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52 FLRA No. 145

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 260

(Union)

and

FEDERAL DEPOSIT INSURANCE CORPORATION

SOUTHWEST FIELD OFFICE

ADDISON, TEXAS

(Agency)

0-AR-2761

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DECISION

May 30, 1997

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Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Donald P. Goodman 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 denied a grievance over the Agency's failure to temporarily promote the grievant on the ground that the grievance involved a classification matter and, therefore, was not arbitrable.

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

II. Background and Arbitrator's Award

The grievant, a GS-4 Clerk-Typist, submitted a claim under Addendum IV of the parties' collective bargaining agreement seeking payment for performing the duties of a higher-graded position.⁽¹⁾ The Agency denied the claim. Thereafter, the employee filed a grievance alleging that the Agency violated Article 15 of the parties' agreement by failing to temporarily promote her for performing the duties of a GS-5 Secretary.⁽²⁾ The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issues as follows:

1. Is the matter a classification issue and thus not grievable?

2. Is the grievance not arbitrable in that it is time barred having not been filed within 20 days from the date the contract violation is alleged to have occurred?

3. Did the Agency violate Article 15 Section 2A of the [agreement] when it failed to temporarily promote the [g]rievant? If so, what is the proper remedy?

Award at 2.

Addressing the timeliness issue first, the Arbitrator determined that because the grievance constituted a continuing grievance, the 20-working day time limit for filing a grievance under Article 48 did not bar the grievance and, therefore, the grievance was timely filed.⁽³⁾ Based on Article 15 of the agreement, set forth above at note 2, the Arbitrator found that the agreement limited any available retroactive remedy to a period of 25 days prior to the filing of the grievance.

On the classification issue, the Arbitrator addressed whether "the grievance [was] a classification matter and thus not arbitrable under Article 48, Section 1 A 4 e" of the parties' collective bargaining agreement.⁽⁴⁾ Id. at 4. The Arbitrator concluded that in order to grant the grievance, which alleged a violation of Article 15, he would be required to reclassify the grievant's current position from Grade 4 to Grade 5, and that he had no authority to do so. The Arbitrator determined that Article 15 applied to details to higher-graded positions, but found that the grievant had not been detailed to a higher-graded position and that no GS-5 position existed in the section in which the grievant worked to which she could have been detailed. Accordingly, the Arbitrator concluded that the grievance involved a classification matter and was not arbitrable. Therefore, he denied the grievance.⁽⁵⁾

III. Exceptions

A. Union's Contentions

The Union excepts to the Arbitrator's conclusion that the grievance involves the classification of a position and, therefore, is not arbitrable. The Union contends that this aspect of the award does not draw its essence from the agreement, is inconsistent with law, rule, and regulation, and is based on a nonfact. In this regard, the Union asserts that the Arbitrator erred when he found that there was no position into which the grievant could have been detailed. The Union argues that "[t]he rule of law is clear, there only need exist a classified position in the agency for which the [g]rievant qualifies in order to establish a higher-graded duties grievance." Exceptions at 14. In support, the Union cites U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1558-59 (1992) (Fort Polk) and U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542, 548-50 (1990) (Forest Service).

With respect to the Arbitrator's statement that a grievance over the Agency's denial of the claim under Addendum IV would have been grievable, the Union argues that this aspect of the award is deficient because the Arbitrator decided an issue that was not before him.

Finally, the Union excepts to the 25-day limitation imposed by the Arbitrator on any remedy available to the grievant. The Union contends that this aspect of the award is deficient because it is inconsistent with law, rule, and regulation and fails to draw its essence from the parties' agreement.

B. Agency's Opposition

The Agency contends that the Arbitrator properly interpreted Article 15 of the agreement in finding that the grievance involved a classification matter that was not arbitrable under Article 48, Section 1.A.4.e of the parties' agreement. The Agency also contends that Authority precedent supports the Arbitrator's determination limiting any available remedy to a period of 25 days prior to the filing of the grievance.

IV. Analysis and Conclusions

A. The Award Is Consistent with Law, Rule, and Regulation and Draws Its Essence from the Agreement

Section 7121(c) of the Statute sets forth mandatory exclusions from grievance and arbitration procedures. The parties may not include these matters in such procedures. See American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 51 FLRA 1140, 1142 (1996). However, parties are free to exclude "any matter" from the scope of grievance and arbitration procedures, in addition to those matters mandatorily excluded by section 7121(c). 5 U.S.C. § 7121(a)(2). That is, parties may define through bargaining the scope of the grievance and arbitration procedures and the parties expressly are permitted to exclude matters whose exclusion is not required by the Statute. For example, U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 48 FLRA 612, 619 (1993).

