44:0566(48)AR - - AFGE Local 476 and HUD, Washington, DC - - 1992 FLRAdec AR - - v44 p566



[ v44 p566 ]
44:0566(48)AR
The decision of the Authority follows:


44 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476

(Union)

and

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

WASHINGTON, D.C.

(Agency)

0-AR-2179

DECISION

March 26, 1992

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 Jerome H. Ross 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 failed to give the grievant bona fide priority consideration for a vacant position. The Arbitrator rejected this allegation. However, the Arbitrator found that the Agency did not comply with the provision in the parties' collective bargaining agreement requiring the Agency to timely notify the grievant of the reasons for her nonselection. As a remedy, the Arbitrator ordered the Agency to give the grievant priority consideration for a future vacancy.

The Union contends that the award should be set aside because the Arbitrator "incorrectly applied the law with respect to 'bona fide priority consideration' to the facts of this case." Exceptions at 1-2. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

To settle the grievance of an employee over her nonselection for promotion to a GS-14 position, the Agency agreed in March 1990 to give the employee priority consideration for any future vacancies at the grade 14 level for which she was qualified. In June 1990, the employee responded to a vacancy announcement for a GS-14 position and advised the Agency that she wanted to receive priority consideration for that vacancy.

On June 12, 1990, an Agency personnel management specialist forwarded the grievant's Standard Form 171 and performance appraisal for priority consideration to the administrative officer of the office in which the GS-14 vacancy was located. On June 15, 1990, the selecting official interviewed the employee "in accordance with [the personnel management specialist's] direction that she must be interviewed before a selection roster could be submitted to the selection official." Award at 3. On June 18, 1990, the selecting official completed the priority consideration form, indicating that he did not select the employee for the position and noting that he "[w]ould like to see additional applicant[s]." Id. Also, on June 18, 1990, the selecting official told the employee "that although she had not been nonselected, he wanted to see who else was on the selection roster because he thought he should see all the candidates." Id.

On June 18, 1990, the panel that was "established to competitively rank the candidates under the merit selection process convened and completed the rankings[.]" Id. According to the testimony of the personnel management specialist, the selection certificate was referred to the selecting official "after [the selecting official] had nonselected the grievant." Id. On or about June 22, 1990, the grievant sent the selecting official a note requesting the reasons for her nonselection. On June 22, 1990, the employee was advised verbally by the personnel management specialist "that she had been nonselected because [the selecting official] had stated that he believed other applicants were better qualified for the position." Id. at 3-4. In response to the grievant's request for a written explanation of the reasons for her nonselection, the personnel management specialist advised her by letter dated July 3, 1990, that "'[a]lthough [the selecting official] believes you are basically qualified, he felt there would be better qualified candidates available for this particular job. He commented that i[t] is imperative that he find and select the best qualified candidate available.'" Id. at 4.

The Union filed a grievance alleging that the Agency failed to give the grievant "bona fide priority consideration" and requesting "that the grievant be awarded a retroactive promotion to the position of Housing Management Specialist, GS-14." Id. at 1. On August 14, 1990, the selecting official stated in the Step 1 response to the grievance that although the grievant "'was found basically qualified,'" he had not selected her because he "'considered it essential to find and select the best qualified candidate.'" Id. at 4. On September 12, 1990, the Step 2 official in the grievance procedure reiterated the Step 1 official's statement and advised the grievant that the selecting official "determined that you did not have the attributes he considered essential for a position of this nature.'" Id. On November 21, 1990, the Step 3 official in the grievance procedure advised the grievant that she had not been selected because, although she was qualified for the position, a candidate that exhibited a higher degree of the desired qualifications had been selected. The grievance was not resolved and was submitted to arbitration.

The Union contended before the Arbitrator that the grievant "did not receive bona fide priority consideration" and that the advertised position "was created and posted for the selectee[.]" Id. at 5. The Union further argued that the selecting official's "stated reason for the nonselection--that he wanted to see the entire field of candidates before making a selection--violates the essence of the priority consideration remedy by comparing the employee with the other candidates and thus requiring the employee to compete with the candidates on the selection roster." Id. Moreover, the Union asserted that the grievant was not given any reasons for nonselection based on any lack of qualifications or attributes until the final step of the grievance procedure and that the Agency had not shown that the grievant lacked the required qualifications. Finally, the Union maintained that "the priority consideration for the grievant was simply a pro forma exercise which failed to meet the contractual requirement to provide a bona fide opportunity for employees." Id. at 6.

