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58 FLRA No. 98
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3627
(Union)
0-AR-3547
_____
DECISION
March 31, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Edward P. Goggin 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.
The Arbitrator sustained a grievance alleging improprieties in two selection actions. For the reasons set forth below, we find that the Agency has failed to establish that the award is deficient.
II. Background and Award
The grievant applied for the position of Paralegal Specialist/Analyst and the position of Lead Case Assistant/Technician. Although several selections were made for each position, the grievant was not among those selected.
The issue before the Arbitrator was:
Did the Agency violate the National Agreement, SSA National Promotion Plan, applicable Memoranda of Understanding, and binding Federal Labor Relations Authority precedent in filling the subject positions? If so, what is the remedy?
Award at 2.
The parties' agreement requires that bargaining unit employees be given first consideration, for 10 workdays, prior to consideration of other candidates. [n2] The Arbitrator found that, in filling the positions, the Agency failed to give full consideration to the initial list of bargaining unit candidates and failed to include the grievant on the list of candidates provided to the selecting official for the lead case assistant position. As to the latter, the Arbitrator found that the grievant was not given proper credit for certain past experience.
In finding that the Agency failed to comply with the agreement, the Arbitrator noted that, for both selection actions, the unit employees who were ultimately selected appeared on the first list of candidates. However, the Arbitrator found that the employees were not selected until the Agency received a second list for each position, which included additional, non-bargaining unit candidates.
More specifically with respect to the paralegal position, the Arbitrator found no apparent reason why the Agency failed to select the candidates from the first list since they were obviously qualified for the position. The Arbitrator also found that one of the candidates who was selected from the second list was not eligible to have been placed on that list at all. According to the Arbitrator, "the Agency wanted to provide an opportunity to offer the position to a pre-selected candidate, even though that candidate was not eligible under the rules governing the selection procedure." Id. at 7. In reaching this result, the Arbitrator found that, under the terms of Article 26, Section 11.F. of the parties' agreement, which requires that an employee be "promoted to the next higher grade at the beginning of the first pay period after [the] selection[,]" that candidate could not have been selected because she "was listed as GS-10, and the Paralegal position was [a]nnounced as GS-09[.]" Id. at 8.
With respect to the lead case assistant position, in addition to finding that the grievant had been improperly excluded from the list given to the selecting official, the Arbitrator found that one of the selectees was ineligible for the position because of her limited experience. [ v58 p406 ]
In sum, the Arbitrator found that both selection actions were improper. The Arbitrator directed the Agency to remove the two ineligible selectees from their respective positions, to resubmit the original list of candidates for the paralegal position and to rerun the selection process for the lead case assistant position, giving the grievant priority consideration for the latter position. The Arbitrator also recommended, "[b]ased on the manner in which the selections were handled[,]" that the selecting official come from a different regional office. Id. at 11.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is based on nonfacts, fails to draw its essence from the agreement, and exceeds the Arbitrator's authority.
First, the Agency disputes the Arbitrator's determination that the grievant did not receive first consideration for 10 workdays. The Agency asserts that the manner in which the Arbitrator calculated the 10-day period is "faulty." Exceptions at 5. The Agency also maintains that there is no requirement that the Agency select a bargaining unit candidate from the first list "before seeing the entire list of candidates[.]" Id. at 6. The Agency argues that the Arbitrator's findings as to the reasons for the Agency's selection from the second list "are in no way consistent with the facts presented or any reasonable interpretation of the . . . [a]greement." Id.
Second, the Agency disputes the Arbitrator's finding that one of the selectees for the paralegal position, who occupied a GS-10 position, was not eligible to have been placed on the list of qualified candidates for the GS-9 position. The Agency states that, although this particular employee had been temporarily promoted to a GS-10 position, the employee's permanent position was at the GS-8 level, thereby rendering her eligible to have been selected for the GS-9 paralegal position. The Agency asserts that, to the extent the Arbitrator based his decision on the employee occupying a permanent GS-10 position, the award is based on a nonfact.
