U.S. Department of Veterans Affairs, Medical Center, Houston, Texas (Agency) and American Federation of Government Employees, Local 1633 (Union)

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57 FLRA No. 126







December 17, 2001


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Samuel J. Nicholas, Jr. filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      In the initial award, the Arbitrator found that the grievance was arbitrable. In the merits award, the Arbitrator concluded that the Agency violated Article 22, §  8 of the parties' collective bargaining agreement and, as a remedy, ordered the Agency to promote the grievants. [n1]  For the following reasons, we conclude that the award is not deficient and deny the Agency's exceptions.

II.     Background and Arbitration Awards

      The Union filed grievances on behalf of two employees alleging that the Agency violated Article 22 of the parties' master agreement by filling positions based on pre-selection and favoritism, thereby denying the grievants an opportunity to be promoted. The parties held discussions in attempt to resolve the dispute, and the Agency agreed to -- but subsequently did not -- render a decision on the Step 2 grievance by a certain date. Thereafter, pursuant to Article 42, § 9 of the parties' agreement, the Union requested that the Agency grant the relief sought in the grievance. [n2]  Ultimately, the dispute was not resolved, and the parties submitted it to arbitration.

      At the initial hearing, the Agency moved to dismiss the grievance for lack of jurisdiction, arguing that under Article 42, § 7 of the parties' grievance procedure [n3] , the Union was required to process the grievance to Step 3 before requesting arbitration. The Arbitrator found that the Union violated the parties' agreement as alleged, but that the Agency also violated the parties' agreement by not responding timely to the Step 2 grievance. The Arbitrator concluded that these mutual errors should not preclude review on the merits.

      Subsequently, a hearing was held on the merits where the Arbitrator set forth the following issue: "Did [the] Agency violate the [parties' a]greement, namely Article 22, by its failure to promote the herein named [g]rievants?" Merits Award at 1. Specifically, the Union contended that the Agency violated Article 22 by unilaterally placing individuals in positions, thereby denying other employees the opportunity to be considered. See Opposition at 2-3; Exceptions, Exhibit 4. The Arbitrator found that the Agency, in its many discussions with the Union, agreed to "adhere to the mandated wording and intent of the language specified in Article 22, Section 8" of the parties' agreement. Merits Award at 2. The Arbitrator concluded that the Agency did not adhere to this provision and ordered that the grievants be promoted to GS-12 Computer Specialists. [ v57 p654 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      According to the Agency, both awards fail to draw their essence from the parties' agreement. With respect to the initial award, the Agency claims that the grievance should have been dismissed for lack of jurisdiction because the Union was required to go to Step 3 of the grievance procedure before going to arbitration. With respect to the merits award, the Agency asserts that the Arbitrator ignored Article 22, §§ 6 and 7 of the parties' agreement [n4] , which allow the Agency to make certain non-competitive appointments. According to the Agency, the positions disputed by the grievants were filled non-competitively in accordance with either § 6 or § 7.

      The Agency also asserts that its actions were consistent with 5 C.F.R. § 335.102 and § 302.103. [n5]  Accordingly, the Agency asserts that the award violates 5 C.F.R. part 335.

B.     Union's Opposition

      According to the Union, the Arbitrator's interpretation of Article 22 of the parties' agreement, entitling the grievants to priority consideration, is reasonable and consistent with the plain language of the agreement. Also, according to the Union, the Agency's assertions with respect to 5 C.F.R. part 335 are conclusory.

IV.     Analysis and Conclusions

A.     The Awards Do Not Fail To Draw Their Essence from the Parties' Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find an arbitration award deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. <