33:0088(11)AR - - AFGE Local 1923 and HHS, Health Care Financing Administration - - 1988 FLRAdec AR - - v33 p88
[ v33 p88 ]
The decision of the Authority follows:
33 FLRA No. 11
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1923, AFL-CIO
HEALTH CARE FINANCING ADMINISTRATION,
DEPARTMENT OF HEALTH AND HUMAN SERVICES
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.
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