The Agency further asserts that "[b]y determining that employees on temporary promotions cannot be considered for certain promotions . . . [as] similarly situated employees, whose permanent grade is the same," the Arbitrator "require[d] the selection to be based on factors that are not job-related" and "violated the requirement for equity" found in violation of Article 26, Section 1 of the parties' agreement. [n3] Id. at 9. The Agency maintains that this case is similar to a prior award of a different arbitrator in which "the permanent grade of the candidate in question was a GS-8. In both cases, the grievant argued that the candidate should not have been included on the [well qualified list]. Both cases were governed by the parties' 2000 National Agreement. Therefore, the result should also be the same." Id. at 8-9. [n4]
Third, the Agency claims that the remedy is deficient. With respect to the paralegal position, the Agency claims that because it gave first consideration to bargaining unit employees and because the disputed selectee was qualified for the position, "there is no basis to vacate the [p]aralegal selection." Id. at 10. As for the lead case assistant position, the Agency contends that since "the grievant has already been given and has accepted a priority consideration for that position[, i]t is not appropriate both to rerun the position and to grant a priority consideration." Id. The Agency asserts that an award that would both vacate the selection and provide another priority consideration to the grievant fails to draw its essence from the priority consideration provision of the parties' agreement. [n5] [ v58 p 407 ]
B. Union's Opposition
The Union contends that the Arbitrator's factual findings are supported by the record, that the award draws its essence from the agreement and that the award complies with all laws, rules, regulations and Authority precedent.
IV. Analysis and Conclusions
A. The award is not based on nonfacts
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged as a nonfact." United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 57 FLRA 489, 493 (2001).
In this case, the Agency disputes several of the Arbitrator's factual findings pertaining to the Agency's consideration of bargaining unit employees, including the timing and nature of that consideration, and the qualifications of the candidates selected. However, these facts were disputed before the Arbitrator. As such, they do not provide a basis for finding the award deficient.
More specifically, with respect to the Arbitrator's finding regarding the ineligibility of the selectee for the paralegal position, we find that the Agency has not established that the Arbitrator's findings constitute a nonfact under the standard set forth above. Contrary to the Agency's assertion, there is no evidence in the award that the Arbitrator found that the employee occupied a permanent GS-10 position, rather than a temporary position. Further, even if the Arbitrator had erred in this regard, the Agency has not established that such a determination was central to the Arbitrator's finding that the Agency failed to comply with the priority consideration provision of the parties' agreement.
In sum, the Agency's exception provides no basis for finding the award deficient.
B. The award draws its essence from the agreement
The Authority will find an award deficient as failing to draw its essence from a 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. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Agency asserts that the Arbitrator erred in interpreting certain provisions of the parties' agreement. Specifically, the Agency maintains that there is no contractual requirement that bargaining unit candidates be selected from the first list submitted to management before receipt of any other list of candidates. Our review of the award reveals that the Arbitrator made no such determination. Rather, the Arbitrator found that the Agency failed to give full and timely consideration to bargaining unit candidates under the parties' agreement. That determination is neither implausible nor irrational.
The Agency's additional contention, that the Arbitrator's finding "that employees on temporary promotions cannot be considered for certain promotions" is contrary to the parties' agreement, also does not demonstrate that the award is deficient. Exceptions at 9. As an initial matter, it is not clear that the Arbitrator made such a finding. However, in any event, the Agency has not established how such a determination would render deficient the Arbitrator's finding that the grievant was not properly considered for that position. [n6] Further, to the extent the Agency argues that the Arbitrator should [ v58 p408 ] have reached the same result here as in a prior case, it is well established that arbitration awards are not precedential. See AFGE, Local 3615, 54 FLRA 494, 501 (1998). As such, the Arbitrator was not obligated to reach the same result in this case.
Finally, the Agency's contention that the Arbitrator misinterpreted the parties' agreement by both vacating the selection and awarding priority consideration to the grievant for the lead case assistant position does not establish that the award is deficient. The cited provision of the agreement, Article 26, Section 13.B., provides for priority consideration in two situations -- where an erroneous selection is allowed to stand and where an erroneous selection is vacated. The Agency claims that, because "the grievant has already been given and has accepted a priority consideration . . . [i]t is not appropriate both to rerun the position and to grant a priority consideration." Exceptions at 10 (emphasis added). The Agency adds that "the grievant is not eligible for any further remedy for this position." Id. at 11.
The Arbitrator acknowledged that the grievant was awarded priority consideration for the position. See Award at 10. However, the Arbitrator found that, because of improprieties in the selection action, the Agency was obliged to rerun the selection altogether, after removing the ineligible selectee, and to give the grievant consideration before other candidates are considered. The Arbitrator's interpretation of the agreement's requirement to both vacate an erroneous selection action and provide priority consideration at that time, before considering other candidates, is neither an implausible nor irrational interpretation of the agreement.
C. The Arbitrator did not exceed his authority
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. See United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995).
The Agency does not specify in what manner the Arbitrator exceeded his authority under the standard set forth above. As the exception constitutes nothing more than a bare assertion, it must be denied. See, e.g., Soc. Sec. Admin., Baltimore, Md., 57 FLRA 690, 694 n.9 (2002).
V. Decision
The Agency's exceptions are denied.
