35:0144(17)AR - - IRS, Des Moines, Iowa District and NTEU Chapter 4 - - 1990 FLRAdec AR - - v35 p144



[ v35 p144 ]
35:0144(17)AR
The decision of the Authority follows:


35 FLRA No. 17

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNAL REVENUE SERVICE

DES MOINES, IOWA DISTRICT

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 4

(Union)

0-AR-1714

DECISION

March 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Thomas P. Gallagher 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 to the Agency's exceptions.

The Arbitrator concluded that the Agency's failure to consider the grievant's prior experience as a Revenue Agent in its evaluation of the grievant's potential to satisfactorily perform the duties of Revenue Agent in the vacant positions for which she applied violated the parties' collective bargaining agreement. As his award, the Arbitrator ordered the Agency to grant the grievant priority consideration for the next appropriate vacancy for which the grievant is qualified.

For the reasons stated below, we conclude that the Agency has failed to demonstrate that the award is deficient, and we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Arbitrator found that the grievant began her employment with the Agency in 1969 as a GS-4 employee in the Collections Division and that sometime prior to 1976, she was promoted to be a GS-5 Tax Auditor. The Arbitrator noted further that in 1976, after the grievant had advanced to grade GS-9 as a Tax Auditor, she applied for and was selected for a position as a GS-7 Revenue Agent. The Arbitrator found that in the next 2 years the grievant advanced first to grade GS-9 and then to grade GS-11 and that she served as a GS-11 Revenue Agent until 1981. In 1981, the grievant requested and was granted a transfer to her previous classification as a GS-9 Tax Auditor.

On March 2, 1987, the grievant applied for 1 of 12 Revenue Agent vacancies at the GS-5, GS-7 and/or GS-9 level in the Des Moines District. Pursuant to Article 13 of the parties' agreement, the Agency appointed a ranking official to determine the potential of each applicant to perform as a Revenue Agent. Article 13, Section 4.D.1.(b) of the parties' collective bargaining agreement requires ranking officials to "consider the appraisal, relevant experience and training, relevant incentive awards, and such other relevant material or evaluative methods deemed necessary[]" in determining a candidate's potential. Award at 10. In order to evaluate the potential of each candidate, the ranking official was given each candidate's supervisory appraisal, application for the position, and official personnel folder (OPF).

The rating assigned to each candidate is a combination of two elements. The Personnel Office assigns a numerical rating based on the applicant's latest evaluation. Id. at 13. The ranking official assigns each candidate a numerical rating based on the ranking official's determination of each candidate's potential to perform the critical elements of the job for which the candidate has applied. Id. The ranking official then prepares a list of the highly qualified and best qualified candidates for the position, based on a cut-off score determined in conjunction with the Personnel Office. Id.

The grievant's combined score, based on both her latest evaluation and the ranking official's evaluation of her potential, was not high enough for her to be placed on the highly qualified list. She was, therefore, not selected for any of the 12 vacancies for which she had applied. The Union filed a grievance challenging the grievant's nonselection.

On April 1, 1987, the Agency announced an additional 30 to 40 Revenue Agent positions within the Des Moines District and the grievant also applied for one of these vacancies. The same ranking official was named for this series of vacancies. The Arbitrator noted that he followed the same ranking process he had used for the earlier vacancy, although the grievant's evaluation had been revalidated because her original evaluation was now more than 6 months old. Award at 17, 18. The ranking official gave the grievant the same score as the one she had received as a result of her earlier application for the Revenue Agent position. Id. at 18. The Arbitrator noted further that, although the cut-off score was lower because of the larger number of vacancies, the grievant's combined score was not high enough for her to be placed on the highly qualified list. Id. The Union filed a second grievance concerning the grievant's nonselection for any of the vacancies included in the April 1, 1987 announcement.

Neither of the two grievances was resolved and they were submitted to arbitration. The Arbitrator stated that the parties agreed to merge the grievances as they raised substantially the same issues. The parties agreed at the arbitration hearing that the issues to be resolved by the Arbitrator were as follows:

1. Whether [the supervisor's] Annual Appraisal of the grievant, dated August 27, 1986, was done in accord with Article 12, Section 4, Paragraphs B and C, of the labor agreement, and whether [the supervisor's] April 15, 1987, revalidation of the Annual Appraisal of August 27, 1986, was done in accord with Article 12, Section 4, Paragraphs B and C, of the labor agreement.

2. Whether [the ranking official's] actions as the ranking official were done in accord with Article 13, Sections 1 and 4, of the labor agreement.

Award at 19.

The Arbitrator rejected the Union's claims with respect to issue 1. The Arbitrator's findings with respect to this issue were not excepted to and, therefore, they will not be addressed in this decision.

