33:0088(11)AR - - AFGE Local 1923 and HHS, Health Care Financing Administration - - 1988 FLRAdec AR - - v33 p88



[ v33 p88 ]
33:0088(11)AR
The decision of the Authority follows:


33 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 1923, AFL-CIO

and

HEALTH CARE FINANCING ADMINISTRATION,

DEPARTMENT OF HEALTH AND HUMAN SERVICES

0-AR-1530

DECISION

October 14, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Alfred Avins. The Arbitrator found that the Agency did not discriminate against the grievant on the basis of her race when the Agency failed to select the grievant for promotion. However, the Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to notify the grievant of her entitlement to priority consideration for the vacancy for which she was not selected. Accordingly, the Arbitrator ordered that the grievant be promoted to GS-13 as soon as there is a vacancy in the Agency. On the request of the Union, the Arbitrator in a "Supplemental Memorandum" clarified the award to restate the findings on which he based the award of a promotion.

The Agency filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations to both the award and the Supplemental Memorandum. The Union filed an opposition.

We conclude that the Agency has not established that either the original award or the award, as clarified, is deficient because it is based on a "nonfact" or is contrary to law and regulation. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

When the grievant was not selected for promotion to a GS-13 program issuances specialist position, she filed a grievance. She claimed that her failure to be selected was based on racial discrimination. She also claimed that she was not accorded the priority consideration to which she was entitled for the vacancy. The grievance was not resolved and was submitted to arbitration.

The Arbitrator rejected the grievant's claim that she was not selected because of racial discrimination. He found that there were "genuine, non-racial grounds" for the grievant not being selected. Arbitrator's Award at 5. Accordingly, he denied this portion of the grievance.

On the issue of priority consideration, the Arbitrator noted that the collective bargaining agreement is clear that "Employees will be notified in writing by the authorized management official of entitlement to each priority consideration." Id. at 6. The Arbitrator determined that there was no evidence of any written communication to the grievant which fulfilled the requirement of the agreement, and that as a result, the grievant was not granted priority consideration for the vacancy. Therefore, the Arbitrator found that the Agency violated the agreement and that the grievant was entitled to a remedy.

In considering a remedy, the Arbitrator determined that priority consideration for the vacancy "would have been of substantial value to grievant." Id. at 7. The Arbitrator found that "[h]ad the Personnel Office 'notified in writing' grievant of her 'entitlement to [a] priority consideration' as was her contract right she undoubtedly would have exercised it here which would have led to a promotion." Id. The Arbitrator further stated that "[i]n other words, had grievant been considered noncompetitively, she would have been promoted." Id.

Accordingly, on March 9, 1988, the Arbitrator issued the award sustaining the grievance on the issue of priority consideration. As a remedy, the Arbitrator ordered that the grievant "be promoted to a GS-13 level not later than the date when the first vacancy for a GS-13 arises in [the Health Care Financing Administration]." Id.

On March 18, 1988, the Union unilaterally requested that the Arbitrator clarify the award. The Union stated that unless the Arbitrator specifically identified an unjustified or unwarranted personnel action and specifically stated that but for this unjustified or unwarranted personnel action the grievant would have been promoted, the award was subject to being set aside by the Authority.

On March 23, 1988, the Agency filed exceptions to the March 9 award of the Arbitrator.

On March 30, 1988, the Arbitrator issued a Supplemental Memorandum clarifying his award. The Arbitrator stated that in his prior opinion, he quoted Article 26, Section 13 of the parties' collective bargaining agreement "which establishes a mandatory personnel policy of requiring the authorized management official to notify each employee in writing of entitlement to each priority consideration." Arbitrator's Supplemental Memorandum. He further stated that he "found that the unjustified or unwarranted personnel action was an act of omission, to wit: failure to sent [sic] grievant such notification in writing." Id.

On the result of this failure, the Arbitrator stated, as follows:

I further found that but for the failure to issue this notification, grievant would have received the promotion. Had grievant received the notification, she would have exercised her right to a noncompetitive consideration. Had she exercised such right, she would have been selected by [the selecting official]. As I previously pointed out, he had testified that all eight people on the list he had received were qualified and grievant was about fourth or fifth on this list. He did not select grievant because there was a stronger candidate, but had she been considered noncompetitively, that would not have been a factor and she would thus have been found qualified and hence selected.

