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United States, Department of Health and Human Services, Centers For Medicare and Medicaid Services (Agency) and American Federation of Government Employees, Local 1923 (Union)

[ v60 p437 ]

60 FLRA No. 86

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
CENTERS FOR MEDICARE
AND MEDICAID SERVICES
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1923
(Union)

0-AR-3817

_____

DECISION

November 23, 2004

_____

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 Louis Aronin 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 did not file an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency failed to properly grant the grievant priority consideration as required by the parties' agreement and ordered the Agency to place the grievant in the Health Insurance Specialist GS-7 position. The Arbitrator also ordered the Agency to evaluate the grievant after one year for the GS-9 level and promote the grievant if she is qualified. Finally, the Arbitrator ordered back pay for the GS-9 position if the grievant is promoted after one year at the GS-7 position.

      For the following reasons, we deny the Agency's contrary to law, essence, fair hearing and ambiguity exceptions and set aside the part of the award granting back pay contingent on the grievant's promotion to the GS-9 level after one year.

II.      Background and Arbitrator's Award

      The grievant received priority consideration for a GS-7 position in July 2001. Award at 2. In 2002, the grievant used her priority consideration to apply for the position of Health Insurance Specialist, GS-107-7, with a promotion potential to GS-12. Id. The Human Resources Management Group director sent a memo notifying the director of the unit filling the position that the grievant was entitled to priority consideration. Id. The memo stated that interviews are mandated for employees exercising priority consideration and that reasons for non-selection must be submitted in writing. Id. at 3.

      After being interviewed for the position, the grievant received a memo informing her that she was not selected. Id. The interviewing official submitted a written statement justifying the non-selection and explained that the grievant met the "basic requirements," but her experience was limited and did not demonstrate the "potential to successfully perform the full range of duties this position requires." See id. at 3-4, 6. According to the interviewing official, the grievant "did not show the ability to develop into someone who could fulfill the professional aspects of the job." Id. at 5, 6. The interviewing official also stated that the grievant did not provide any additional information during the interview that was not provided on her application. Award at 5.

      The grievant applied for the same position under the competitive promotion procedures. Id. at 4. The rating panel, which included the interviewing official, rated the grievant above average on all three elements of the knowledge, skill and ability (KSAs), two of which were identified as "critical" elements. [n2]  Award at 4. The interviewing official stated that the rating panel rated the candidates higher than it should because "applicants keyed their applications to the KSA's on the announcement." Id. at 6. The interviewing official agreed with the ratings of the rating panel even though she could have rated the grievant differently from those ratings if she had not agreed with them. Id.

      The Union filed a grievance alleging that the Agency failed to properly grant priority consideration to the grievant. Id. at 1. The parties were unable to resolve the grievance and it was submitted to arbitration. The Arbitrator framed the issue as "[d]id the [Agency] violate the parties' [a]greement when it failed to select [g]rievant . . . by use of priority consideration, for the [ v60 p438 ] position of Health Insurance Specialist, GS-107-7. If so, what is the appropriate remedy?" Id. at 2.

      The Agency asserted that the grievant was granted priority consideration and that priority consideration, under the parties' agreement, does not require selection. [n3]  Id. at 7, 8. The Agency explained that the grievant was interviewed and given "bona fide consideration," but was not selected because the interviewing official, according to the written justification for non-selection, determined that the grievant did not have the necessary qualifications to "perform the full range of duties." Id. at 7-8. The Agency also argued that the rating panel's rating is irrelevant because it is a "consensus rating, as contrasted to the rating by the [interviewing] official in the case of priority consideration." See id. at 8.

      The Union maintained that the grievant met the qualifications for the position and that she was not selected because the Agency was looking for someone to perform the duties of the position at the GS-12 level. Id. at 9. The Union alleged that other arbitrators, in disputes between the same parties, have interpreted priority consideration as "requiring bona fide consideration, exclusive of other candidates, and that if the applicant meets the minimum standards for the position and can adequately perform the job, they must be selected." See Award at 9. The Union contended that the referral of the grievant for the position, in addition to the above average rating, illustrate that the grievant was minimally qualified for the position. Id. The Union requested that the grievant be placed in the GS-7 position and given credit for the time she would have been in grade and requested back pay for "all time lost in advancing through the career ladder." See id.

