The Arbitrator considered the Agency’s argument that “matters concerning promotion procedures for supervisory positions do not involve the conditions of employment of bargaining-unit employees and are, therefore, outside the statutory duty to bargain.”^[1]  The Arbitrator also found “no language” from the parties’ agreement by which the Agency “agreed to negotiate with the Union on procedures for selection of managers.”^[2] The Arbitrator concluded that because the positions for which the grievants applied are supervisory, they are “outside the ‘conditions of employment’ subject to negotiation between the parties absent their agreement to do so.”^[3]

 

 

 

 

 

Section 7122(a)(1) of the Federal Service    Labor-Management Relations Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation.^[5] In resolving an exception claiming that an award is contrary to law, the Authority reviews any question of law raised by the exception and the award de novo.^[6] In applying the de novo standard of review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[7] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings.^[8]

 

Under Authority case law, an agency’s selections and selection procedures for filling             non-bargaining-unit positions are not subject to the parties’ negotiated grievance procedures unless the agency has elected to agree to their coverage.^[9] Consequently, the grievability of disputes over the filling of supervisory positions is a matter of contract interpretation.^[10] The Union provides no basis for finding that the Arbitrator erred, as a matter of law, in finding that the parties had not agreed to the grievability of such disputes.

 

However, an award may be deficient if it is inconsistent with a governing agency regulation.^[11] But where an agency regulation and an agreement both apply to the framed issue, the parties’ agreement will govern the dispute.^[12] In this case, the Arbitrator based her award on the language in the parties’ agreement.^[13]  Thus, even assuming that the manual is relevant, the parties’ agreement governs the disposition of this matter.^[14] Any alleged inconsistency between the Agency policy and the award does not provide a basis for vacating the award because the award is based on the parties’ agreement.  Thus, the Union’s exception does not provide a basis for finding the award contrary to the Agency policy.

 

 

The Union argues that the Arbitrator’s arbitrability determination fails to draw its essence from the parties’ agreement.^[15] To support its argument, the Union relies on a different arbitrator’s award, which found a grievance arbitrable in what the Union alleges were analogous circumstances involving similar language in the parties’ agreement.^[16] 

 

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.^[17] For an arbitrator’s award to be found deficient as failing to draw its essence from a collective-bargaining agreement, it must be established 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.^[18] The Authority and the courts defer to arbitrators in this context “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”^[19] 

 

Extending a negotiated grievance procedure’s scope to cover the filling of supervisory positions is a permissive subject of bargaining.^[20] The Arbitrator found that there is no evidence that the Agency elected to negotiate over such coverage.^[21] The Union does not challenge the Arbitrator’s factual findings as nonfacts. Moreover, the Union’s reliance on the award of a different arbitrator is misplaced, because the awards of arbitrators are neither precedential nor binding upon other arbitrators.^[22]  The Union has not demonstrated that the Arbitrator’s conclusion that the grievances in this case are not arbitrable manifests a disregard of the parties’ agreement or is implausible, irrational, or unfounded. 

 

 

 

 

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