38:1183(94)AR - - HHS, SSA, San Francisco Region and AFGE Council 147 - - 1990 FLRAdec AR - - v38 p1183



[ v38 p1183 ]
38:1183(94)AR
The decision of the Authority follows:


38 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

SAN FRANCISCO REGION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 147

(Union)

O-AR-1920

DECISION

December 27, 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 Alfred G. Albert. The Union grieved a promotion action, asserting that management violated the collective bargaining agreement and Government-wide rules in making a selection. The Arbitrator denied the grievance to the extent that it sought removal of the selectee from the position. The Arbitrator awarded priority consideration to some applicants and ordered the Agency to comply with the agreement in future promotion actions.

The Union filed exceptions to the award 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 Agency filed an opposition to the Union's exceptions.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency announced a claims representative vacancy and received 16 applications. Approximately 1 month after that announcement, the Agency unilaterally reduced the area of consideration from region-wide to district-wide, and made a selection from the remaining pool of applicants.

Subsequently, a grievance was filed concerning the unilateral reduction in the area of consideration and the resultant selection. When the grievance remained unresolved, it was submitted to arbitration. The Arbitrator did not state the issue before him.

The Arbitrator found that the area of consideration for the claims representative vacancy was reduced from region-wide to district-wide without "obtain[ing] union consent for the reduction as required by the [parties'] National Agreement." Award at 2. The Arbitrator concluded that "[t]he reduction of the area of consideration . . . was compelled by the imposition of a hiring freeze in the [district.]" Id. at 3.

The Arbitrator also found that, after the area of consideration was reduced, a best qualified (BQ) list was compiled with the remaining four applicants from within the district. According to the Arbitrator, that list did not include an eligible candidate from outside the district who had been entitled to priority consideration because of an Agency error in a prior promotion action.

The Arbitrator ordered a reconstruction of the promotion package by the Agency's staffing program manager which would "illustrate the ranking and scoring of the original sixteen candidates for the announced position." Id. at 3-4. This reconstruction "became necessary because the constriction of the area of competition reduced the eligible applicants to four, [thereby] . . . eliminat[ing] the need for ranking and permit[ting] selection of any one of the four." Id. at 4. The reconstruction of the promotion package was submitted to the Arbitrator pursuant to his direction. The Arbitrator then determined that the selectee "would not have been on the best qualified list and thus not eligible for selection if the area of competition had remained region-wide." Id. at 5.

The Arbitrator concluded that the Agency had committed a procedural violation in making the challenged selection. In that regard, the Arbitrator cited Federal Personnel Manual (FPM) chapter 335, appendix A, section A-4b. That provision of the FPM provides, with respect to procedural violations, that an erroneously promoted employee may be retained in the position "'only if . . . [r]econstruction of the promotion action shows that he or she could have been selected had the proper procedures been followed at the time the action was taken; or . . . the OPM office . . . with geographic jurisdiction gives approval.'" Id. at 9.

The Arbitrator noted that if the Union had consented to the reduction in the area of consideration, the selection at issue "would have been beyond reproach." Id. at 10. The Arbitrator also noted, in this regard, that if the Union had withheld its consent, it would have deprived all employees of the promotion opportunity, because promotions could not be made from outside the district without "increas[ing] the total number of personnel in the [district]. . . ." Id. at 3. Stating that the Union would have acted "unreasonably" if it had withheld its consent to the reduction in the area of consideration, the Arbitrator concluded that the Union would have concurred in the reduction. Id. at 13.

Accordingly, the Arbitrator held that, as the selectee "could have been properly selected with Union concurrence in the reduction of the area of competition . . . , and which concurrence would under the circumstances, if withheld, have been withheld unreasonably[,]" the Arbitrator held that the incumbent should remain in the position. Id. In addition, the Arbitrator awarded priority consideration to the "best qualified applicants deprived of promotion consideration, excluding those promoted in the interim," and ordered the Agency to comply with the collective bargaining agreement in future promotion actions. Id. at 14.

III. The Union's Exceptions

The Union claims that the Arbitrator's award: (1) is based on a nonfact; (2) does not draw its essence from the parties' collective bargaining agreement; and (3) is contrary to law, rule, and regulation.

The Union contends that the award is based on a nonfact because, according to the Union, "[t]he Arbitrator erroneously assumed that the Union would have agreed to a reduced area of consideration and, if it had not, [that] the withholding of that consent would have been unreasonable." Exceptions at 4. The Union asserted that it "told the Arbitrator that it would not have agreed to a reduction in the area of consideration." Id. at 7.

The Union also contends that the award does not draw its essence from the parties' collective bargaining agreement. The Union maintains that Article 26, section 5 of the agreement "clearly and unambiguously states that a smaller area of consideration 'shall only be instituted by mutual consent of the parties.'" Id. at 10 (emphasis in original). The Union asserts that the Arbitrator incorrectly suggests that, "where the withholding of consent would be unreasonable," the Agency may unilaterally reduce the area of consideration. Id. Furthermore, the Union contends that the Arbitrator should have awarded priority consideration to the best qualified applicants who had been recently promoted because the agreement does not bar an employee from receiving priority consideration where "the entitled employee may have since been promoted." Id. at 14.

