12:0387(83)AR - IRS, Detroit District and NTEU Chapter 24 -- 1983 FLRAdec AR
[ v12 p387 ]
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, AFL-CIO, 2 FLRA 432 (1980).