      The Arbitrator stated that selection is not always automatic for an employee who exercises priority consideration. Id. However, the Arbitrator stated that priority consideration, under the parties' agreement, does require "bona fide consideration" as if there are no other candidates for the position. Id. The Arbitrator explained that he, and other arbitrators, have issued decisions involving the same parties and have determined that an applicant who exercises priority consideration and meets the minimum qualifications for a position, is "entitled to be selected." Id.

      Applying that standard, the Arbitrator found that the grievant was minimally qualified for the position, at the GS-7 level, for which she applied. Id. at 10. The Arbitrator determined that the grievant's "above average" rating was enough proof that the grievant was minimally qualified. Id. The Arbitrator disregarded the interviewing official's testimony that the panel rated applicants "liberally" and stated, "[i]f [the grievant] was not `above average', clearly [the grievant] minimally met all the qualifications." See id.

      The Arbitrator found that the interviewing official's testimony lacked credibility because the interviewing official stated the grievant did not have the potential to perform the position to the "full performance level of GS-12." See id. The Arbitrator concluded that the official was interviewing the grievant for the position at the GS-12 level rather than interviewing the grievant for the position at the GS-7 level. Award at 10. According to the Arbitrator, the interviewing official did not consider the grievant's potential to develop into the GS-12 level of the position and assumed that in the time period between the GS-7 level and the GS-12 level, the grievant could not learn anything. Id. The Arbitrator also explained that career ladder positions do not require all employees to reach the top of the ladder. Id.

      Based on his findings, the Arbitrator determined that the Agency violated the agreement by not granting the grievant priority consideration. Id. at 11. The Arbitrator concluded that the grievant was "entitled to be selected" for the position when she exercised her priority consideration and interviewed for the position in 2002. Id. The Arbitrator ordered the Agency to place the grievant in "that position, with all of the rights that would have been applicable had she been selected in September 2002." Id. Acknowledging that it is not known whether the grievant would progress beyond the GS-7 level, the Arbitrator ordered the Agency to make the grievant whole for the "difference between the compensation for the position she held from September 2003 and that of a GS-9 Health Insurance Specialist if she is found qualified for the position of GS-9 as the result of an evaluation one year after being placed in the Health Insurance Specialist GS-7 position." See id. at 12. The Arbitrator retained jurisdiction over the matter for 30 days. Id.

      The Agency, requesting clarification of the award, asked the Arbitrator in which position the award required it to place the grievant. Agency Request for Clarification, March 31, 2004. The Agency argued that the award was inconsistent when it stated that the grievant was entitled to the GS-7 position and then stated that she "shall be entitled to a promotion to GS-9 in September 2003 . . . ." Id. The Arbitrator stated that his intent was that the grievant be placed in the GS-7 position and be retroactively promoted to the GS-9 position "if found [ v60 p439 ] qualified after one year in the GS[-]7 position." Arbitrator's Clarification, April 3, 2004. In addition, the Arbitrator explained that an arbitration award always governs and any inconsistent language in an opinion is irrelevant. Id.

III.      Agency's Exceptions

A.      The award is deficient as contrary to law because it excessively interferes with management's right to select.

      The Agency argues that the award violates management's right to select and does not satisfy either prong of United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Exceptions at 7-8. Citing Authority precedent, the Agency asserts that the award affects its right to select by requiring it to place the grievant in a position. Id. In addition, the Agency contends that the award affects its right to select because the Arbitrator improperly evaluated the grievant's qualifications and made a determination that she was qualified for the position, despite the testimony by the interviewing official that the grievant was not qualified. Id. at 10-11, 16. According to the Agency, the Arbitrator substituted his judgment for that of the interviewing official without justification. Id. at 16.

