[ v49 p651 ]
The decision of the Authority follows:
49 FLRA No. 61
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
OVERSEAS FEDERATION OF TEACHERS
March 30, 1994
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 Susan T. MacKenzie 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 Arbitrator denied a grievance contesting the Agency's refusal to retroactively appoint the grievant to a full-time teaching position. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant applied for both a full-time and a substitute teaching position at the Rota Elementary School in Rota, Spain. The grievant was told by the principal of the school that she could be hired only as a substitute teacher because her college transcript did not show that she had completed a course required for a full-time appointment. The grievant was appointed to a substitute teaching position on August 19, 1992. Subsequently, the grievant demonstrated that she had satisfied the course requirement and, on September 10, 1992, the grievant was offered, and accepted, an appointment to a full-time teaching position.
The Union filed a grievance over the Agency's failure to make the full-time appointment retroactive to August 19, 1992. When the grievance was not resolved, it was submitted to arbitration on the following issues as formulated by the Arbitrator:
Is the Union barred by Article 4, Section 1 of the collective bargaining [a]greement and/or law or regulation from processing this grievance through arbitration?
If not, is the grievant . . . entitled to be paid as an elementary teacher with one full year of service, effective 19 August 1992?
Award at 1.(1)
The Arbitrator found that, but for the principal's mistake concerning the grievant's qualifications, she would have been appointed to a full-time position on August 19, 1992. The Arbitrator also found that the grievant was offered and accepted appointment to a substitute position pending resolution of questions concerning her qualifications. According to the Arbitrator, "[a]bsent an appointment to the full[-]time position . . . grievant, even as a qualified applicant, had no vested right to the position." Id. at 11 (footnote omitted).
The Arbitrator stated that, pursuant to Article 4, section 1 of the parties' collective bargaining agreement, management retains the right to make appointments. The Arbitrator also stated that, pursuant to Article 31.3 of the parties' agreement, grievances concerning appointments are excluded from the scope of the parties' grievance procedure.(2) The Arbitrator concluded that sustaining the grievance would require the Arbitrator to "ignore or alter the clear and unequivocal language of Article 4.1 and related statutory provisions." Id. at 12. According to the Arbitrator, she was without authority to do so because of "the limitations on arbitral jurisdiction set forth by the parties in Article 33 . . . ." Id.(3) As such, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator erroneously concluded that the grievance involved an appointment. The Union claims that the grievant's appointment was accomplished on August 19, 1992, and that the Agency's subsequent action in changing the grievant's appointment category from substitute to full-time was ministerial. The Union relies, in this connection, on cases involving career-ladder promotions. The Union also contends that, as the grievant was qualified for a full-time position on August 19, 1992, the Agency's placement of the grievant in the substitute position was contrary to an Agency regulation and constituted an unjustified and unwarranted personnel action which entitles the grievant to relief under the Back Pay Act. Finally, the Union contends that the award conflicts with Authority precedent establishing that conversions from temporary to permanent positions are arbitrable.
The Agency contends that the Union's exceptions are an attempt to relitigate the case before the Authority and do not demonstrate that the award is deficient.
IV. Analysis and Conclusions
A. The Award Draws Its Essence from the Agreement
We construe the Union's assertion that the Arbitrator erred in concluding that the grievance involved an appointment as a claim that the award fails to draw its essence from the parties' agreement. To find an award deficient on this ground, the party alleging this deficiency must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See American Federation of Government Employees, Local 2076 and U.S. Department of Justice, Immigration and Naturalization Service, 47 FLRA 1379, 1385 (1993).
The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator noted that, as the issue before her "require[d] a determination of whether the action grieved constitute[d] an 'appointment' under Article 4.1, it . . . involve[d] the interpretation of the parties' collective bargaining [a]greement[.]" Award at 9, n.2. The Arbitrator determined that the grievance concerned an appointment which was excluded from the scope of the parties' grievance procedure by Article 31.3 of the agreement. Further, the Arbitrator concluded that, pursuant to Article 33, she was without jurisdiction to sustain the grievance because it would require that she "ignore or alter the clear and unequivocal language of Article 4.1 and related statutory provisions." Id. at 12.
