[ v40 p94 ]
40:0094(12)AR
The decision of the Authority follows:
40 FLRA No. 12
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 Felix A. Nigro filed by the Union 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.
The Union filed a grievance alleging that the Agency violated three provisions of the Agency's Merit Placement Plan when it failed to select the grievant for the position of GS-9 contract specialist. The Arbitrator denied the grievance.
For the following reasons, we conclude that the exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
When the Agency failed to select the grievant for a posted contract specialist position, the Union filed a grievance alleging that the Agency had violated sections 8-1.C, 6-3.B.4, and 6-3.C of its Merit Placement Plan.(1) When the grievance was not resolved, the matter was submitted to arbitration.
The Arbitrator framed the issue before him as follows:
Did management violate the following provisions of the Merit Placement Plan issued on July 1, 1985?
Section 8-1[.]C
Section 6-3[.]B[.]4
Section 6-[3.]C
Award at 1.
The Arbitrator concluded that the Agency did not violate the three sections of the Merit Placement Plan. The Arbitrator stated that no violation of section 6-3.B.4 occurred because the selecting official "was not on the rating panel." Id. at 3. With respect to section 6-3.C, the Arbitrator stated that there was no violation because the selecting official did not rate the grievant's application or review her rating. Id. The Arbitrator rejected the Union's "attempt[] to expand its grievance" to encompass provisions of the Merit Placement Plan which had not been cited in the written grievance, and, as his award, denied the grievance. Id. at 4.
III. Positions of the Parties
The Union states that the award is "contrary to law, rule, or regulation and . . . is deficient on grounds similar to those applied by Federal courts in private sector labor-management relations." Exceptions at 1. The Union claims that the Arbitrator's decision to consider only the three provisions of the Merit Placement Plan cited in the written grievance constitutes "wrongful exclusion of relevant evidence." Exceptions at 1. The Union maintains that the Arbitrator's refusal to consider other provisions constitutes "harmful error" and is "contrary to contract law whereby a contract is considered an integrated document taken as a whole, from the four-corners of the agreement." Id. The Union asserts that the Agency violated sections 4-3, 5-3.C, 10-4.A.6, 10-4.G, 10-4.H, 10-4.I, 11-3, and Appendix D of the Merit Placement Plan. Id. at 4-6.
In addition, the Union asserts that the Arbitrator failed to understand "the procedures and regulatory requirements regarding Federal Sector position qualification requirements and selection-related conduct." Id. at 8. To support this claim, the Union asserts that the Arbitrator's finding that there was no violation of section 8-1.C of the Merit Placement Plan is incorrect because the comprehensive justification required by that provision for not filling the vacancy "was never prepared nor entered into evidence" at the hearing. Id. at 6-7. Furthermore, the Union claims that the Arbitrator failed to address whether the selecting official's actions "constituted . . . constructive participation in the rating process[,]" and, therefore, violated sections 6-3.B.4 and 6-3.C of the Merit Placement Plan. Id. at 7.
The Agency maintains that the Union's exceptions should be denied because they constitute "nothing more than a general disagreement with the findings of the [A]rbitrator." Opposition at 1.
IV. Analysis and Conclusions
We construe the Union's claim that the Arbitrator wrongfully excluded relevant evidence as a claim that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991) (Hill Air Force Base) (arbitrator's acknowledged failure to give "serious consideration" to the union's position constituted failure to conduct a fair hearing).
In this case, the Arbitrator determined that the grievance encompassed only three provisions of the Merit Placement Plan. The Arbitrator decided that additional provisions of the Plan were not properly before him only after considering the Union's arguments and reviewing an Authority decision which, according to the Union, supported its position. There is no basis on which to conclude that the Arbitrator failed to consider pertinent and material evidence in determining the issues before him. As such, the Union has failed to establish that the Arbitrator denied the Union a fair hearing.
Moreover, there is nothing in the record to show that the parties stipulated the issue to be resolved in arbitration. The Arbitrator framed the issue as it was stated in the written grievance. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. For example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221-22 (1990). Here, the award is directly responsive to the issue as the Arbitrator framed it. Consequently, the Union has not demonstrated that the Arbitrator failed properly to resolve the issue involved in the grievance. See U.S. Department of the Army, Combined Arms Center, Fort Leavenworth, Kansas and American Federation of Government Employees, Local 738, 39 FLRA No. 75, slip op. at 7 (1991).
We construe the Union's argument that the Arbitrator did not properly interpret sections 6-3.B.4, 6-3.C, and 8-1.C of the Merit Placement Plan as an exception that the award fails to draw its essence from the parties' agreement.(2) To establish that an award is deficient because it does not draw its essence from an agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard to the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213, 1216 (1990).
The Union has not demonstrated that the award is deficient under any of these tests. Instead, we conclude that the Union's argument is an attempt to relitigate the merits of the grievance before the Authority and constitutes mere disagreement with the Arbitrator's decision that the Agency did not violate the Merit Placement Plan. Disagreement with an arbitrator's evaluation of evidence and findings and conclusions based thereon provides no basis for finding an award deficient. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 774 (1990). Accordingly, this exception does not demonstrate that the award is deficient.
Finally, although the Union asserts that the award violates law, rule, or regulation, it did not cite a specific provision of law, rule, or regulation that was violated or present any argument in support of this assertion. We will, therefore, not consider this aspect of the exceptions here.
V. Decision
The Union's exceptions are denied.
SECTION 6. CANDIDATE EVALUATION
6-3. Rating Procedures.
B. Rater Qualifications.
4. A prospective selecting official will not participate in [the] rating for his/her vacancies, unless that official is the only person in the workforce who meets the rater qualifications requirements of (1) and (2) above. When a selecting official is used as a rater, the Personnel Staffing Specialist will assure that the rating criteria established and the rating decisions made are related to the actual job duties and responsibilities and are not designed to favor or provide preferential treatment to any candidate(s). The Staffing Specialist will assure that the respective union President or designated representative is notified.
C. The rating of applications shall be performed only by persons in job series 0203 or 0212 or by properly designated rating panels of occupational experts and shall be reviewed by persons holding the grade of GS-9 or above in job series 0212.
SECTION 8. SELECTION
8-1. General.
C. Management at its discretion may decide not to fill a vacancy even after receiving a properly developed Referral and Selection Register. If the decision is made not to fill a position after receiving a "full" selection register, i.e., at least three available candidates, the register will be returned to the Civilian Personnel Office with comprehensive justification and written concurrence from a higher management level. The Civilian Personnel Officer will review the documentation and determine if the failure to make a selection is supportable. If not supportable, the CPO will advise the appropriate Staff/Director of the non-selection and recommend that selecting official make a selection or that selection be made by next appropriate official. In no instances will selections be deferred or delayed solely to circumvent the requirements of this Plan and the Federal Merit Promotion Program. All Referral and Selection Registers will be issued with an expiration date of seven working days from date of issue. Referral and Selection registers will not be valid after expiration date unless written justification is furnished prior to expiration date requesting an extension by the selecting official and approved by the Civilian Personnel Officer or his designee.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The pertinent provisions of the Merit Placement Plan are set forth in the appendix to this decision.
2. For purposes of this determination, we construe the Merit Placement Plan to be an agreement negotiated by the parties.