As to the second issue, the Arbitrator found that the ranking official violated the parties' agreement when he failed to consider the grievant's prior experience as a Revenue Agent. The Arbitrator noted that the ranking official evaluated the grievant's potential to perform as a Revenue Agent based only on her last evaluation. Award at 26. The Arbitrator found that "[d]espite the availability to [the ranking official] of this most relevant information, he scored the grievant's potential to perform a job she had already performed for five years without giving any consideration to that previous experience." Id. at 28. The Arbitrator concluded that the ranking official's "failure to consider the most relevant evidence available . . . about the grievant's potential to perform" as a Revenue Agent violated the parties' collective bargaining agreement. Id. at 28-29.

The Arbitrator concluded that based on the grievant's long experience as a Revenue Agent, the grievant should have been rated in a manner which would have placed her on both the highly qualified and best qualified lists for each vacancy. The parties had stipulated to the Arbitrator that if he decided that the grievant should have been included on a best qualified list, the Arbitrator could order that the grievant receive priority consideration for the next available vacancy. Award at 29. Accordingly, the Arbitrator ordered that the Agency grant the grievant "priority consideration for the next . . . 'appropriate vacancy' for which the grievant is qualified." Id. at 31.

III. The Agency's Exceptions

The Agency contends that: (1) the Arbitrator's award is based on a gross mistake of fact, but for which a different result would have been reached; and (2) the remedy violates law.

In its first exception, the Agency argues that the Arbitrator erroneously assumed that the grievant had performed successfully during her prior tenure as a Revenue Agent. According to the Agency, this assumption was inherent in the Arbitrator's determination that the ranking official had failed to consider the grievant's prior experience as a Revenue Agent and that the grievant should have been rated higher because of that experience. Exceptions at 12. The Agency contends that the Arbitrator's assumption was erroneous because, near the end of the grievant's tenure as a journeyman GS-11 Revenue Agent, the grievant was denied a within-grade increase because her performance was determined to be not at an acceptable level of competence. The Agency concludes that if the Arbitrator had properly evaluated these facts, a different result would have been reached. Id. at 14.

As its second exception, the Agency contends that the Arbitrator's remedy is contrary to law. The Agency claims that the parties and the Arbitrator interpreted Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration) as providing the proper evidentiary standard for determining whether to adjust the rating given by the ranking official to the grievant in assessing her potential to perform in the jobs for which she had applied. Exceptions at 15 n.5. According to the Agency, Social Security Administration provides that an arbitrator is not authorized to grant a grievant a specified performance rating unless the arbitrator is able to determine what rating the grievant's work product or performance would have received if the grievant had been properly appraised.

The Agency contends that the Arbitrator's findings are inconsistent with the standards set forth in Social Security Administration. The Agency argues that although the Arbitrator found that the Agency violated the collective bargaining agreement by not considering the grievant's prior experience, the Arbitrator assigned new ratings to the grievant without determining on the basis of the record what the grievant's rating would have been had the contract not been violated. The Agency argues further that the Arbitrator is not "empowered to determine what he thinks the ratings should have been, however, when there is nothing in the record to establish what the ratings would have been." Exceptions at 16 (emphasis in original).

According to the Agency, the record does not establish what the grievant's rating would have been had the ranking official fully considered the grievant's prior experience. The Agency contends that had the ranking official fully considered the grievant's prior experience, he would have found not only that she was a Revenue Agent in the past, but also that she had been denied a within-grade increase while in that position. The Agency concludes that "[w]ithout testimony from the ranking official or some other evidence to indicate how these two pieces of information would affect the grievant's ability to perform at a fully successful level . . . 'the record does not enable the [A]rbitrator to determine what the grievant's rating would have been[,]'" citing Social Security Administration. Exceptions at 17-18.

Consequently, the Agency concludes that the Arbitrator's remedy is deficient and that it "should be modified to require that the grievant be reevaluated in accordance with the requirements of the collective bargaining agreement." Id. at 18.

IV. The Union's Opposition

The Union contends that the award is not based on a gross mistake of fact. The Union argues that the Agency's claim amounts to nothing more than an attempt "to relitigate its disagreement with the Arbitrator's factual determination made from the record." Opposition at 4.

According to the Union, the award is based on the fact that the ranking official failed to consider the grievant's previous experience as a Revenue Agent. The Union claims that the Agency (1) concedes that the Arbitrator correctly concluded that the ranking official failed to consider the grievant's prior experience, and (2) "challenges the Arbitrator's interpretation of the quality of the Grievant's prior experience[.]" Id. at 7 (emphasis in original). According to the Union, the Agency "posits a subjective interpretation of an important, but clearly collateral fact and assumes it to be the objectively ascertainable central fact in the matter." Id. at 5 (emphasis in original).