It is well established that, under section 7121 of the Statute, parties "may exclude any matter from the application of the grievance procedures . . . ." For example, U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California and Air Traffic Controllers Organization, Space Positioning Optical and Radar Tracking, 44 FLRA 1242, 1245 (1992). We conclude that the Union's claim that the disputed Agency action did not involve an appointment and was not excluded from the scope of the parties' grievance procedure constitutes mere disagreement with the Arbitrator's interpretation of the agreement. As such, the exception provides no basis for finding the award deficient. See U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen & Schedulers Association, Local 5, 48 FLRA 1372, 1376 (1994).
B. The Award Does Not Conflict With Authority Precedent
We construe the Union's assertion that the award conflicts with the Authority's decision in U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 45 FLRA 1411 (1992) (DODDS), as an exception that the award is contrary to law. In DODDS, the Authority found that the conversions of certain teachers from temporary to permanent positions under an applicable regulation did not constitute appointments. The Arbitrator found that, unlike DODDS, this case did not involve such a conversion but, rather, involved two separate appointments, one to a substitute and one to a full-time position. See Award at 10. In view of the Arbitrator's finding, which has not been shown to be erroneous or otherwise deficient, we reject the Union's argument that the award is contrary to Authority precedent involving conversions from temporary to permanent positions. See, for example, U.S. Department of Defense, Dependents Schools and Overseas Education Association, 48 FLRA 1379, 1382-83 (1994).
C. The Award Is Not Contrary to an Agency Regulation
The Union claims that the Agency's placement of the grievant in the substitute teaching position violated an Agency regulation contained in the Overseas Opportunities for Educators Guidebook for School Year 1992-93 (Guidebook). It is well settled that a party contending that an award is deficient as contrary to an agency regulation bears the burden of ensuring that the record contains sufficient information for the Authority to render a decision on that issue. See American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress, 48 FLRA 1021, 1029 (1993) (Library of Congress). Here, the Union has neither provided the Authority with a copy of the Guidebook nor presented any evidence that the Guidebook constitutes an Agency regulation. Moreover, according to the Agency, the Guidebook does not constitute an Agency regulation but, rather, is an "informational brochure which is used primarily as a recruitment tool." Opposition at 5. As such, we conclude that the Union has not demonstrated that the award conflicts with an Agency regulation. See Library of Congress, 48 FLRA at 1029.
D. The Award Is Not Contrary to the Back Pay Act
Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay is authorized only when an arbitrator finds, among other things, that an aggrieved employee was affected by an unjustified or unwarranted personnel action. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 221, 223 (1993).
The Arbitrator determined that, based on the parties' agreement, the grievance was not arbitrable. The Arbitrator made no findings with respect to the merits of the case and, as such, did not find that the Agency violated law, rule, regulation or the parties' agreement. Absent such a finding, there is no basis on which to conclude that the grievant suffered an unjustified or unwarranted personnel action, within the meaning of the Back Pay Act. The Union's argument to the contrary constitutes mere disagreement with the Arbitrator's finding that the grievance was not arbitrable, and provides no basis for finding the award deficient. See, for example, National Gallery of Art, Washington, D.C. and American Federation of Government Employees, Local 1831, 48 FLRA 841, 845 (1993).
The Union's exceptions do not demonstrate that the award is deficient. Accordingly, we will deny the exceptions.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 4, section 1 provides, in pertinent part:
By Title 5, U.S. Code 7106, the Employer is afforded the following statutory rights:
6. Management Rights
a. Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency -
. . . .
(2) in accordance with applicable laws -
. . . .
(c) with respect to filling positions, to make selections for appointments . . . .
Award at 2.
2. Article 31, section 3 provides, in pertinent part:
Those matters excluded from the negotiated grievance procedure are:
. . . .
d. Any examination, certification, or appointment.
Award at 3.
3. Article 33 provides in pertinent part:
a. In rendering a decision/award, the arbitrator has authority to:
(1) Resolve questions of arbitrability.
(2) Interpret and define the terms of the Agreement.
(3) Rule on the application of law and regulation to the Agreement and the Parties' obligation and responsibilities thereunder.
b. The arbitrator shall have no authority to alter, amend, add to or subtract from the negotiated Agreement. He/she shall be bound by and must comply with all the terms of the Agreement.
Exceptions, Attachment 3 at 67.