The Agency argued before the Arbitrator that it had complied with the priority consideration requirements of Section 13.12, Priority Consideration, of the parties' collective bargaining agreement.(1) The Agency asserted that the grievant's name was submitted to the selecting official for review, the grievant was interviewed, and the grievant was provided with the reasons for her nonselection. Moreover, the Agency contended that the selecting official "did not know the composition of the merit staffing certificate for the position when he interviewed the grievant or when he nonselected her." Id. The Agency also maintained that there was no requirement that the grievant be selected and that any such requirement would violate management's right to select employees. Finally, the Agency contended that there was no evidence to support the charge of preselection.

The Arbitrator rejected the Union's contention that there was preselection and that the vacancy had been designed for the person selected. The Arbitrator stated that "the evidence in this record does not support a finding that [the selecting official] had committed to select [the person selected] for the position prior to interviewing the grievant or prior to reviewing the selection roster." Id. at 8-9. The Arbitrator noted that the selecting official had interviewed the grievant as required under Section 13.12(4)(b) of the parties' agreement. He also noted that although it appeared that the selecting official "did not want to face up to his responsibilities as a manager when he initially misled the grievant concerning his intention to nonselect her, his conduct in this regard does not constitute a contract violation." Id. at 9-10. The Arbitrator concluded that the Agency did not violate the priority consideration requirements of the parties' agreement because "[t]here is no evidence showing that [the selecting official] did not give bona fide consideration to the grievant." Id. at 9.

However, the Arbitrator found that the Agency violated Section 13.12(4)(d) of the agreement because the selecting official failed to sufficiently inform the grievant of the reasons for her nonselection other than to say "that he felt that there could be better candidates available." Id. at 10. The Arbitrator stated that the grievant was not informed of the substantive reasons for nonselection until "the Step (3) [o]fficial's response [to the grievance] some five months later" and that that "response did not serve to remedy the selecting official's error." Id.

The Arbitrator concluded that the grievant had "overestimated the requirements of the priority consideration process[]" and noted that "the process requires priority consideration, not priority selection." Id. The Arbitrator held that, because the Agency violated Section 13.12(4)(d) of the agreement by failing to timely advise the grievant of the reasons for her nonselection, the grievant was entitled to "another opportunity for priority consideration." Id. at 11. He made the following award:

The grievance is sustained to the extent that [the grievant] shall receive one priority consideration eligibility with the usual and customary obligations and benefits pertaining thereto.

Id.

III. Union's Exceptions

The Union asserts that the Arbitrator "incorrectly applied the law on priority consideration to the facts in this case when he held that the agency provided the [grievant] with bona fide priority consideration." Exceptions at 5. The Union maintains that the Arbitrator erroneously accepted the statement of the personnel management specialist that "it was permissible for a selecting official to nonselect priority consideration candidates because the selecting official desires to see the merit selection certificate (i.e., other candidates)[,]" and the testimony of the personnel specialist that "granting an employee priority consideration is merely giving them an interview 'ahead of the pack.'" Id. at 6.

The Union contends that the grievant did not receive appropriate priority consideration because: (1) the grievant did not receive consideration by the selecting official before the selecting official considered other candidates; and (2) the grievant was actually compared to the other candidates. The Union asserts that decisions of the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC), as well as an arbitration award involving another Federal agency, support the concept "that for priority consideration to qualify as bona fide, the priority consideration candidate cannot be compared with other potential candidates." Id. at 9 (emphasis in original). The Union argues that, in this case, the selecting official did not reject the grievant before considering the other applicants and that the Arbitrator incorrectly found that the grievant was properly considered.

The Union asserts that the record supports the finding that the selecting official rejected the grievant because he wanted to see the other candidates and not because he found that the grievant was unqualified for the position. The Union contends that the Arbitrator misapplied the law on priority consideration to the facts of this case and asks that the award be reversed.

