12:0387(83)AR - IRS, Detroit District and NTEU Chapter 24 -- 1983 FLRAdec AR



[ v12 p387 ]
12:0387(83)AR
The decision of the Authority follows:


 12 FLRA No. 83
 
 INTERNAL REVENUE SERVICE,
 DETROIT DISTRICT
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 24
 Union
 
                                            Case No. O-AR-233
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator John E. Drotning filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.  The Union filed an
 opposition.
 
    The dispute in this matter concerns the ranking process of candidates
 for a vacancy in a revenue officer position.  The grievant applied for
 the position, but was not ranked among the best-qualified candidates.  A
 grievance was filed and submitted to arbitration principally claiming
 that the ranking process was not in conformance with the merit system
 and the parties' collective bargaining agreement.  The Arbitrator found
 that the ranking process was defective and that corrective action as
 provided for in the parties' agreement was warranted.  Accordingly, as
 his award the Arbitrator directed that the relief set forth in Article
 7(15)(C)(3) of the agreement be granted to the grievant.  /1/
 
    In its first exception the Agency contends that the Arbitrator acted
 arbitrarily and capriciously and exceeded the scope of his authority by
 utilizing the Agency's failure to solicit a rebuttal from the grievant
 during the ranking process as the basis for the granting of his award.
 In support of this exception, the Agency quotes the Arbitrator's
 statement that "(t)he failure to call for a rebuttal from (the
 grievant), while not a contract violation per se, is clearly a
 procedural defect," and maintains that there was no violation of the
 parties' agreement since there was no requirement under the agreement to
 solicit rebuttals.
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient.  As noted the parties specifically
 submitted to the Arbitrator the issue of whether the ranking process was
 in conformance with the merit system and the parties' collective
 bargaining agreement.  In direct response to this issue, the Arbitrator
 expressly found substantive evidence that the ranking process deviated
 from the requirements of the parties' agreement and found a serious
 imperfection in the evaluation process as outlined in the agreement.
 Thus, the Arbitrator specifically determined that the ranking process
 was defective and that corrective action as expressly provided by the
 parties in the agreement was warranted.  In these circumstances the
 Authority finds that the Arbitrator's statement on which the Agency
 relies and which was made in the context of his discussion of the
 grievance fails to establish that the Arbitrator acted arbitrarily or
 exceeded his authority by directing that the relief of Article
 7(15)(C)(3) of the agreement be granted to the grievant.
 
    In its second exception the Agency contends that by directing the
 relief set forth in Article 7(15)(C)(3), the award does not draw its
 essence from the agreement since this section of the agreement
 specifically contemplates a roster announcement vacancy and there was no
 roster or roster announcement in this case.  The Agency explains that,
 instead of a roster, there was a specific position announcement for
 which the applicants were ranked for purposes of selection only for the
 position in question.  Thus, the Agency argues that because there was no
 roster, no relief under Article 7(15)(C)(3) can be granted, and
 consequently the award does not draw its essence from the agreement.
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient.  It is well established that asserted
 errors in the construction and application of the collective bargaining
 agreement by the arbitrator provide no basis for finding an arbitration
 award deficient under the Statute.  Federal Aviation Science and
 Technological Association and Federal Aviation Administration,
 Albuquerque Airway Facilities Sector, Southwest Region, 2 FLRA 679,
 681-82 (1980).  More specifically, the Authority has held that an
 arbitrator's award cannot be undermined as not drawing its essence from
 the agreement on the basis that the arbitrator misconstrued or
 misapplied the agreement.  See Department of Health and Human Services,
 Social Security Administration, Louisville, Kentucky District and
 National Federation of Federal Employees, Local 1790, 10 FLRA No. 73
 (1982).  In terms of this case, the Arbitrator directed that the relief
 set forth in Article 7(15)(C)(3) be granted to the grievant, and the
 basis for the Agency's exception to the award is that such relief is
 unavailable to the grievant.  Thus, it is clear that the award is based
 on a specific provision of the agreement and that the substance of the
 Agency's exception is solely that the Arbitrator incorrectly and
 erroneously applied that provision of the agreement.  Since it was the
 Arbitrator's construction and application of the collective bargaining
 agreement for which the parties bargained, it follows that this
 exception provides no basis for finding the award deficient.  See, e.g.,
 United States Army Missile Materiel Readiness Command (USAMIRCOM) and
 American Federation of Government Employees, Local 1858,