43:1355(108)AR - - Treasury, Customs Service, Savannah, GA and NTEU - - 1992 FLRAdec AR - - v43 p1355
[ v43 p1355 ]
The decision of the Authority follows:
43 FLRA No. 108
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
February 5, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator J. Earl Williams 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 exceptions.
A grievance was filed alleging that the Agency improperly rated and ranked an employee for a promotion. The Arbitrator sustained the grievance and awarded the employee priority consideration for the next available vacancy. For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant was an unsuccessful applicant for one of five vacancies for a GS-11 Senior Inspector position. The Agency's evaluation board gave the grievant the lowest score of the nine best qualified candidates. The grievant filed a grievance alleging that he was improperly rated and ranked in three evaluation factors and, when the grievance was not resolved, it was submitted to arbitration on the following stipulated issues:
Was the grievant properly ranked and rated by the Evaluation Board pursuant to the agreement?
If not, is he entitled to priority consideration for the next available vacancy?
Award at 2.
The Arbitrator noted that the parties' collective bargaining agreement provides that candidates' applications are to be evaluated against crediting plans. Based on his examination of the appropriate plan, the Arbitrator agreed with the evaluation board's conclusions as to the grievant's rating in two factors. In the remaining disputed factor, however, the Arbitrator concluded that the grievant should have been rated higher. This change increased the grievant's total score from 18.5 to 19.5.
The Arbitrator noted that, under the parties' agreement, the increase in the grievant's score entitled him "to receive priority consideration for the next appropriate vacancy for which he is qualified, if his rank order on the best qualified list is improved . . . ." Id. at 23 (emphasis added). The increase in the grievant's score, according to the Arbitrator, moved the grievant from last place on the best qualified list into a three-way tie for seventh place. Based on this change, the Arbitrator awarded the grievant priority consideration for the next available vacancy.
III. Positions of the Parties
A. Agency's Exception
The Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator raised the grievant's score in written communication "despite the overwhelming weight of the evidence showing proper rating and ranking by the [e]valuation [b]oard." Exception at 3. In addition, the Agency alleges that the award is contrary to Article 17, Section 8.A. of the agreement, which provides that "[t]he assessment of each candidate will be based solely on the documentation" before the evaluation board. Id. at 6. The Agency asserts that the award requires an evaluation board to "read more into the applications than is set forth." Id. at 11. The Agency also alleges that the award is contrary to the agreement because the Arbitrator, in reviewing the grievant's rating on one factor, "usurped" the Agency's responsibility to determine evaluation criteria. Id. at 14.
Finally, the Agency alleges that the award is contrary to the collective bargaining agreement because it awards priority consideration to the grievant where the grievant's rank order on the best qualified list did not improve. The Agency argues that the grievant moved from "being in last place to being tied for last place" and, consequently, did not improve his rank order. Id. at 16.
B. Union's Opposition
The Union asserts that "the Agency's entire argument is nothing more than a disagreement" with the Arbitrator's interpretation of the collective bargaining agreement. Opposition at 5 n.3.
IV. Analysis and Conclusions
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base and American Federation of Government Employees, Local 1592, 40 FLRA 1243, 1246-47 (1991).
The Agency has not demonstrated that the award is deficient under any of these tests. We reject, in this regard, the Agency's argument that the Arbitrator improperly established evaluation criteria. In our view, the Arb