposition at 2.

IV. Analysis and Conclusions

We will find an arbitration award deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation or on other grounds similar to those applied by Federal courts in private sector labor relations cases. In this case, we conclude that the Union fails to establish that the award is deficient.

The Arbitrator determined that the grievance was not arbitrable under Article 15, section 4(e) of the parties' agreement because it involved a classification issue. The Union does not claim that the award is inconsistent with section 7121(c)(5) of the Statute and there is nothing in the record on which to conclude that the award is based on an interpretation of section 7121(c)(5).(3) Compare U.S. Department of the Treasury, Customs Service, Southeast Region and National Treasury Employees Union, 43 FLRA 921, 923-26 (1992) (Customs) (award remanded to parties where the Authority was unable to determine whether arbitrator's finding that grievance was not arbitrable was based on interpretation of the parties' agreement or, as asserted by the union, the Statute). Instead, the Union claims only that the award is not in "accordance with the evidence . . . and the negotiated contract." Exceptions at 2. We note that, "[a]s a general matter," the Authority "'will not disturb an arbitrator's award that is based solely on a contract interpretation.'" Customs, 43 FLRA at 923-24 (citation omitted).

A claim that an award is "contrary to . . . evidence" provides no basis for finding an award deficient. National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226, 234 (1991). Accordingly, we will deny the Union's exception that the award is deficient because it is not in accordance with the evidence before the Arbitrator. In our view, this exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence, and, as such, is an attempt to relitigate the case before the Authority. U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas and American Federation of Government Employees, Local 2142, 42 FLRA 927, 929-30 (1991).

Similarly, we will deny the Union's exception that the award is deficient because it is not in accordance with the parties' agreement. We construe this exception as a claim that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient as failing to draw its essen