40:1243(109)AR - - Air Force, Ogden Air Logistics Center, Hill AFB and AFGE Local 1592 - - 1991 FLRAdec AR - - v40 p1243
[ v40 p1243 ]
The decision of the Authority follows:
40 FLRA No. 109
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles A. Askin 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 did not file an opposition to the Union's exceptions.
The grievance alleged that the Agency violated the parties' collective bargaining agreement by terminating the grievants' details. The Arbitrator determined that the Agency's action did not violate the parties' collective bargaining agreement and denied the grievance.
For the following reasons, we find that the Union has failed to establish that the award is deficient. Therefore, the Union's exceptions will be denied.
II. Background and Arbitrator's Award
The grievants are wage grade (WG) employees assigned to WG-10 positions. This grievance involves the detail of the grievants to temporary assignment duties as general schedule (GS) Industrial Engineering Technicians. The assignment to the GS-7 positions "technically was a downgrade from [the grievants'] regular assignment[;]" however, "the detail was a desirable assignment for floor employees such as the [g]rievants." Award at 3.
Prior to June 1989, the Agency selected employees for the details on the basis of seniority. However, that month the Agency determined that "in the future all such details would be selected on the basis of competitive promotion procedures" because "the details gave [the] employees certain experience which could be advantageous in future promotional opportunities, i.e. that the jobs had 'known promotional opportunities . . . .'" Id. at 4. Under its regulations, the Agency is required to use competitive procedures when selecting employees for details to jobs with "known promotional opportunities[.]" Id.
After the Agency implemented its new policy, the grievants were selected for details to the GS-7 positions. However, competitive selection procedures were not used to select the grievants. The Agency's personnel department learned that the grievants "had not been selected in accordance with competitive promotion procedures, and that neither was 'within reach' on the competitive roster." Id. Because the grievants' "selections were contrary to the June, 1989 determination that these details were to be made competitively," the Agency decided to terminate the details and the grievants were returned to their former positions. Id. The Union filed a grievance concerning the Agency's termination of the details and the matter was submitted to arbitration.
The Arbitrator found that the parties' collective bargaining agreement "provides that the [Agency] may utilize competitive procedures or volunteers ranked on the basis of seniority when selecting employees for details." Id. at 6 (emphasis in original). The Arbitrator concluded that the Agency's "use of one of the two contractually-sanctioned methods for selecting employees to be detailed did not violate" the parties' agreement. Id.
The Arbitrator also determined that the grievants were not subjected to disparate treatment when they were returned to their former positions while other employees were allowed to remain in the detailed positions. The Arbitrator found that the "[g]rievants were not in the same exact status as the other employees who remained on detail. . . . [T]hose employees were selected prior to the June, 1989 decision to use competitive procedures; therefore, their initial selection was in accordance with the policy at that time." Id. at 6-7 (emphasis in original). The Arbitrator found that because the grievants were selected after the Agency implemented the new policy, "their selection was clearly contrary to the policy in existence at the time of their selection." Id. at 7. The Arbitrator concluded that "the decision to 'correct' the error made when [the g]rievants were selected contrary to the policy then in effect did not violate the Agreement or amount to a true instance of disparate treatment because their situations were different than the employees who remained on detail." Id.
Finally, the Arbitrator determined that the Agency's decision to change from a seniority-based selection system to a competitive procedure did not constitute a change in past practice. The Arbitrator stated that the evidence showed that "at one time (prior to June, 1989) the [Agency] used one contractually-approved means of selecting employees for details and that at another time (after June, 1989) it used the second contractually-approved method." Id. at 8. The Arbitrator found that "[t]he fact that the [Agency] used one of the permissible methods of selection for some period of time . . . does not establish a 'past practice' for the exclusive use of that method when the clear language of the Agreement authorizes either of two procedures." Id. at 8-9.
As his award, the Arbitrator held that the Agency's action did not violate the parties' collective bargaining agreement. Therefore, the Arbitrator denied the grievance.
III. Union's Exceptions
The Union contends that the award violates 5 U.S.C. § 7701(c)(2)(A) because the award sustains the Agency's decision to terminate the grievants' details.(*) The Union argues that under 5 U.S.C. § 7701(c)(2)(A), the Agency's decision may not be sustained if the employee shows harmful error in the application of the Agency procedures in arriving at its decision.
The Union contends that the award violates the parties' collective bargaining agreement because it sustains the Agency's misapplication of its regulations. The Union maintains, contrary to the Arbitrator's findings, that "management erred in their application or misapplication of the [Agency's] regulations" concerning details. Exceptions at 7. The Union argues that the Arbitrator "erred by allowing management to apply [Air Force Regulation] 40-335 in this case, when their application of the regulation is inconsistent with the instructions in Table I on how to apply Table II." Id. at 4. The Union asserts that "[t]he Arbitrator erred in his assumption that the [Agency] enjoys the latitude to override the regulation aforementioned, and apply competitive procedures anyway." Id.
The Union also contends that the award is deficient because the Arbitrator failed to "draw inference against management for failure to produce documents" which the Union maintains were necessary to substantiate the parties' claims in the arbitration proceeding. Id. at 3. The Union disputes certain testimony made by management officials and the grievants at the arbitration proceeding. The Union argues that the Arbitrator erred by accepting that testimony. Finally, the Union contends the award is deficient because the Arbitrator "acknowledges disparate treatment, however [the Arbitrator] fails to rectify the disparate treatment." Id.
IV. Analysis and Conclusions
A. The Harmful Error Rule Does Not Apply
The harmful error rule of 5 U.S.C. § 7701(c) applies to an arbitrator's resolution of a grievance over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. U.S. Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, Council of Prison Locals, Local 720, 38 FLRA 1438, 1441 (1991). The harmful error rule does not apply to other actions. Accordingly, as the award involves the cancellation of a detail, the Union's contention that the award violates 5 U.S.C. § 7701(c) provides no basis for finding the award deficient. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1269-70 (1990).
B. The Award Draws Its Essence from the Parties' Agreement
We construe the Union's exception that the Arbitrator erred when he found that the parties' collective bargaining agreement allows the Agency to select employees for the details using competitive procedures as a claim that the award is deficient because it fails to draw its essence from the agreement. In order for an award to be found deficient because it fails to draw its essence from an agreement, the party making the allegation must demonstrate that the award: