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53 FLRA No. 97

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0-AR-2965

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DECISION

January 26, 1998

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Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Stanley H. Sergent 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 concluded that the Agency did not commit a prohibited personnel practice by removing the grievant from the selection list for promotion. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant was an air traffic controller at the Macon Air Traffic Control Tower when he became involved in a "verbal altercation," in which he threatened the life of a co-worker. Award at 4, 11-12. At the time of the altercation, the grievant's name was on a selection list for promotion to a GS-13/14 position at the Atlanta Air Traffic Control Tower. The grievant suffered two repercussions as a result of the altercation. First, the Air Traffic Manager issued an oral reprimand. Second, the selecting official for the position in Atlanta conducted an investigation of the altercation, and concluded that the grievant should not remain on the selection list for the position in Atlanta. Id. at 5. Accordingly, the selecting official removed the grievant's name from the selection list. Id.

The employee filed a grievance contesting the removal of his name from the selection list. When the grievance was not resolved, it was submitted to the Arbitrator. Before the case reached the Arbitrator, the grievant was promoted to the Atlanta Air Traffic Control Tower pursuant to a different vacancy announcement. He sought at arbitration to recover back pay for the period beginning when he would have been promoted under the original vacancy announcement, and ending when he was promoted under the new vacancy announcement for the Atlanta Air Traffic Control Tower. Id. at 7.

The Arbitrator defined the issue in the following way:

Did the Agency violate any law, rule, regulation, or contract provision or otherwise commit a prohibited personnel practice when it removed the grievant from the selection list for promotion to GS-13/14 Air Traffic Control Specialist under vacancy announcement ASO-95-B-031 on July 19, 1995? If so, what shall the remedy be?

Id. at 7. As relevant here, the parties stipulated that: "[t]he grievant was selected for promotion to GS-13/14 under vacancy announcement, ASO-95-B-031[;]" and that subsequently "[t]he grievant's name was ordered removed, by the selecting official, from the selection list . . . as a result of the . . . altercation." Id. at 4.

Among the Union's arguments that remain pertinent, the Union asserted before the Arbitrator that the removal of the grievant's name from the selection list constituted a violation of law and the collective bargaining agreement. The Union maintained that the Agency could not remove the grievant's name from the selection list because placement on the selection list made the selection final. Additionally, the Union asserted that the reprimand and the removal of the grievant's name from the selection list constituted prohibited personnel practices, as defined in the parties' collective bargaining agreement and 5 U.S.C. § 2302(b).⁽¹⁾ Id. at 10.

While recognizing the parties' stipulation that the grievant had been selected for the position, the Arbitrator stated that a selection for the position "remain[s] tentative until an official notification of the selection was initiated by management and given to the selectees." Id. at 6. The Arbitrator found that the Agency could remove the grievant's name from the selection list as long as management had not signed and dated a Standard Form-52 and provided a copy of that document to the personnel office before the date of the personnel action. Id. The Arbitrator also stated that, consistent with National Treasury Employees Union v. Reagan, 663 F.2d 239 (D.C. Cir. 1981) a selection for federal employment is not complete until two tests are met: "the person claiming entitlement (1) must have been appointed to the position by one with the authority to make such appointment and (2) must have entered on duty in that position." Award at 15.

The Arbitrator found that the grievant had never received a Standard Form-52 officially notifying him of his selection for the Atlanta position. Moreover, based on NTEU v. Reagan, the Arbitrator stated that the Agency had not acted arbitrarily because even if management had provided the personnel office with a signed and dated SF-52, the Agency could still lawfully revoke the selection before the grievant began performing the duties of the position.

The Arbitrator also found that, pursuant to section 347(b)⁽²⁾ of the Department of Transportation and Related Agencies Appropriations Act of 1996, section 2302(b)(2) does not apply to the FAA. Hence, the Arbitrator concluded that the Union could not rely on this section to argue that the Agency had committed a prohibited personnel practice. Id. at 11.

In sum, the Arbitrator determined that when the Agency removed the grievant's name from the selection list, the Agency did not violate the collective bargaining agreement, or any statute, regulation, or case law.

III. Positions of the Parties

A. The Union

The Union excepts to the Arbitrator's award on two grounds.

In its first exception, the Union asserts that the award has "no substantial evidence" to support it, because the Arbitrator "disregarded the stipulated facts[.]" Exceptions at 3. According to the Union, the Arbitrator's finding that the grievant's selection was only tentative conflicts with the parties' stipulations. The Union maintains that "[n]owhere in the stipulated facts . . . do the parties address [the] selection as tentative." Id.

In its second exception, the Union contends that section 347 of the 1996 Department of Transportation and Related Agencies Appropriations Act did not remove section 2302(b)(2) from the Federal Aviation Administration Personnel Management System. According to the Union, because section 2302(b)(2) applies, the Arbitrator should have found that the Agency committed a prohibited personnel practice when it allowed the selecting official to solicit information about the altercation from those who had witnessed it. Id. at 4-5. In addition, the Union contends that the Arbitrator should have applied the Back Pay Act to provide the grievant back pay in this case. Id. at 6.

B. The Agency

In response to the Union's contention that the Arbitrator ignored the stipulated fact that the grievant had been selected for promotion, the Agency argues that the Arbitrator correctly found that the "regulatory and administrative requirements" necessary for "effectuat[ing]" the promotion had not yet occurred. Opposition at 4.

