The third question is whether the award is contrary to law because the Arbitrator’s interpretation of the parties’ agreement “altered the language” of the agreement.^[1]  Because the Union’s argument challenges the Arbitrator’s contract interpretation, it does not provide a basis for finding the award deficient as contrary to law. Therefore, the answer is no.

 

                When the Agency fills certain positions, Article 16.4 of the parties’ agreement (Article 16.4) requires the Agency to consider internal applicants that fall within a certain category (the first area of consideration), before “moving on to” consider another category of internal applicants (the second area of consideration).^[2] Specifically, Article 16.4 states that the “[s]electing [o]fficial will fully consider each successive area of consideration before moving on to the next area of consideration.”^[3]   

 

 

                At arbitration, the Arbitrator made a series of findings concerning how the Agency filled the disputed position. Specifically, the Arbitrator found that the Agency first posted the vacancy announcement for the disputed position before the selecting official had “assumed her role” at the Agency.^[5] After posting the vacancy announcement, the Agency generated lists of the “best[-]qualified” applicants from the first and second areas of consideration,^[6] and these lists required action within a designated period, or they would lapse. After the selecting official “assumed her position,” she did not fill the disputed position within the designated period, and the first set of lists (the original lists) lapsed.^[7] In this regard, the Arbitrator stated: “The notices for applicants[,] issued before [the selecting official] assumed her position[,] lapsed.”^[8] Accordingly, the Agency issued a new vacancy announcement, and the Agency, again, generated lists of the “best[-]qualified” applicants from the first and second areas of consideration.^[9] 

 

Next, the Arbitrator found that the selecting official considered each of the applicants in the first area of consideration by reviewing their applications, reading their writing samples, and conducting personal interviews with each of them. According to the Arbitrator, the selecting official concluded that although these applicants were “solid,” none demonstrated the “creative imagination” that she was seeking.^[10] The Arbitrator determined that, without “reject[ing] any of these applicants,”^[11] the selecting official then considered the applicants in the second area of consideration by reviewing their applications, reading their writing samples, and conducting interviews. After contemplating the applicants in both the first and second areas of consideration, the selecting official chose an applicant from the second area of consideration to fill the disputed position.

 

Before the Arbitrator, the parties disputed whether the selecting official had “fully considered” applicants in the first area of consideration within the meaning of Article 16.4.^[12] In particular, the Union argued that Article 16.4 required the selecting official to review applicants from the first area of consideration and select one for the position, or, alternatively, reject each of them, before considering any applicants from the second area of consideration.  And the Union argued that past practice, the parties’ bargaining history, a previous award by a different arbitrator (the Ables opinion), and NLRB (NLRB)^[13] – the Authority’s decision denying, in part, and granting, in part, exceptions to the Ables opinion – all supported the Union’s interpretation of “fully consider.”^[14]

 

However, the Arbitrator rejected the Union’s arguments. Starting with the contract wording, he found that “[n]othing in [Article 16.4] states, directly or indirectly, that the [s]electing [o]fficial must make a final decision as to each member of the first area of consideration before any consideration of any subsequent area of consideration.”^[15] In this regard, he noted that interpreting “fully consider” to require a “final decision” as to each applicant from the first area of consideration would “push[] the Arbitrator into the impermissible ground of rewriting . . . the collective[-]bargaining agreement.”^[16] Additionally, the Arbitrator noted that, under the Union’s interpretation of Article 16.4, a selecting official could “game the system by rejecting all first[-]area applicants, [considering] . . . the second[-]area applicants, and then posting a new                        [vacancy announcement] inviting first[‑]area applicants to reapply so that the [s]electing [o]fficial could select a more impressive first[-]area applicant.”^[17] 

 

In addition, the Arbitrator found “nothing in the [parties’ bargaining] history” ^[18] to indicate that the parties intended to impose the Union’s proposed meaning of “fully consider.”^[19] Similarly, the Arbitrator rejected the Union’s argument that the parties had established a past practice that conflicted with the selecting official’s actions. Rather, the Arbitrator noted that, in filling a prior position, an Agency selecting official had considered applicants from both the first and second areas of consideration before selecting an applicant from the first area of consideration. And the Arbitrator found that this previous selection “was not, at any point, challenged by the Union.”^[20] 

 

Further, the Arbitrator rejected the Union’s reliance on the Ables opinion and NLRB because he found that: (1) the Ables opinion was “not binding” in the matter before him;^[21] and (2) neither the Ables opinion nor NLRB addressed the meaning of the term “fully consider” in Article 16.4.^[22] 

 

 

The Authority’s Regulations enumerate the grounds upon which the Authority will review arbitration awards.^[24]  In addition, the Regulations provide that if an excepting party argues that an arbitration award is deficient based on a private-sector ground not currently recognized by the Authority, then that party “must provide sufficient citation to legal authority that establishes the ground[] upon which the party filed its exception[].”^[25]  Further, § 2425.6(e)(1) of the Regulations cautions that an exception “may be subject to dismissal    . . . if . . . [t]he excepting party fails to raise” a ground listed in § 2425.6(a)‑(c) of the Regulations, or “otherwise fails to demonstrate a legally recognized basis for setting aside the award.”^[26]  

 

The Union argues that the Arbitrator’s interpretation of Article 16.4 “violat[es]” a provision of the parties’ agreement that prohibits arbitrators from modifying the terms of that agreement.^[27] This argument does not articulate a ground currently recognized by the Authority for reviewing an arbitration award, and the Union does not cite any private‑sector precedent that establishes it as a ground. Accordingly, we dismiss the Union’s exception under § 2425.6.^[28]

 

 

 

 

 

 

 