The Union asserts that the Arbitrator "carefully weighed the record evidence concerning the Grievant's prior performance as a Revenue Agent" and that the Agency's exception amounts to nothing more than a mere disagreement with the Arbitrator's interpretation of the facts in the record before him. Id. at 9. Consequently, the Union argues that the Agency's "efforts to attempt to relitigate this case and concoct factual disagreements with the solid record based findings of the Arbitrator cannot be sustained." Id. at 12.

The Union also contends that the Arbitrator's award is consistent with the Authority's decision in Social Security Administration. The Union asserts that the Arbitrator's findings concerning the rating the grievant would have received if her 5 years' prior experience as a Revenue Agent had been considered by the ranking official were based on the record including the ranking official's testimony that another applicant was awarded a higher ranking based on a mere 5 months' prior experience as a Revenue Agent.

V. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

When a party contends that an arbitrator's award is deficient because it is based on a nonfact, that party must demonstrate that the central fact underlying the award is erroneous and is a gross mistake of fact, but for which a different result would have been reached. See, for example, U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168 (1988).

The Agency contends that the Arbitrator failed to consider the fact that the grievant was denied a within-grade increase as a GS-11 Revenue Agent. The Agency asserts that "but for the [A]rbitrator's misapprehension as to the level of the grievant's prior performance as a Revenue Agent . . . a different result would have been reached." Exceptions at 14.

In our view, the Agency has misconstrued the central fact underlying the Arbitrator's award. The Arbitrator found that the ranking official's failure to consider the grievant's prior experience violated the parties' agreement. Nothing in the record establishes that the Arbitrator relied on the quality of the grievant's prior experience in reaching his conclusion that the ranking official violated the collective bargaining agreement. As there is no basis on which to conclude that the Arbitrator relied on the quality of grievant's prior experience as a Revenue Agent, there is no basis on which to conclude that an alleged erroneous assumption about that matter was a central fact underlying the award.

We conclude that the Agency's first exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence. Exceptions which constitute nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence provide no basis for finding an award deficient. See American Federation of Government Employees, Local 1568 and United States Department of Housing and Urban Development (HUD), 33 FLRA 687 (1988) and the cases cited therein. Accordingly, the Agency's first exception does not establish that the Arbitrator's award is based on a nonfact.

B. The Remedy Is Not Contrary to Law

Management's right to make selections under section 7106(a)(2)(C) of the Statute includes the right to make the actual selection or appointment. An agency may be ordered to select a particular employee for promotion only if an arbitrator finds that the employee was affected by improper agency action that directly resulted in the failure of the employee to be promoted when the employee otherwise would have been. See, for example, American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88 (1988). Where there is no basis for an award of a retroactive promotion but where there is evidence that the agency has committed procedural errors in the selection process, other remedies, such as rerunning the selection process or awarding the grievant priority consideration for the next vacancy, may be instituted. See, for example, Veterans Administration, Winston-Salem, North Carolina and American Federation of Government Employees, Local 2880, 27 FLRA 44 (1987).

In this case, the Arbitrator found that the Agency violated the parties' collective bargaining agreement when the ranking official failed to consider the grievant's prior experience in ranking her candidacy for the Revenue Agent positions. Accordingly, unless the Arbitrator's remedy is otherwise inconsistent with law, rule, or regulation, his remedy requiring the grievant to receive priority consideration for the next available Revenue Agent position is appropriate.

The Agency contends that the remedy is contrary to law because it is inconsistent with the standards established by the Authority in Social Security Administration. In that case, the Authority held that an arbitrator may cancel a grievant's performance rating when the arbitrator determines that (1) management has not applied the established elements and standards, or that (2) management has applied the established elements and standards in violation of law, regulation, or a properly negotiated provision of the parties' collective bargaining agreement. The Authority held further that an arbitrator may direct management to grant a grievant a particular rating when the arbitrator is able to determine on the basis of the record what the grievant's rating would have been if management properly had applied the established standards. Social Security Administration, 30 FLRA at 1160.

This case concerns a selection action under section 7106(a)(2)(C) of the Statute, not a performance evaluation under section 7106(a)(2)(A) and (B) of the Statute. Nothing in Social Security Administration indicates that the standards established therein were to be applied to selection actions under section 7106(a)(2)(C). In addition, the Authority previously has provided priority consideration as an arbitral remedy in the absence of the findings required by Social Security Administration. See Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA 452, 456 n.6 (1981).

The Arbitrator applied the Social Security Administration standard pursuant to the parties' request and neither party contests the applicability of the standard before the Authority. See