39:0457(36)AR - - DOD, Army Chemical and Military Police Centers, Fort McClellan, AL and AFGE Local 1941 - - 1991 FLRAdec AR - - v39 p457
[ v39 p457 ]
The decision of the Authority follows:
39 FLRA No. 36
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
ARMY CHEMICAL AND MILITARY POLICE CENTERS
FORT McCLELLAN, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 8, 1991
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 Jack Clarke. A grievance was filed alleging pre-selection in the promotion of an employee to the position of foreman. The Arbitrator denied the grievance.
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.
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's activities include the training of recruits. As part of their training, recruits are issued uniforms. The issuance, fitting, and alteration of these uniforms is done at the female and male Clothing Initial Issue Points (CIIPs). The CIIPs employ fabric workers, commonly referred to as fitters, and sewing machine operators. Employees work under the supervision of a fabric worker foreman.
In May 1988, the foreman of the female CIIP retired. The vacancy was announced and applications were submitted for the position. Four applicants were referred to a selection panel as "best qualified." Two of these applicants were employed as fitters in the female CIIP and one of them was recommended by the panel for selection. The selecting official adopted the panel's recommendation. The other employee in the female CIIP who had applied for the position and had not been selected filed a grievance. The grievance alleged that the individual who was selected for the promotion had been pre-selected because the Agency had afforded her the advantage of additional hours of work and administrative training not made available to other fitters. The grievance was not resolved and was submitted to arbitration.
Although the Arbitrator did not specifically state the issue to be resolved, he noted the contentions of the Union and the Agency with respect to (1) the timeliness of the grievance; (2) whether there had been pre-selection in the promotion process because the individual selected had received an unfair advantage; and (3) the Union's requests that the Arbitrator "direct the Agency to vacate the . . . [f]oreman position until such time as the [g]rievant is allowed time equal to that afforded [the selectee] to train for that position and to then rerun the selection" or, alternatively, "place the [g]rievant in a position of equitable pay and stature acceptable to her." Award at 12-13; 15.
The Arbitrator first determined that the grievance had been appealed to arbitration in a timely manner.
On the merits, the Arbitrator noted that it was undisputed that for at least 3 years prior to her promotion, the selectee had been allowed to work more hours and had received more specialized training than the grievant. At the arbitration hearing, the Agency asserted that the selectee was offered extra work hours because she was dependable and that the additional training she had received related only to simple tasks. The Agency argued that such treatment of the selectee was not tantamount to pre-selection, particularly because the additional training and assignments had been given to her by the recently retired foreman and not by anyone involved in the selection process.
The Arbitrator concluded that the previous foreman's special treatment of the selectee was motivated by personal friendship and favoritism. He noted that merit system principles set forth at 5 U.S.C. º 2301(b)(8) protect employees against personal favoritism and that 5 U.S.C. º 2302(b)(11) makes it a prohibited personnel practice to take or fail to take a personnel action if such action violates any law, rule, or regulation implementing or directly concerning merit system principles set forth in 5 U.S.C. º 2301. Accordingly, the Arbitrator determined that the previous foreman's actions were in violation of sections 2301 and 2302. The Arbitrator stated that if such favoritism had been limited to additional hours and training opportunities, he would be "inclined to deny the grievance on the basis that everybody in the female CIIP including the [g]rievant had long been aware of the advantages being afforded [the selectee] but made no complaint until shortly before [the foreman] retired." Id. at 18. However, the Arbitrator concluded that the favoritism toward the selectee "extended directly into the process whereby [she] was selected to fill the [f]oreman vacancy." Id. In this regard, the Arbitrator noted that the retiring foreman was asked to appraise the selectee, the grievant, and one other employee in the female CIIP in connection with their applications for the foreman position. The foreman provided such an appraisal for the selectee, but declined to appraise the other two applicants. The Arbitrator further noted that, in the appraisal of the selectee, the foreman affirmatively recommended the selectee for the promotion based in part upon the training and the opportunities to serve as acting foreman that the foreman had provided to the selectee.