Id.

On April 12, 1988, the Agency filed an exception to the award, as clarified by the Supplemental Memorandum.

III. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's finding that the Agency violated the parties' collective bargaining agreement by failing to notify the grievant of her entitlement to priority consideration is based on a "nonfact." The Agency maintains that the central fact underlying this finding is erroneous and that but for the Arbitrator's erroneous finding, a different result would have been reached.

The Agency claims that the evidence did not show that the Agency failed to notify the grievant of her entitlement to priority consideration. The Agency argues that the grievant was properly notified but that she was apparently confused as to when she was entitled to use the priority consideration. The Agency also argues that under the parties' collective bargaining agreement, it is the employee's responsibility to exercise the right to be considered for a promotion. Therefore, the Agency asserts that the Arbitrator erroneously interpreted the facts in finding that the Agency failed to notify the grievant, as required by the agreement, of her entitlement to priority consideration. The Agency maintains that but for this erroneous finding, the Arbitrator would not have found a violation of the collective bargaining agreement.

The Union contends that the award is not based on a "nonfact."

B. Analysis and Conclusions

The Agency fails to establish that the central fact underlying the Arbitrator's finding that the Agency failed to notify the grievant of her entitlement to priority consideration is erroneous and that but for the Arbitrator's erroneous finding, the Arbitrator would have reached a different result.

The Arbitrator noted that the collective bargaining agreement is clear that employees must be notified in writing of their entitlement to priority consideration. The Arbitrator determined that the Agency violated the agreement because there was no evidence that the grievant had been notified as required by the agreement. The Agency's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and his interpretation and application of the parties' collective bargaining agreement. Consequently, the exception provides no basis for finding the award deficient. For example, U.S. Immigration and Naturalization Service and National Border Patrol Council, AFGE 1929, 29 FLRA 1177 (1987) (an exception which constitutes nothing more than disagreement with the arbitrator's findings of fact and interpretation and application of the collective bargaining agreement provides no basis for finding an award deficient).

IV. Remaining Exceptions

A. Positions of the Parties

The Agency contends that by awarding a promotion to the grievant, both the original award and the award, as clarified by the Supplemental Memorandum, are contrary to law and regulation.

The Agency argues that the original award is contrary to management's right to make selections under section 7106(a)(2)(C) of the Statute. The Agency maintains that the Arbitrator failed to make the findings necessary to award the grievant a promotion consistent with management's right. The Agency claims that the Arbitrator did not find that but for the Agency's failure to notify the grievant of her entitlement to priority consideration, the grievant would have been promoted. The Agency claims that its failure to address the Arbitrator's remedial authority, as he had requested, does not authorize the Arbitrator to award a promotion which is contrary to law. The Agency asserts that the appropriate remedy under Federal Personnel Manual (FPM) chapter 335, Appendix A is priority consideration for promotion to the next available position for which the grievant is qualified.

The Agency also contends that the award, as clarified by the Supplemental Memorandum, is contrary to management's right to make selections for appointment as set forth in section 7106(a)(2)(C) and also FPM chapter 335, subchapter 1-4, Requirement 4. The Agency maintains that the Arbitrator erroneously concluded that a violation of the collective bargaining agreement pertaining to priority consideration entitles the affected employee to a promotion. The Agency argues that there are no provisions in the agreement authorizing a promotion when priority consideration has been wrongfully denied to an employee. In addition, citing the Authority's decision in Office of the Secretary, U.S. Department of Transportation and American Federation of Government Employees, Local 3313, AFL-CIO, 17 FLRA 54 (1985) (Department of Transportation), the Agency argues that the failure to accord an employee priority consideration cannot, by itself, constitute the required finding that there is a direct connection between improper agency action and the failure of the employee to be selected for promotion. The Agency again asserts that the appropriate remedy is priority consideration and that the Arbitrator's award to the grievant of a promotion is deficient.