The Union argues that the award is based on six nonfacts.^[29] 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 the arbitrator would have reached a different result.^[30]  The Authority rejects nonfact exceptions that challenge alleged findings that an arbitrator did not actually make.^[31] Additionally, an arbitrator’s conclusions that are based on his or her interpretation of a       collective-bargaining agreement may not be challenged as nonfacts.^[32] Moreover, the Authority will not find an award deficient based on an arbitrator’s determination regarding any factual matter that the parties disputed at arbitration.^[33]  

 

First, the Union alleges that the Arbitrator erroneously found that the selecting official had not assumed her position when the original lists lapsed.^[34] However, the Arbitrator found that the original lists were “issued before [the selecting official] assumed her position,” not that they lapsed before she assumed her position.^[35] Thus, the Union’s first nonfact argument challenges an alleged finding that the Arbitrator did not actually make. As stated above, this does not provide a basis for finding that the award is based on a nonfact.^[36]

 

Second, the Union challenges as a nonfact^[37] the Arbitrator’s statement that interpreting Article 16.4 to require a “final decision” as to each applicant from the first area of consideration before considering anyone from the second area of consideration would “push[] the Arbitrator into the impermissible ground of rewriting . . . the collective[‑]bargaining agreement.”^[38] However, this statement constituted the Arbitrator’s interpretation of the parties’ agreement.  Therefore, it cannot be challenged as a nonfact.^[39]

 

Third, the Union alleges that the award is based on a nonfact because the Arbitrator erroneously found that, under the Union’s interpretation of Article 16.4, “a selecting official could game the system.”^[40] But the Arbitrator did not make a factual finding that a selecting official actually did or will game the system. The Arbitrator merely suggested that “gam[ing] the system” could be an unintended consequence of interpreting Article 16.4 to force a selecting official to make a decision after considering only applicants from the first area of consideration.^[41] The Arbitrator’s statement does not constitute a factual finding, and, as such, the Union cannot challenge it on nonfact grounds.^[42]

Fourth, the Union alleges that the Arbitrator’s finding that there was “nothing in the                     [parties’ bargaining] history” ^[43] to indicate that the parties intended to impose the Union’s proposed meaning of “fully consider”^[44] is a nonfact.^[45] However, the issue of whether there was anything in the parties’ bargaining history to inform the Arbitrator’s interpretation of “fully consider” was disputed at arbitration.^[46] Accordingly, the Union’s argument provides no basis for finding the award deficient as based on a nonfact.^[47]

 

The Union’s fifth nonfact argument relates to the Arbitrator’s finding that, in filling a prior position, an Agency selecting official considered applicants from both the first and second areas of consideration before selecting an applicant from the first area of consideration.^[48] Specifically, the Union alleges that the Arbitrator’s finding, that this previous selection “was not . . . challenged by the Union,”^[49] is a nonfact because testimony at arbitration showed that the Union was not aware of the Agency’s consideration process in that selection.^[50]  But the Union does not establish that either:  (1) the Arbitrator’s finding that the selection “was not . . . challenged by the Union”^[51] is clearly erroneous; or        (2) this finding was a central fact, but for which the Arbitrator would have reached a different result.  Because the Union must meet both of these requirements in order to establish that the award is based on a nonfact, the Union’s argument does not establish that the award is deficient.^[52] 

 

Sixth, the Union claims that the award is based on a nonfact because the Arbitrator erroneously concluded that the Ables opinion was inapposite.^[53]  We assume, without deciding, that the Arbitrator’s interpretation of the Ables opinion is a factual determination that is subject to challenge on nonfact grounds,^[54] and that the Arbitrator clearly erred in finding the Ables opinion inapposite. But, as discussed in Section IV.B. below, the Arbitrator was not bound by the Ables opinion. And there is no basis for finding that, had the Arbitrator not allegedly erred in finding that opinion inapposite, he would have chosen to apply it and reached a different result. Thus, the Union does not demonstrate that, but for the alleged error, the Arbitrator would have reached a different result. As such, the Union’s claim does not establish that the award is based on a nonfact.^[55]

 

 

The Union argues that the award is contrary to law in two respects.^[56] In resolving an exception claiming that an award is contrary to law, the Authority reviews any question of law raised by an exception and the award de novo.^[57] In applying a de novo standard of review, the Authority assesses whether the Arbitrator’s legal conclusions are consistent with the applicable standard of law.^[58] Under this standard, the Authority defers to the Arbitrator’s underlying factual findings unless the excepting party establishes that they are nonfacts.^[59] 

 

First, the Union claims that the award is contrary to law because the Arbitrator incorrectly concluded that neither the Ables opinion nor NLRB provided a binding interpretation of the term “fully consider” in Article 16.4.^[60]  But arbitration awards are not precedential, so even if the Ables opinion involved similar issues or the “interpretation of the same . . . contract provision[],”^[61] the Arbitrator was not bound by it.^[62]  And that the Authority denied (in pertinent part) exceptions to the contract interpretation at issue in the Ables opinion “did not require the Arbitrator, as a matter of law, to reach a particular result [regarding the contract interpretation] in this case.”^[63] For these reasons, the Union’s contention does not demonstrate that the award is contrary to law.

 

Second, the Union argues that the award is contrary to law because the Arbitrator’s interpretation of Article 16.4 “altered the language of” the parties’ agreement.^[64]  However, the Authority has rejected, as “misplaced,” contrary-to-law exceptions that challenge an arbitrator’s interpretation of the parties’ agreement.^[65]  Thus, here, the Union’s disagreement with the Arbitrator’s interpretation of Article 16.4 provides no basis for finding that the award is contrary to law.^[66] 

 

 

 

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