38:0028(5)AR - - HHS, SSA and AFGE Local 2608 - - 1990 FLRAdec AR - - v38 p28
[ v38 p28 ]
The decision of the Authority follows:
38 FLRA No. 5
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 7, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Vincent D. McDonnell 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 exception.
The Arbitrator found, among other things, that candidates who were given priority consideration for a job vacancy, but who were subsequently rejected, were to be given a written explanation for their non-selection.
For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the Agency's exception.
II. Background and Arbitrator's Award
The Union filed two grievances asserting that the Agency had violated the parties' agreement in filling a job vacancy. The grievances were not resolved and were submitted to arbitration.
The Arbitrator left determinations of the merits of the cases to separate subsequent arbitrations and ruled only on one issue common to both grievances. Absent agreement by the parties, the Arbitrator framed the issue as follows:
Did the employer . . . violate the national agreement between the [the Agency] and [the Union] when it published the vacancy and filled job vacancy RO-11-330-88J. If so what is the remedy?
Award at 1.
As pertinent here, the Arbitrator interpreted "bona-fide consideration" in Article 26, Section 8A of the parties' agreement to mean that those priority consideration candidates who were not selected for the position were to receive an explanation of rejection. Id. at 3-4. The Arbitrator held that this explanation "must be in writing and grievable to arbitration if the employee does not accept the reason for the non competitive rejection." Id. at 8.
III. Positions of the Parties
A. The Agency's Exception
The Agency asserts that the Arbitrator's award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. Exception at 1. The Agency maintains that the Arbitrator's holding "that failure to promote a candidate given priority consideration requires a written explanation to the employee and that such an action would be grievable to arbitration[,] . . . is deficient because it adds a substantive item to the agreement of the parties." Id. at 3.
The Agency asserts that quarterly "written notice to the union" of statistics under Article 26, Section 8D is all that is required by the agreement. Id. at 5. Furthermore, the Agency asserts that "[n]otification in writing of reasons for non-selection would be a radical departure from the specific language in the contract and existing promotional procedures" of the Agency. Id. at 6.
Although the Agency also objects to the Arbitrator's decision that this failure to promote is "grievable to arbitration," the Agency did not present any argument in support of this contention.
B. The Union's Opposition
The Union contends that the Agency's exception "has failed to meet the 'essence' test" and "merely expresses disagreement with the Arbitrator's interpretation of what 'bona fide consideration' . . . entails." Opposition at 1-2. Furthermore, the Union argues that the Union notification under Article 26, Section 8D provides for statistics on priority considerations and "is not a waiver of employee rights" to receive a written explanation of non-promotion under priority considerations. Id. at 2-3.
The Union also maintains that the failure to promote a priority consideration candidate is fully grievable and arbitrable under Article 24, Section 2A of the agreement, which defines grievance as "any matter relating to the employment of the employee." Id. at 2 (emphasis omitted).
IV. Analysis and Conclusion
The issue presented here is whether the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient because it fails to draw its essence from the agreement,