The grievance in this case alleged a violation of Article 15, which governs claims concerning details to higher-graded positions. Addendum IV of the parties' agreement governs claims concerning the performance of higher-graded duties. The Arbitrator interpreted the agreement as excluding from the application of Article 15 grievances over the performance of higher-graded duties. The Arbitrator concluded that no remedy was available to the grievant under Article 15 because the grievant had not been detailed to a higher-graded position and there was no such position available to which the grievant could have been detailed. Accordingly, the Arbitrator found, consistent with the Agency's contention, that the grievance involved a classification matter that was not arbitrable under Article 48, Section 1.A.4.e of the parties' agreement.

The Arbitrator's conclusion that the grievance involved a classification matter that was not arbitrable is based on his interpretation and application of Articles 15 and 48 of, as well as Addendum IV to, the parties' agreement. The Union has failed to demonstrate that the Arbitrator's findings are implausible, unfounded, irrational or manifest a disregard for the agreement. Consequently, the Union has not demonstrated that the award is deficient on the basis that it fails to draw its essence from the agreement. See, e.g., American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 52 FLRA No. 141, slip op. at 3-4 (1997); U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990).

Because parties can agree to exclude any matter from coverage of grievance procedures, and because the Arbitrator's conclusion that the parties agreed to exclude grievances over the performance of higher-graded duties from application of Article 15 draws its essence from the agreement, the award is not inconsistent with the Statute. In this regard, the Union's reliance on Authority precedent is misplaced. Nothing in Forest Service or Fort Polk required the Arbitrator in this case, as a matter of law, to interpret Article 15 to find that the grievance was arbitrable. Rather, the Arbitrator's determination that the grievance was not arbitrable was based on his interpretation of the parties' agreement, and because his interpretation draws its essence from the agreement, it is not contrary to the Statute.

B. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).

The Union has not established that the Arbitrator's statements that the grievant failed to pursue a claim under Addendum IV of the agreement, and that "the Union failed to pursue a higher-graded duties claim form as required by [Addendum IV of] the parties' [a]greement[,]" constituted "facts" underlying the award. Exceptions at 11. The Arbitrator concluded that a grievance over the denial of a claim under Addendum IV would have been arbitrable, but that the grievance submitted to arbitration under Article 15 of the agreement was not arbitrable because the grievant had not been detailed. The Arbitrator's conclusion resulted from his interpretation of the parties' agreement as applied to the evidence presented and, as such, cannot be challenged as a nonfact. See U.S. Department of Defense Dependents Schools, Arlington, Virginia and Overseas Education Association, 52 FLRA 3, 10-11 (1996). Accordingly, the Union has not demonstrated that the award is deficient because it is based on a nonfact, and the exception is denied.

C. The Arbitrator Did Not Exceed His Authority

We construe the Union's exception that the Arbitrator decided an issue that was not before him as a contention that the Arbitrator exceeded his authority. It is well-established that arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. E.g., Sport Air Traffic Controllers Organization and U.S. Department of the Air Force, Headquarters, Air Force Flight Test Center, Edwards Air Force Base, California, 51 FLRA 1634, 1638 (1996).

In this case, the parties did not stipulate the issues to be resolved and the Arbitrator framed the issues. As framed, the issues required the Arbitrator to interpret the parties' agreement to determine whether the grievance was arbitrable. In resolving the grievance, the Arbitrator examined Addendum IV, which is part of the agreement. In interpreting the agreement and making his award, the Arbitrator did not exceed his authority. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647-48 (1996).

V. Decision

The Union's exceptions are denied.⁽⁶⁾

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

1. Addendum IV of the agreement states in relevant part:

The [Agency] agrees to compensate . . . employees who have been detailed to perform higher-graded work for more than thirty (30) days, provided that the employee can establish that he or she performed at the higher grade.

Agency's Opposition, Attachment A at 155.

2. Article 15 of the agreement states in relevant part:

Section 2A. The [Agency] agrees that a qualified employee who is detailed to a position of higher grade for more than twenty-five (25) consecutive calendar days will be temporarily promoted to that position and receive the rate of pay for the position to which he or she is temporarily promoted retroactively effective on the day the detail began.

Award at 3.

3. Article 48 of the agreement states in relevant part:

Section 5A. Step One. 1. The employee must present a written grievance . . . within twenty (20) working days from the date of the action giving rise to the grievance or twenty (20) working days after the employee becomes aware of the action.

Award at 3.

4. Article 48, Section 1.A. states in relevant part:

A grievance means any complaint

. . . .

4. except that this Article shall not apply with respect to a grievance concerning:

. . . .

e. the classification of any position which does not result in the reduction in grade or pay of any employee[.]

Id.

5. The Arbitrator stated that a grievance over the Agency's denial of the employee's claim under Addendum IV of the agreement would have been grievable.

6. In light of this decision, we need not address the Union's remaining exception regarding the duration of the remedy that would have been available had the grievant prevailed.

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