The Union's exception that the award violates law, rule, and regulation is based on the assertion that the Arbitrator violated FPM chapter 335, appendix A, section A-4 by not vacating the selection. The Union maintains that the parties' collective bargaining agreement required the Agency to seek the Union's concurrence in the reduction of the area of consideration. Therefore, pursuant to the FPM, the Union contends that the selection must be vacated because the selectee "could not have made the BQ list . . ." in a region-wide promotion action. Id. at 12.

IV. The Agency's Opposition

The Agency asserts that the Union is incorrect in stating that the award is based on a nonfact. Rather, according to the Agency, the Union failed to persuade the Arbitrator that the Union would not have agreed to a reduction in the area of consideration.

The Agency denies that the Arbitrator has imposed "a standard of reasonableness" on the collective bargaining agreement. Opposition at 3. The Agency maintains that the Arbitrator merely stated "that it would have been unreasonable for the union to have failed to provide consent [to a reduction in the area of consideration] in this specific instance." Id. The Agency also disagrees with the Union's contention "that the arbitrator's exclusion from priority consideration of those employees who have been promoted in the interim does not draw its essence from the . . . Agreement." Id. The Agency contends that the issue is "moot" where the aggrieved employees "have received promotions in the interim . . . ." Id. at 4.

Finally, the Agency contends that the award is not contrary to FPM chapter 335, appendix A, section A-4b. The Agency argues that, consistent with the FPM, an erroneously promoted employee can be retained if reconstruction of the promotion action shows that he or she could have been selected had the proper procedures been followed initially or if approval from the Office of Personnel Management is obtained. The Agency asserts that the Union "ignored [the] second option for retention . . . ." Id. at 3.

V. Analysis

A. The Award Is Not Based on a Nonfact

The Union contends that the award is based on a nonfact. In particular, the Union maintains that it did not agree to a reduction in the area of consideration. The Union contends that the award is based on the Arbitrator's presumption that the Union would have agreed to the reduction, and is therefore based on a nonfact.

We will find an award deficient because it is based on a nonfact if the central fact underlying the award is clearly erroneous and is a gross mistake of fact, but for which a different result would have been reached. See, for example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 35 FLRA 316, 323 (1990) (Defense Contract Audit Agency).

In our view, the Arbitrator's conclusion that the Union would have agreed to a reduced area of consideration, even if erroneous, does not constitute a nonfact on which the award is based. See, for example, Veterans Administration, Medical Center, Palo Alto, California, 36 FLRA 98, 105 (1990). In particular, the Arbitrator's conclusion that the Union would have concurred in the reduction of the area of consideration is not, in our view, a fact. Instead, that conclusion reflects the Arbitrator's reasoning and conclusion as to what would have occurred if the Union's consent to a reduction in the area of consideration had been sought. As the Arbitrator's conclusion does not constitute a fact, we conclude that the Union has not demonstrated that the Arbitrator's award is deficient because it is based on a nonfact.

B. The Award Draws Its Essence from the Parties' Collective Bargaining Agreement

The Union contends that the collective bargaining agreement expressly states that an area of consideration may only be reduced with the parties' mutual consent. Therefore, the Union states that the Arbitrator improperly suggested that, "where the withholding of consent would be unreasonable," the Agency may unilaterally reduce the area of consideration. Exceptions at 10.

For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party alleging such failure must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the arbitrator's obligation; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See Defense Contract Audit Agency, 35 FLRA at 322.

The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the agreement under any of the above tests. The Arbitrator's award was based on his interpretation of the agreement, in conjunction with the circumstances surrounding the challenged promotion action, particularly the Agency's district-wide freeze on hiring. We have no basis on which to conclude that the Arbitrator's interpretation of the agreement is implausible, irrational, or unconnected to the wording and purpose of the agreement.

In arguing that the Arbitrator should have awarded priority consideration to the best qualified applicants who have been promoted in the interim, the Union also fails to establish that the award does not draw its essence from the collective bargaining agreement. Nothing in the agreement requires that priority consideration be awarded to such employees.

The interpretation of the collective bargaining agreement is a matter solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990). The Union's arguments constitute mere disagreement with the Arbitrator's interpretation and application of the agreement and, consequently, provide no basis for finding that the award does not draw its essence from the agreement.

C. The Award Is Consistent With FPM Chapter 335

In pertinent part, FPM chapter 335, appendix A, section A-4b(1)(b) states that an erroneously promoted employee "may be retained in the position only if . . . [r]econstruction of the promotion action shows that he or she could have been selected had the proper procedures been followed at the time the action was taken[.]"

The Arbitrator determined, based on his conclusion that the Union would not have withheld its consent to a reduction in the area of consideration, that the incumbent could have been selected had the proper procedures been followed at the time the promotion action was taken. In view of this arbitral determination, we conclude that the award does not conflict with the FPM.

However, even assuming that the Union would have withheld its consent to a reduction in the area of consideration, the FPM does not require that the selectee be removed from the claims representative position. FPM chapter 335, appendix A, section A-4a provides, in part, that:

The nature and extent of [corrective] actions to be taken in any case have to be determined on the basis of all the facts in the case, with due regard to the circumstances surrounding the violation, to the equitable and legal rights of the parties concerned, and to the interests of the Government.

In denying the Union's request that the i