      The Agency acknowledges Authority precedent holding that priority consideration provisions are appropriate arrangements, but argues that even if Article 26, Section 14 of the agreement, as interpreted and applied, is an arrangement, it excessively interferes with its right to select because the Authority has held "`where an arbitrator has determined the qualifications or selective factors to be used in filling a position, the award affects management's right to select.'" Id. at 9, 10-11 (citing Social Security Admin., Chicago Region, Cleveland, Ohio District Office, University Circle Branch, 56 FLRA 1084 (2001) (SSA Chicago Region).

      The Agency further explains that even if the award is an appropriate arrangement, it violates prong II of BEP because it does not "reflect a reconstruction of what management would have done if management had not violated the agreement." Id. at 12-13. According to the Agency, the Arbitrator never made a finding that the grievant would have been selected but for the Agency's violation and the Agency did not concede that point. Id. at 13. In addition, the Agency argues that it provided legitimate reasons for the non-selection. Id. The Agency alleges that the Authority has found similar awards deficient as a matter of law. Exceptions at 13 (citing Department of Health and Human Servs., Family Support Admin., Wash., D.C., 42 FLRA 347 (1991) (Family Support Admin.).

      Finally, the Agency asserts that the right to select includes the right not to select and that it is "impossible to determine that, even if the [g]rievant had been given priority consideration, the action that management would have taken would have been to select the [g]rievant." Id. According to the Agency, the award leaves it with the choice between removing the selectee from the position or creating another position for the grievant, both of which violate its rights under § 7106(a) to determine whether or not to create a position and make a selection to fill that position. Id. at 11.

B.      The award is deficient as contrary to law because it is inconsistent with the Back Pay Act.

      The Agency alleges that the grievant was not denied a promotion when she was not selected for the position because she was a GS-7 and applied for a GS-7 position. Id. at 14. The Agency contends that despite the Arbitrator's finding that the Agency committed an unjustified and unwarranted personnel action, the Arbitrator did not find that the action resulted in the denial of a promotion. Id.

      The Agency further asserts that the Arbitrator acknowledged that the grievant's possible promotion to the GS-9 level could not be determined, but ordered a prospective promotion, back pay and benefits for the GS-9 position. Id. According to the Agency, the award is speculative and does not meet the causal connection necessary for an award of back pay because it is "contingent upon the [g]rievant being found qualified for the promotion and after completing one year at the GS-7 level." See id.

C.      The award is deficient as failing to draw its essence from the agreement.

      The Agency asserts that interpreting the priority consideration provision in the parties' agreement as requiring selection for the "failure to give bona fide consideration" is "implausible." Exceptions at 16-17. The Agency also contends that the Arbitrator interpreted priority consideration as not allowing the Agency to rate an employee and then misapplied his own interpretation by considering the grievant's rating as proof that she was minimally qualified. Id. The Agency argues that using the rating as proof "underpins the entire [a]ward" and illustrates that the Arbitrator disregarded the parties' agreement. Id. at 17.

      The Agency also maintains that the Arbitrator ordered a remedy that was not consistent with the [ v60 p440 ] express remedy provision in the parties' agreement. Id. at 10. By ordering the Agency to place the grievant into a position, the Agency asserts that the award does not enforce the remedy negotiated by the parties as reflected in the agreement. Id. The Agency contends that the Arbitrator ignored the parties' agreement and fashioned his own remedy, despite the plain language of the provision stating that an employee will receive priority consideration for "each instance of improper consideration." See id. at 18.

D.      The award is deficient because the Arbitrator failed to conduct a fair hearing. [n4] 

      The Agency asserts that the Arbitrator never made a finding about whether the grievant was given bona fide consideration, a "required element of priority consideration as negotiated by the parties." Id. at 10. The Agency also argues that the Arbitrator inappropriately "relied heavily" on the rating panel's determination that the grievant was above average, despite the Agency's arguments that the panel process did not take place until after the priority consideration process was complete. Id. at 15.