The Arbitrator concluded that the foreman's actions with respect to the appraisal further evidenced personal favoritism in favor of the selectee and that the "probable effect of [the foreman's] action on behalf of [the selectee] and her inaction relative to the other CIIP applicants was to leave the members of the selection panel with nothing against which they could balance [the selectee's] appraisal." Id. at 19. The Arbitrator emphasized that the members of the selection panel were limited to information contained in the applicant's record and that the advantage to the selectee was, therefore, obvious.
The Arbitrator found that the "Agency's promotion of [the selectee], having been tainted by . . . personal favoritism . . . was inconsistent with . . . [the parties' collective bargaining] [a]greement and therefore constituted a procedural violation." Id. at 20. The Arbitrator also concluded that the promotion was inconsistent with merit promotion principles and the Agency's internal promotion plan. However, the Arbitrator stated that because the selectee met the requirements for promotion and could have been selected for the promotion had the proper procedures been followed, the promotion did not constitute a "regulatory violation" of Office of Personnel Management (OPM) requirements, and he was not, therefore, required under Federal Personnel Manual (FPM) chapter 335 to direct the Agency to rerun the selection.
The Arbitrator then considered whether, in the circumstances of the case before him, he should, in his discretion, direct the Agency to rerun the selection process. In this regard, the Arbitrator looked to section A-4a(1) of FPM chapter 335, appendix A for guidance in connection with determining appropriate corrective action.(1)
The Arbitrator determined that, although the employee selected for the promotion was the benefactor of favoritism, the employee herself had done nothing wrong. The Arbitrator noted that it was "simply impossible to take [the selectee's] supervisory experiences away from her; she knows what she has learned." Id. at 22. The Arbitrator concluded that even if he were to direct that the selection be rerun, the selectee's supervisory experiences would still exceed the grievant's at the time of another selection because the Arbitrator could not direct that the selectee be removed from her position as foreman while either the selection process was rerun or the grievant received additional training. The Arbitrator stated that he could not ignore the fact that although the grievant had long been aware of the additional training that the selectee had been receiving, the grievant had said nothing about it. Finally, the Arbitrator noted that the stability of the operation of the female CIIP would be enhanced by allowing the selection to stand.
In conclusion, the Arbitrator stated that "affording due regard to the unique facts of the present case, the circumstances surrounding the violation, the equitable rights of the [g]rievant, the Union and [the selectee], and the interests of the Government as the Arbitrator is required . . . to do, the Arbitrator finds that it would be improper to direct the Agency to vacate the Fabric Worker (Tailoring) Foreman job awarded to [the selectee]. The Arbitrator must therefore deny the grievance." Id. at 23. The Arbitrator did not discuss the Union's requested alternative remedy of placing the grievant in a position equivalent in pay and stature to that of foreman.
As his award, the Arbitrator stated: "[t]he Arbitrator finds the grievance to be arbitrable. Because no remedy is appropriate the Arbitrator denies the grievance." Id. at 24.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator found that the Agency had committed "[a] violation of 5 USC 2301(b)(8) by granting 'personal favoritism' to the selectee, . . . [a] violation of 5 USC 2302(a)(1) [and] (b)(11), . . . [and] [a] contract violation." Exceptions at 1. The Union states that "in [the] face of all of his overwhelming findings the Arbitrator dismissed the grievance because he [felt] that the only remedy that he could grant would be an exercise in futility." Id. at 2. The Union acknowledges the Arbitrator's conclusion that he could not grant the first remedy it had requested. However, relying on cases where the Authority modified arbitrator's awards of promotions by allowing for priority consideration instead, the Union argues that the Arbitrator could have ordered a different remedy. Id. The Union suggests several alternatives to the remedies it requested at the hearing that the Authority could now order. Finally, the Union maintains that "the Arbitrator must fashion a remedy to correct the wrong by the Agency, to the extent permitted by law, rule and regulation" and requests the Authority to modify the award by granting one of the remedies it suggests. Id. at 3.
B. The Agency
The Agency argues that, before the Authority may modify an arbitration award, there must be a finding that the award is deficient on one of the grounds set forth in section 7122(a) of the Statute. The Agency contends that nowhere in its exceptions does the Union allege that the Arbitrator's decision to provide no remedy is contrary to any law, rule or regulation or "contrary to remedies applied by Federal courts in private sector cases." Opposition at 1.
