33:0134(15)AR - - SSA, Data Operations Center, Albuquerque, NM and AFGE Local 3512 - - 1988 FLRAdec AR - - v33 p134
[ v33 p134 ]
The decision of the Authority follows:
33 FLRA No. 15
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION, DATA OPERATIONS CENTER,
ALBUQUERQUE, NEW MEXICO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
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 Benjamin M. Shieber. The grievant filed a grievance claiming that she was not selected for a promotion because of her Union activities and her filing of Equal Employment Opportunity (EEO) complaints. The Arbitrator found that the Activity followed the collective bargaining agreement in filling the vacancies and that the grievant failed to prove that she was not selected because of her Union activities or her filing of EEO complaints. Accordingly, the Arbitrator denied the grievance.
The Union 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. The Activity did not file an opposition.
We conclude that the Union has failed to establish that the award is deficient because (1) the Arbitrator misinterpreted the collective bargaining agreement, (2) the Arbitrator erred in his statement of the Union's position, or (3) the Arbitrator erred when he found that the evidence was not sufficient to prove that the grievant was not
selected because of her Union activities or her filing of EEO complaints. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievance in this case concerns the filling of seven vacancies for a data operator position. When the grievant, a Union steward and former Union president, was not selected, she filed a grievance claiming that she was not selected because of her Union activities and her filing of EEO complaints. The grievance was not resolved and was submitted to arbitration.
The Arbitrator found that the selecting official received a best-qualified list containing the names of 14 employees, including the grievant's. The selecting official requested four supervisors to recommend to him the employees who should be selected. The supervisors recommended employees other than the grievant. The selecting official selected seven employees who were recommended. The Arbitrator determined that the selecting official did not select the grievant because she had not been recommended.
The Arbitrator found that "the evidence proves that the promotion process required under Article 26 of the collective bargaining agreement was followed in selecting the employees chosen to fill the vacancies." Arbitrator's Opinion and Award at 7. The Arbitrator noted that in deciding whom to select under Article 26, Section 11 of the agreement, a selecting official may review recommendations of supervisors. He found that there was "no basis for concluding that seeking recommendations violates either law or the collective bargaining agreement." Id. at 8. The Arbitrator stated that the "Union conceded at the hearing that a selecting officer may request and use such recommendations." Id. at 7-8.
The Arbitrator further found that the evidence was "not sufficient to prove that [the selecting official] failed to select Grievant because of her Union activities or because of her filing of EEO complaints." Id. at 9.
Accordingly, the Arbitrator denied the grievance.
The Union contends that the Arbitrator misinterpreted the collective bargaining agreement. The Union maintains that in interpreting Article 26, Section 11, the Arbitrator failed to place any weight on Sections 9 and 10. The Union argues that these provisions indicate that it was not proper for the selecting official to request and use recommendations of selected supervisors while not requesting recommendations of supervisors who would have recommended the grievant. The Union also argues that it was not proper under the agreement for the selecting official to refuse to select the grievant solely because she was not recommended by any of the supervisors whose recommendations were requested.
The Union also contends that the Arbitrator erred (1) by stating that the Union conceded at the hearing that it was proper for the selecting official to request and use the recommendations of the specified supervisors, and (2) when he found that the evidence was not sufficient to prove that the grievant was not selected because of her Union activities or her filing of EEO complaints.
The Union maintains that it never conceded that the selecting official's actions were proper. The Union also maintains that the Arbitrator failed to give weight to evidence that supported the grievant's claim that she was not promoted because of her Union activities or her filing of EEO complaints.
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases.
The Union is attempting in its exceptions to relitigate the merits of the grievance. The exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact, evaluation of the evidence and testimony, reasoning and conclusions, and interpretation and application of the collective bargaining agreement. T