The Union contends that the Arbitrator made the findings necessary to support his award of a promotion to the grievant.

B. Analysis and Conclusions

Although not disputed by the Agency, we confirm that the Arbitrator was authorized to issue the Supplemental Memorandum clarifying his award even though he was requested to clarify his award by the Union alone. Because of the ambiguity raised by the Union as to the basis for the Arbitrator's award of a promotion, the Arbitrator was entitled to clarify the ambiguity and to restate the basis for his award which conforms to his original findings. See, for example, Corps of Engineers, U.S. Army Engineer District, New Orleans, Louisiana and National Federation of Federal Employees, Local 1124, 17 FLRA 315, 316 (1985) ("[A]n arbitrator's authority is not always immediately terminated upon issuance of an award. Rather, it is generally recognized that an arbitrator has the authority to correct or clarify an award in a number of circumstances."); LaVale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir. 1967) ("The resolution of such an ambiguity is not within the policy which forbids an arbitrator to redetermine an issue which he has already decided, for there is no opportunity for redetermination on the merits of what has already been decided.").

In contrast, we recently held that after an arbitrator's award has been issued, the arbitrator is not authorized to reopen the arbitration proceeding or to reconsider the award without a joint request of the parties. Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 415 (1988) ("The Union's subsequent motion to the Arbitrator, which was opposed by the Agency, did not provide the Arbitrator with authority to reconsider his award or to issue a new decision."). In this case, the Arbitrator's Supplemental Memorandum clarifying the award did not constitute a reopening of the proceedings nor a reconsideration of his award. Rather, the Arbitrator clarified an abiquity by restating the basis for his award of a promotion.

With respect to the Agency's exceptions, we conclude that the Agency fails to establish that either the award or the award, as clarified, is contrary to law or regulation. We conclude that in both the original award and the award, as clarified, the Arbitrator made the findings necessary to award a promotion to the grievant.

Consistent with management's rights under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4 to make selections for appointments, an arbitrator may properly order an employee to be selected for promotion only when the arbitrator finds that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be promoted. For example, Veterans Administration Medical and Regional Office Center of Wilmington, Delaware and Laborers' International Union of North America, AFL-CIO, Federal Local No. 1154, 32 FLRA 701 (1988); U.S. Army Missile Command, U.S. Army Communications Command Agency--Redstone, U.S. Army Commissary, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, AFL-CIO, 20 FLRA 792 (1985).

In his original award, the Arbitrator determined that the Agency violated the parties' collective bargaining agreement by failing to notify the grievant that she was entitled to priority consideration for the GS-13 program issuances specialist vacancy. The Arbitrator found that the exercise of the grievant's right to priority consideration "would have led to a promotion." Arbitrator's Award at 7. He stated that "[i]n other words, had grievant been considered noncompetitively, she would have been promoted." Id. In his Supplemental Memorandum clarifying this award, the Arbitrator stated the required findings even more directly:

[B]ut for the failure to issue this notification, grievant would have received the promotion. Had grievant received the notification, she would have exercised her right to a noncompetitive consideration. Had she exercised such right, she would have been selected by [the selecting official].

Arbitrator's Supplemental Memorandum.

Contrary to the contention of the Agency, there is nothing in the Arbitrator's original award or the award, as clarified by the Supplemental Memorandum, to show that the Arbitrator based his order that the grievant be promoted on a finding that a violation of the priority consideration provisions entitles the affected employee to a promotion. Instead, the Arbitrator's award is based on the Arbitrator's reconstruction of what the selecting official would have done if the grievant had been referred for priority consideration. Therefore, this case is distinguishable from Department of Transportation, cited by the Agency. In that case, the Authority held that the failure to grant an employee priority consideration alone cannot constitute the required finding that but for the unwarranted action, the employee would have been selected for promotion. Unlike Department of Transportation, the Arbitrator in this case made the finding that but for the unwarranted action, the employee would have been selected for promotion. Consequently, the Agency's exceptions provide no basis for finding the Arbitrator's award to be deficient.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
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