E.      The award is deficient because it is so ambiguous as to be impossible to implement. [n5] 

      The Agency asserts that the award is so incomplete, ambiguous, or contradictory as to make implementation impossible. Exceptions at 18. In the Agency's view, the award is ambiguous as to the position in which the Agency is ordered to place the grievant, the original position or any Health Insurance Specialist position. Id. at 19. The Agency contends that the Arbitrator did not clarify his award upon its request and if the award is upheld, the Agency will not know how to implement it. Id. Finally, the Agency argues that it is unclear whether it must place the grievant in a position with the same promotion potential as the original position. Id. at 20.

IV.      Analysis and Conclusions

A.      The award does not excessively interfere with management's right to select.

      When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU, Chapter 24). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998) (Local 1437). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. Id.

      The Agency argues that the award violates its right to select. When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in BEP. BEP, 53 FLRA at 152-53.

      The Authority has held that an award requiring an agency to make a selection for appointment affects management's right to select under § 7106(a)(2)(C). United States Dep't of Labor, Wash., D.C., 59 FLRA 511 (2003) (citing AFGE, Council 220, 54 FLRA 1227, 1235 (1998); United States Dep't of Health and Human Servs., Soc. Sec. Admin., San Francisco Region, 48 FLRA 293, 302 (1993)). The Arbitrator in this case ordered the Agency to place the grievant in a position. Award at 12. As such, the award affects the Agency's right to select.

      Upon finding that an award affects a management right, the Authority applies a two-prong test to determine if the award is deficient. BEP, 53 FLRA at 152-53. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Id. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. Id. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties. Id.

      Under prong I of BEP, the Authority considers whether the contract provision, as interpreted and applied by the Arbitrator, constitutes either an appropriate arrangement or a procedure within the meaning of [ v60 p441 ] § 7106(b). See id.; United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr, Oklahoma City, Okla., 58 FLRA 109, 110 (2002) (Oklahoma City). In this case, the Agency argues that Article 26, Section 14 of the agreement, as interpreted and applied, excessively interferes with its right to select and therefore is not an appropriate arrangement.

      When deciding if a provision is an appropriate arrangement, the Authority will first determine if the provision constitutes an arrangement because it is intended to be a remedy for employees adversely affected by management exercising its rights. Oklahoma City, 58 FLRA at 110; Federal Aviation Admin., Wash., D.C., 55 FLRA 1233, 1236-37 (2000). If the provision is found to be an arrangement, the Authority will determine whether the provision excessively interferes with management's exercise of its right. Id. at 111.

      In this case, the Agency only argues that the award excessively interferes with its right to select. [n6]  Where an award requiring the selection of a grievant with priority consideration is challenged, the Authority has consistently held that "contractual provisions affording such consideration constitute appropriate arrangements under § 7106(b)(3) of the Statute." See United States Dep't of the Navy, Naval Weapons Station, Yorktown, Va., 57 FLRA 917, 921 (2002) (Naval Weapons Station) (citing SSA Chicago Region, 56 FLRA at 1090; Social Security Admin., Branch Office, East Liverpool, Ohio, 54 FLRA 142, 147-48 (1998) (SSA East Liverpool)). Therefore, Article 26, Section 14 of the parties' agreement constitutes an appropriate arrangement and satisfies prong I of BEP.

      Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. BEP, 53 FLRA at 154. The Authority has held that a remedy of a retroactive promotion "properly reconstructs the agency's actions when the arbitrator finds that the agency would have selected the grievant, but for [the] violation of the parties' agreement." United States Dep't of Labor, Wash., D.C., 59 FLRA 560, 562 (2004) (citing United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 13, 56 FLRA 647, 650 (2000)).