The Agency asserts that the cases relied on by the Union do not stand for the proposition that the Arbitrator's determination "that no appropriate remedy could be fashioned in the present case" was contrary to law or regulation. The Agency further contends that the Arbitrator properly reviewed the facts and weighed the equities and that, in accordance with FPM chapter 335, the Arbitrator appropriately determined that no remedy was warranted. Therefore, the Agency maintains that the Arbitrator's award is not deficient.
IV. Analysis and Conclusions
Although not specifically stated as such, we construe the Union's exceptions as alleging that the Arbitrator's award is contrary to law. The Union appears to argue that because the Arbitrator found that the Agency had violated law and the parties' collective bargaining agreement, the Arbitrator was legally obligated to fashion a remedy.
We conclude that the Union fails to establish that the award is deficient. In other words, the Union has not shown that the Arbitrator was obligated by law to find that the grievant was entitled to a remedy because of his findings of personal favoritism. See National Association of Government Employees, Local R3-112 and U.S. Department of the Army, 97th Reserve Command, 36 FLRA 261, 265-66 (1990) (exceptions were denied because the union failed to show that the arbitrator was obligated by law to find that the grievant was entitled to any remedy because of the agency's admitted violation of the collective bargaining agreement).
Contrary to the argument of the Union, the Arbitrator's finding of a violation of merit system principles under section 2301(b)(8) provides no basis for finding the award deficient. As we noted in Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, AFL-CIO, Local 1364, 35 FLRA 754, 762 (1990) (Carswell Air Force Base), the merit system principles are hortatory and are not self-executing. We held that because they are not self-executing and, alone, cannot form the basis of a legal action, they cannot independently authorize or serve as the basis for an arbitration remedy. Id. Accordingly, we find no obligation on the part of the Arbitrator to have granted a remedy because of his finding of a violation of merit system principles.
Contrary to the argument of the Union, we conclude that the Arbitrator's finding of a prohibited personnel practice under section 2302(b)(11) also provides no basis for finding the award deficient. We find no obligation on the part of the Arbitrator to have granted a remedy because his finding of a prohibited personnel practice under section 2302(b)(11) is inconsistent with law. In Carswell Air Force Base, we explained that the finding of a prohibited personnel practice under section 2302(b)(11) requires a two-step analysis: the employee must show that (1) the personnel action violates a law, rule, or regulation; and (2) the law, rule, or regulation violated is one that implements or directly concerns merit system principles. Id. Therefore, we advised that after an arbitrator finds a violation of merit system principles, the arbitrator cannot award a remedy unless the remedy is based on a law, rule, or regulation implementing or concerning those merit system principles. Id. In this case, after the Arbitrator found a violation of merit system principles set forth in section 2301(b)(8), the Arbitrator did not find a violation of law, rule, or regulation implementing or concerning those principles. Consequently, the Arbitrator erred by finding a prohibited personnel practice under section 2302(b)(11). However, in terms of the Union's exceptions to the award, and in accordance with our decision in Carswell Air Force Base, the Arbitrator did not err by failing to provide a remedy for the violation of merit system principles.
Furthermore, we find that the Arbitrator properly considered what corrective action was appropriate in accordance with FPM chapter 335, appendix A, section A-4a. In refusing to grant a remedy, the Arbitrator considered the circumstances surrounding the selection as well as the rights and interests involved. The Union has not shown in the circumstances of this case that the granting of any remedy was required by the FPM. See U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA No. 94 (1990) (arbitrator's refusal to remove incumbent of a position after considering the circumstances surrounding the selection in accordance with FPM chapter 335, appendix A, section A-4a was found not to conflict with the FPM).
In sum, the Union has not demonstrated that the laws or collective bargaining agreement provisions cited by the Arbitrator obligated the Arbitrator to provide a remedy. Accordingly, the Union fails to establish that the award is deficient. In our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's determination that no remedy was warranted and an attempt by the Union to ha