The Agency also opposes the Union's assertion that the 1996 Department of Transportation and Related Agencies Appropriations Act did not remove section 2302(b)(2) from the Federal Aviation Administration Personnel Management System. The Agency asserts that section 347(b)(1) states that only the whistleblower sections of section 2302(b) remain within the Agency's personnel system and that section (b)(2) is not a whistleblower section. Even assuming that the section applies, however, the Agency asserts that the case law of the Merit Systems Protection Board holds that, under section 2302(b), an agency is prohibited only from receiving politically influenced recommendations.

Finally, the Agency describes as baseless the Union's claim that the Arbitrator misapplied the Back Pay Act.

IV. Analysis and Conclusions

1. The Award is Not Based on a Nonfact

The Union argues that the Arbitrator's award lacks "substantial evidence," because the Arbitrator ignored the stipulation concerning the grievant's selection. Exceptions at 3. We construe this as an assertion that the award is based on a nonfact. To establish that an award is based on a nonfact, the excepting party must demonstrate that a 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). A party may not raise nonfact allegations concerning a matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

Although the parties did stipulate that the grievant had been selected, they did not stipulate that he had been selected irrevocably. The issue of whether the selection was irrevocable or tentative was clearly disputed below. See Award at 6, 14. Accordingly, this exception does not establish that the award is based on a nonfact, and we deny this exception.

2. The Award is Not Contrary to Law

The Union asserts that the Arbitrator's award is contrary to law because the Arbitrator did not acknowledge that section 347 of the Appropriations Act incorporates section 2302(b)(2) in the FAA Personnel Management System. Questions of law raised by the award and the Union's exception must be reviewed de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).

Section 2302(b)(2) states that employees in positions of authority may not solicit recommendations concerning any person under consideration for a personnel action under the circumstances listed in 5 U.S.C. § 3303(b). However, they may solicit recommendations under the exceptions specified under 5 U.S.C. § 3303(f).⁽³⁾ The exceptions stated in section 3303(f), which do not prohibit recommendations in order to determine the capacity of an employee to perform the requirements of a job, apply in this case. In this regard, the Arbitrator specifically found that the selecting official requested the information in order to determine the grievant's fitness for promotion. Award at 5. There is no contention that the information regarding the altercation injected political influence into the promotion process.

Additionally, as the Agency noted, relevant Federal Circuit case law and Merit Systems Protection Board case law uniformly holds that section 2302(b)(2) applies to cases in which a person, referred to in section 3303(b), without personal knowledge of an employee's character or work habits, attempts to use political influence in the promotion or selection of an employee. These circumstances are not present in a case in which a selection official interviews people with personal knowledge of an employee's misconduct. See Depte v. United States, 715 F.2d 1481 (Fed. Cir. 1983); Fike v. I.R.S., Department of the Treasury, 10 MSPR 113, 117 (1982); Littlejohn v. U.S. Postal Service, 25 MSPR 478, 480 (1984); Woodward v. Department of the Interior, 40 MSPR 649, 654 (1989).

In view of the foregoing, we conclude that the Arbitrator's finding that the selecting official did not violate section 2302(b)(2) is not contrary to law. Award at 11. Because inclusion or exclusion of section 2302(b)(2) in the FAA Personnel Management System makes no difference to the result in this case, it is unnecessary to determine whether section 347 of the Appropriations Act removed that section from the personnel system.

Lastly, because the Agency did not engage in an unjustified personnel action, there is no basis to provide the grievant with back pay.

V. Decision

The Union's exceptions are denied.

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

1. The parties' collective bargaining agreement uses the definition of "prohibited personnel practice" found in section 2302(b). The pertinent subsection of section 2302(b) states that employees in positions of authority may not do the following with regard to employees under their authority:

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f)[.]

2. Section 347(b)(1) states, in pertinent part, that the provisions of title 5, United States Code, "shall not apply" to the new personnel management system "with the exception" of "section 2302(b), relating to whistleblower protection[.]"

3. Chapter 33 of Title 5 concerns "Examination, Selection, and Placement" in the Civil Service and Competitive Service. Within that chapter, section 3303 pertains to prohibited political recommendations. Subsections (b) and (f) state:

(b) Except as provided under subsection (f), each personnel action with respect to an employee or applicant shall be taken without regard to any recommendation or statement, oral or written . . . made by--

(1) any Member of Congress or congressional employee;

(2) any elected official of the government of any State (including the District of Columbia and the Commonwealth of Puerto Rico), county, city, or other subdivision thereof;

(3) any official of a political party; or

(4) any other individual or organization making such recommendation or statement on the basis of the party affiliation of the employee or applicant.

. . . .

(f) An agency, or any authorized officer or employee of an agency, may solicit, [and] accept . . . any statement with respect to an employee or applicant who requests or is under consideration for a personnel action, if--

(1) the statement is furnished pursuant to a request or requirement of the agency and consists solely of an evaluation of the work performance, ability, aptitude, and general qualifications of the employee or applicant;

(2) the statement relates solely to the character and residence of the employee or applicant;

(3) the statement is furnished pursuant to a request made by an authorized representative of the Government of the United States solely in order to determine whether the employee or applicant meets suitability or security standards[.]

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