      The Arbitrator construed "priority consideration" as requiring the Agency to select the grievant if she met the minimum qualifications. Based on his interpretation and findings of facts, the Arbitrator determined that the grievant was minimally qualified and "entitled to be selected" and that the Agency violated the parties' agreement by not selecting her. Award at 9, 11. Therefore, we find that the award satisfies prong II of BEP. United States Dep't of Labor, Wash., D.C., 59 FLRA at 562-63 (citing SSA, Chicago Region, 56 FLRA at 1086). See also United States Dep't of Labor, Wash., D.C., 59 FLRA 511 (2003) (Authority found an award, directing the agency to make the grievant whole, was a proper reconstruction where the arbitrator found the grievant met the minimum qualifications for a position and should have been selected); SSA East Liverpool, 54 FLRA 142 (Authority found an award ordering the Agency to select the grievant for the next vacancy satisfied prong II where the arbitrator found that the agency violated the agreement by not selecting the grievant whom the agency failed to prove did not meet minimum qualifications). Cf. Family Support Admin, 42 FLRA at 359 (The arbitrator's findings only established that the selection process violated the parties' agreement and did not, implicitly or explicitly, support a conclusion that the grievant would have been selected if the violations had not occurred.)

      Because the award is an appropriate arrangement and constitutes a proper reconstruction of what the Agency would have done had it not violated the parties' agreement, we find there is no basis to conclude the award is deficient as contrary to § 7106(a)(2)(C) of the Statute because both prongs of BEP are satisfied.

B.      The award is inconsistent with the Back Pay Act.

      As we stated earlier, the Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA at 332. In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See Local 1437, 53 FLRA at 1710. In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency argues that the award is contrary to the Back Pay Act. The Authority has long held that under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998) (DHHS). [ v60 p442 ]

      With regard to the first requirement, a breach of the parties' agreement constitutes an unjustified and unwarranted personnel action. GSA, 55 FLRA 493, 496 (1999). Based on the Arbitrator's finding that the Agency breached the parties' agreement by not giving the grievant priority consideration, the first requirement under the Back Pay Act is satisfied. Id.

      Under the second requirement of the Back Pay Act, an arbitrator must find that the unwarranted and unjustified personnel action resulted in a loss of pay, allowance or differential. DHHS, 54 FLRA at 1218-19. In this case, the Arbitrator acknowledged that not everyone in a career ladder position will reach the top of the ladder and stated, "one who performs their job properly, but is not motivated to seek promotion, is not committing an offense warranting discipline or termination." See Award at 10-11. In addition, the Arbitrator conceded that he could not determine whether the grievant would have progressed beyond the GS-7 level. Id. at 11. Finally, the Arbitrator, when awarding the back pay, stated, "[i]f [g]rievant is found qualified[,]" illustrating the possibility that the grievant may not be qualified for the promotion or receive the promotion. See id. (emphasis added).

      Given the above, the Arbitrator awarded back pay based on the possibility that the grievant may receive a promotion in the future, not on a finding that the Agency's actions actually caused the grievant to suffer a loss in pay, allowances or differentials. Accordingly, as the Arbitrator never made a finding, implicitly or explicitly, that, but for the Agency's failure to follow the agreement, the grievant suffered a loss of pay, allowances or differentials, the award does not satisfy the second requirement of the Back Pay Act. [n7] AFGE, Council 147, 59 FLRA 864, 866 (2004) (Member Pope dissenting) and citations therein (Authority found the required causal connection was not implicit from the arbitrator's award and stated that a finding of a violation of the parties' agreement does not establish a causal connection justifying back pay); Social Security Admin., Office of Hearings and Appeals, Orlando, Fla., 54 FLRA 609, 614 (1998) (Authority set aside award of back pay because it did not reflect any connection between the failure to follow promotion procedures and the failure of the grievant to be selected for promotion). See also United States Dep't of Veterans Affairs, Cleveland Regional Office, Cleveland, Ohio, 59 FLRA 248, 251 (2003) (Member Pope dissenting as to other matters) (Authority found that in the absence of an "explicit or implicit" finding by an arbitrator that "but for" the agency's actions the grievant "would have been" promoted there is no causal connection established under the Back Pay Act.) Cf. SSA Chicago Region, 56 FLRA at 1090 (Authority determined back pay was justified because the arbitrator implicitly found that the unjustified and unwarranted personnel action led to the grievant's loss of pay.) Based on the above, we find deficient as contrary to the Back Pay Act the part of the award ordering back pay contingent on the grievant's promotion to the GS-9 level.