Dissenting Opinion of Chairman Cabaniss:
I dissent as to the denial of the exception addressing the Arbitrator's finding that the one GS-10 employee was "`not qualified' to be considered for the Paralegal GS-09 position." Award at 6. The Arbitrator's reliance on Article 26, Section 11 F. (dealing with the timing of promotions for employees on career ladder positions) does nothing to dissuade me from the conclusion that this part of the award fails to draw its essence from the agreement in that Article 26, Section 1 requires that merit promotion actions "shall be based solely on job-related criteria." Exceptions at 9.
First of all, there is no support from Article 26, Section 11 F. as to why a GS-10 employee (it makes no difference whether the GS-10 level is temporary or permanent) would not be qualified for selection at the GS-09 level. Secondly, there is no other "job-related criteria" that justifies not considering an otherwise qualified employee for selection to the GS-09 level solely because the employee is already working at a GS-10 level. There are also a variety of legitimate reasons why a GS-10 employee would want to compete for this GS-09 position. It is, after all, a GS-09/11/12 position so it offers an employee greater promotion potential than just a GS-10 position (especially if it is only a temporary GS-10 position as alleged by the Agency). An employee might also wish to take a downgrade in order to change jobs, location, or co-workers. What all this reflects is that there is nothing inherently improper or unwarranted about higher graded personnel competing at times for lower level positions.
I am fully aware of the inherent difficulty for a party to show that an arbitrator's award fails to draw its essence from an agreement. However, given the arbitral ruling here and the justification asserted for it, and the lack of any job-related criteria flowing from a holding that an otherwise qualified GS-10 employee can not compete for a GS-09 position, I would find that the Arbitrator's award as to this issue fails to draw its essence from the contractual mandate that merit promotion actions be based solely on job-related criteria. Accordingly, I would modify the award consistent with this holding.
Footnote # 1 for 58 FLRA No. 98 - Authority's Decision
Chairman Cabaniss's opinion, dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 58 FLRA No. 98 - Authority's Decision
Article 26, Section 7.B. of the agreement provides:
For a period of 10 workdays prior to considering candidates from outside the AFGE-bargaining unit, the Employer agrees to first consider for selection internal candidates.
Footnote # 3 for 58 FLRA No. 98 - Authority's Decision
Article 26, Section 1 provides, in pertinent part:
The parties agree that the purpose and intent of the provisions contained herein are to ensure that merit promotion principles are applied in a consistent manner with equity to all employees and without regard to political, religious, or labor organization affiliation or non-affiliation, marital status, race, color, sex, national origin, disabling condition, age, or sexual orientation and shall be based solely on job-related criteria. . . .
Exceptions at 9.
Footnote # 4 for 58 FLRA No. 98 - Authority's Decision
In the prior award, the arbitrator found that an employee who occupied a temporary GS-12 position, but whose permanent position was at the GS-8 level, was properly included in the list of candidates referred to the selecting official. However, the arbitrator also found that two other employees, whose grades were at the GS-10 level, should not have been placed on the list of well qualified candidates. Based on this, and other contractual violations, the arbitrator ordered that the selection actions be vacated and rerun.
Footnote # 5 for 58 FLRA No. 98 - Authority's Decision
The Agency cites Article 26, Section 13.B., which sets forth the procedures for priority consideration. The Agency highlights subsection 1, which addresses situations in which "the erroneous selection was allowed to stand[,]" and entitles an employee to "only one priority consideration . . . for each instance in which he/she was previously denied proper consideration." Exceptions at 10. Subsection 2, also cited therein, addresses situations in which an erroneous selection results in the position being vacated. That subsection also provides that "employees who were not promoted or given proper consideration . . . will be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action." Id. at 11.
Footnote # 6 for 58 FLRA No. 98 - Authority's Decision
Even if the Arbitrator erred in finding that one of the selectees was not qualified for the paralegal position, the Agency's exception would not constitute a basis for finding the award deficient. As relevant, the Arbitrator applied Article 26, Section 11.F. of the parties' agreement, which requires that promotions be effected "to the next higher grade[,]" in finding that the particular employee was not eligible for the position. Award at 8. Although we may have interpreted that provision differently, we note that the Agency does not challenge the Arbitrator's interpretation of that provision, and makes no argument that the award is in any other manner contrary to law, rule or regulation. The only agreement provision on which the Agency relies is Article 26, Section 1, which, as relevant, provides that merit promotion actions "shall be based solely on job-related criteria." See note 3, supra. In our view, the Agency has not demonstrated how the Arbitrator's unchallenged interpretation of employee eligibility for promotion under Section 11.F., is an implausible or irrational interpretation of the job-related criterion of Section 1 of the agreement.