IV. Analysis and Conclusions

We conclude that the Union has failed to show that the Arbitrator's award is contrary to law. The Union contends that the Arbitrator's award is contrary to law because the Arbitrator erroneously found that the grievant received the priority consideration to which she was entitled under the parties' collective bargaining agreement. However, the Union fails to specify any provision of law regarding priority consideration that the Arbitrator's award violated and, therefore, fails to establish that the award is deficient on that basis. See U.S. Department of the Treasury, U.S. Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 489 (1991) (exception that award is contrary to law provides no basis for finding award deficient when no provision of law is cited).(2)

The Union relies on decisions issued by MSPB and EEOC and on an award by an arbitrator in a case involving another Federal agency. However, we conclude that those decisions do not demonstrate that the Arbitrator's award in this case is deficient. The MSPB decision concerned the enforcement of a settlement agreement between a removed employee and an agency that required the agency to give the employee "strong consideration" when he applied for positions in the agency for which he was qualified. Myers v. Department of Agriculture, 29 MSPR 395, 396 (1985). After the employee had unsuccessfully sought "strong consideration" for at least 10 positions, the MSPB granted enforcement of the settlement agreement on the ground that the agency had not given the employee "strong consideration" as that term was intended in the settlement agreement. Id. The EEOC decision concerned an employee's entitlement to priority consideration under a settlement agreement resolving an age and physical handicap discrimination complaint. Wilson v. Thomas, EEOC Appeal No. 01881684 (October 13, 1989). Neither of those decisions prescribes a definition of priority consideration that the Arbitrator was required to apply in his award, which he based on the meaning of priority consideration in the parties' collective bargaining agreement.

We find nothing in those cases cited by the Union that governs the interpretation and application of the collective bargaining provisions on priority consideration in this case or that renders the Arbitrator's award deficient as contrary to law. The Union has not established that priority consideration "is a term of art" with a uniform meaning throughout the Government. Exceptions at 7. In the absence of a standard controlling definition in law, the term "priority consideration" as used in the parties' collective bargaining agreement is subject to arbitral interpretation.

Further, we reject the Union's reliance on the award of another arbitrator as a basis for finding this award deficient. As the Union concedes, the Authority does not find arbitration awards deficient solely on the basis that they conflict with previous arbitration awards. See U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 41 FLRA 303, 305 (1991). We are not persuaded by the Union's arguments that an exception should be made in this case because the arbitration award cited by the Union also concerns priority consideration. The Arbitrator in the present case was interpreting and applying the term "priority consideration" contained in the parties' collective bargaining agreement and the fact that he may have interpreted the term in a different manner from another arbitrator in another award does not render his award deficient. Id.

We find that the Union's argument that the award is contrary to the law concerning priority consideration constitutes mere disagreement with the Arbitrator's interpretation and application of the priority consideration provisions of the parties' collective bargaining agreement and his reasoning and conclusions. Such disagreement provides no basis for finding the award deficient. See U.S. Department of the Treasury, United States Customs Service, Region IV, Miami District and National Treasury Employees Union Chapter 137, 41 FLRA 394, 399 (1991).

The Arbitrator applied the provisions of the parties' collective bargaining agreement that set forth the way in which priority consideration will be administered within the Agency. To the extent that the Union's exceptions can be construed as an allegation that the award fails to draw its essence from the agreement, we find that the Union's exceptions fail to establish that the award is deficient.

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 Treasury, United States Customs Service, Savannah, Georgia and National Treasury Employees Union, 43 FLRA 1355, 1357 (1992). The Union has not demonstrated that the award is deficient under any of these tests. The Union has provided no basis on which to conclude that the Arbitrator's interpretation of the parties' agreement is implausible, irrational, or unconnected to the wording of the agreement. Consequently, the Union has not established that the award fails to draw its essence from the collective bargaining agreement.

V. Decision

The Union's exception are denied.

APPENDIX

Section 13.12 -- Priority Consideration.

(1) Definition. Priority consideration is special placement consideration for an appropriate vacancy given to an employee who did not receive proper consideration in a prior competitive placement case due to a documented procedural, regulatory, or program violation.

. . . .

(4) Processing. The procedure for processing priority consideration(s) shall be:

(a) Before referring a Competitive Placement Certificate to the selecting official, Management shall provide the selecting official with a list of employees interested and eligible for priority consideration.

(b) The selecting official shall interview and give bona fide consideration to those employees on the priority consideration list.

(c) Management shall notify the employee of nonselection under priority consideration. Nonselection under this Section shall not preclude an employee from subsequent selection from a Competitive Placement Certificate for the same position provided that the employee has submitted all the required application documents, supplemental statements and performance appraisals.

(d) Upon request, the employee shall be provided the reasons for nonselection.




FOOTNOTES:
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1. Relevant portion