C.      The award draws its essence from the agreement.

      In order for an award to be found deficient as failing to draw its essence from the 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 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. United States Dep't of Def., Def. Logistics Agency, Def. Distribution Ctr., New Cumberland, Pa., 55 FLRA 1303, 1306-07 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). The Authority applies the deferential "essence" standard to review the Arbitrator's interpretation of the parties' settlement agreement because it is the arbitrator's construction of the agreement for which the parties have bargained. See Naval Weapons Station, 57 FLRA at 920; OSHA, 34 FLRA at 576.

      The parties' agreement states that if there is a previous failure to properly consider an employee for a position, the Agency will grant the employee priority consideration, defined as bona fide consideration, for other positions. [n8]  Award at 6. The Arbitrator interpreted priority consideration under the parties' agreement as [ v60 p443 ] requiring the Agency to select an employee for the position if the employee meets the minimum qualifications. Id. at 9. Based on this interpretation, the Arbitrator found that the Agency violated the parties' agreement by not selecting the grievant (who met the minimum qualifications for the position).

      The Agency has failed to establish that the Arbitrator's award is implausible, irrational or in manifest disregard of the parties' agreement. SSA East Liverpool, 54 FLRA at 146-47 (Authority found that the award did not fail to draw its essence from the parties' agreement where the arbitrator, interpreting priority consideration as requiring the agency to select an employee who meets the minimum qualifications, found that the agency violated the agreement when it did not select the grievant.) See also Naval Weapons Station, 57 FLRA at 920 (Authority found an award where the arbitrator determined the agency had not granted priority consideration and ordered the agency to select a grievant for the next vacancy did not fail to draw its essence from the agreement) (citing AFGE, Local 4044, 57 FLRA at 101-102). Thus, we find that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement.

D.      The Arbitrator conducted a fair hearing.

      The Authority will find an award deficient if it is clear that an arbitrator failed to conduct a fair hearing by, for example, refusing to hear evidence which is pertinent and material or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 3615, 57 FLRA 19, 22 (2001); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Prison Camp, Allenwood, Pa., 35 FLRA 827, 829 (1990). Disagreement with an arbitrator's evaluation of the evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding an award deficient. See AFGE, Local 3295, 51 FLRA 27, 32 (1995).

      The Agency's arguments directly challenge the weight the Arbitrator gave to evidence presented and his ultimate conclusions. Therefore, the Agency does not provide any basis to find the award deficient based on the failure to conduct a fair hearing. Id.

E.      The award is not ambiguous or impossible to implement.

      For an award to be found deficient as incomplete, ambiguous, or contradictory, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award are too unclear or uncertain. See AFGE, Local 1843, 51 FLRA 444, 448 (1995).

      The Agency argues it is unclear whether the position in which it must place the grievant must have the same promotion potential as the original position. In his clarification, the Arbitrator stated that the intent of his award was clear on page 11 where he discussed the grievant's potential future promotions. As the Arbitrator discussed the possible future promotions, consistent with the promotion potential in the original position, the record supports a conclusion that the award requires the Agency to place the grievant in a Health Insurance Specialist GS-7 position with the same promotion potential as the original position. United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care Sys., Biloxi, Miss., 57 FLRA 77, 79 (2001).

      In addition, the Agency argues that it does not know how to implement the award, but concedes that the award places it in the "untenable position of having to either remove the candidate who was ultimately selected for the position through the competitive process or of having to create another position into which to place the [g]rievant, whether or not the Agency had created such a new position." Exceptions at 11. The Agency has demonstrated that it knows its choices in implementing the award, thereby negating its claim that the award is impossible to implement.

