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50:0533(72)AR - - International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientist Association and NASA, Lewis Space Center, Cleveland, OH - - 1995 FLRAdec AR - - v50 p533

[ v50 p533 ]
The decision of the Authority follows:

50 FLRA No. 72

















June 22, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James W. McMullen 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator determined that a grievance concerning the nonselection of the grievant for a promotion to a nonunit position was not arbitrable under the terms of the parties' collective bargaining agreement.

For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Arbitrator's Award

The Union filed a grievance challenging the Agency's failure to select the grievant for a vacant supervisory position. The grievance was not resolved and was submitted to arbitration.

The Arbitrator concluded that the grievance was not arbitrable because the Agency's failure to select the grievant for a supervisory position was not covered by Article 24 or any other provision of the parties' agreement.(1) The Arbitrator specifically found Article 24 inapplicable to the Agency's nonselection of the grievant because that article applies, by its terms, "solely to non-supervisory positions within the Bargaining Unit." Award at 4, quoting Article 24. The Arbitrator further concluded that because the grievant sought a supervisory position not covered by Article 24 of the agreement, the grievance was not arbitrable under Article 17.(2)

The Arbitrator rejected the Union's argument that the parenthetical reference in Article 24, Section 24.17 to Article 39, Section 39.05 brings the dispute within the jurisdiction of the Arbitrator.(3) The Arbitrator concluded that "[t]he right recognized in Section 39.05 is a procedural, not a substantive, right; it does not extend the terms of Article 24 to positions outside the bargaining unit, or confer jurisdiction on the arbitrator to decide the merits of the nonselection of the Grievant . . ." for the disputed position. Id. at 5. The Arbitrator, therefore, denied the grievance.

III. Exceptions

A. Union's Contentions

The Union contends that under Article 39, Section 39.05 of the agreement, the Arbitrator has jurisdiction to decide the merits of the grievance. In addition, the Union argues that the negotiated grievance procedure set forth in Article 16 does not expressly exclude positions outside the bargaining unit from the procedure's coverage, and that Article 16, Section 16.12 of the agreement provides for submission to the Arbitrator of arbitrability questions.(4) In addition, the Union contends that the parties previously have submitted similar disputes to arbitration, thus establishing a binding past practice which should govern the matter now in dispute.

B. Agency's Opposition

The Agency contends that the Arbitrator properly interpreted the bargaining agreement. In addition, the Agency argues that because the Union did not assert before the Arbitrator a past practice of arbitrating similar disputes, the Union may not do so now before the Authority, and that, in any event, no such past practice exists.

IV. Analysis and Conclusions

A. Essence of the Agreement

We construe the Union's argument that the Arbitrator misinterpreted the parties' agreement as a claim that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from an agreement, the party making the allegation must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). The Union has not demonstrated that the award fails to draw its essence from the collective bargaining agreement under any of these tests.

The Union has not shown that it was unfounded, implausible or irrational for the Arbitrator to interpret Article 39, Section 39.05 of the agreement as setting forth a procedural rather than substantive right, and as not extending the terms of Article 24 to apply to positions outside the bargaining unit. In addition, the Union has not demonstrated that the Arbitrator's conclusion, that the Agency's nonselection of the grievant was not covered by any other provision of the agreement, is inconsistent with Article 16. Moreover, the Union has not shown that the Arbitrator's conclusion that the grievance is not arbitrable fails to draw its essence from Article 16, Section 16.12, which authorizes the Arbitrator to decide arbitrability questions. Accordingly, we deny this exception.

B. Past Practice

The Agency alleges that the Union did not raise the issue of past practice before the Arbitrator, and nothing in the Union's exceptions or the award supports a conclusion that the issue was so raised. Therefore, we conclude that the Union failed to make this argument to the Arbitrator and, under section 2429.5 of the Authority's Regulations, may not now raise it as an exception. See U.S. Department of Defense, Dependents Schools, Alexandria, Virginia and Overseas Education Association, 41 FLRA 982, 999 (1991).

Even if the issue of past practice were properly before the Authority, the Union has presented no evidence of a past practice of arbitrating similar disputes. Moreover, even if the Union had presented such evidence, the Arbitrator would not be bound by awards resolving other disputes. Arbitration awards are not precedential, and, therefore, a contention that an award conflicts with other arbitration awards provides no basis for finding an award deficient under the Statute. U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991). For the foregoing reasons, we deny this exception.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Article 24 provides, in relevant part:

Section 24.01. The parties recognize that the purpose of the merit promotion program is to assure selection from among the best qualified persons available to fill vacancies on the basis of merit, fitness, and qualifications and without regard to race, color, religion, national origin, marital status, sex, age, physical handicap, union affiliation, personal favoritism or political affiliation. The merit promotion program does not guarantee promotion, but it is intended to assure that all employees receive fair and equitable considerations for promotional opportunities.

. . .

Section 24.17. The provisions of this Article apply solely to non-supervisory positions within the Bargaining Unit. (see also Section 39.05)

Award at 3-4.

2. Article 17 provides in Section 17.01 for "arbitration of unresolved grievances concerning the interpretation and application of this Agreement," and states in Section 17.07 that "[n]o issues other than those covered by the express terms of this Agreement shall be subject to arbitration." Id. at 3.

3. Article 39, Section 39.05 provides that "[t]he parties recognize the right of employees to be represented or assisted by the Union in connection with complaints concerning a merit promotion action involving positions outside the bargaining unit." Id. at 4.

4. Article 16, Section 16.12 provides that "[q]uestions that cannot be resolved by the parties as to whether or not a grievance is on a matter subject to this grievance procedure or is subject to arbitration, may be submitted to arbitration for a grievability/arbitration determination." Exceptions at 1.