      Given the above, the Agency has failed to demonstrate that the award is so ambiguous as to make implementation impossible.

V.     Decision

      We set aside the part of the award ordering back pay contingent on the grievant's promotion to the GS-9 level after one year and deny the Agency's remaining exceptions. [ v60 p444 ]

APPENDIX

Article 26

A.      Definition - For the purpose of this Article, a priority consideration is the bona fide consideration for non-competitive selection given to an employee as the result of a previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation. Employees will receive one priority consideration for each instance of improper consideration.

B.     Processing - The procedures for processing a priority consideration will be:

1.      Employees will be notified in writing by the authorized management official of entitlement to each priority consideration. Such notice will advise employees that if a vacancy is announced and posted and the employee wishes to exercise their priority consideration, they should submit the necessary application to HRMG with a written request that they wish priority consideration for the vacancy.
2.      Priority consideration is to be exercised by the selecting official at the option of the employee for an appropriate vacancy. An appropriate vacancy is one for which the employee is interested, is eligible, and which leads to the same grade level as the vacancy for which proper consideration was not given.
3.      Prior to the evaluation of other applicants, the name(s) of the employee(s) requesting to exercise priority consideration will be referred to the selecting official. The selecting official will make a determination on the request prior to evaluating other applicants.
4.      The fact that the employee chooses to exercise a priority consideration does not preclude that employee from also filing an applications through the regular posting process.

C.      Union Notification - In order to assure compliance with this section, the Union will be furnished statistics on priority considerations granted and exercised and the results. Statistics will be kept and provided to the Union on a quarterly basis. The Union will also be notified in writing of each individual priority consideration completed.

File 1: Authority's Decision in 60 FLRA No. 86
File 2: Opinion of Member Pope

Footnote # 1 for 60 FLRA No. 86 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.

Footnote # 2 for 60 FLRA No. 86 - Authority's Decision

   The panel rated the grievant about two weeks after the grievant was notified of her non-selection. Award at 4.

Footnote # 3 for 60 FLRA No. 86 - Authority's Decision

   The relevant text of the parties' agreement is set forth in the Appendix.

Footnote # 4 for 60 FLRA No. 86 - Authority's Decision

   Although these arguments are contained in the Agency's essence exception, the arguments are more appropriately construed as contending that the Arbitrator failed to conduct a fair hearing. United States Dep't of Labor, Wash., D.C., 59 FLRA 511, 515 (2003).

Footnote # 5 for 60 FLRA No. 86 - Authority's Decision

   Although the Agency argues that the Arbitrator exceeded his authority, we construe the exception accordingly based on the content of the exception. See United States Equal Employment Opportunity Commission, Baltimore Field Office, Baltimore, Md., 59 FLRA 688, 692 (2004).

Footnote # 6 for 60 FLRA No. 86 - Authority's Decision

   Because the Agency only argues excessive interference, we limit our discussion to that issue.

Footnote # 7 for 60 FLRA No. 86 - Authority's Decision

   Chairman Cabaniss has reviewed the decisions cited in Member Pope's dissent and do not find them on point. In Pueblo Depot Activity, Pueblo Colo., 50 FLRA 310, 312 (1995) and Federal Deposit Ins. Corp., Wash., D.C., 48 FLRA 313, 330-31 (1993), the parties were ordered to retroactively bargain because there was "no way to . . . ascertain which of the employees would have been . . . [affected] had the parties reached an agreement." In those cases, the purpose of bargaining was to determine which employees suffered a loss of pay, allowances or differentials and not whether a loss had occurred, because that issue (unlike the present case) has already been determined. In this case, it is unknown whether the Agency's failure to select the grievant will result in a loss in pay, allowances or differentials because it is unknown when and if the grievant will be promoted to the GS-9 level.

Footnote # 8 for 60 FLRA No. 86 - Authority's Decision

   Although the agreement sets forth the remedy for improper consideration, it does not set forth the remedy for a violation of priority consideration.