44:0806(67)AR - - AFGE Local 3615 and HHS, SSA, OHA - - 1992 FLRAdec AR - - v44 p806



[ v44 p806 ]
44:0806(67)AR
The decision of the Authority follows:


44 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 3615

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

0-AR-2119

DECISION

April 16, 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 Millard Cass 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 over the Agency's handling of the selection of candidates under a vacancy announcement. The grievance alleged, in part, that by not expanding the Best Qualified (BQ) list the Agency violated its Equal Employment Opportunity (EEO) affirmative action commitments. The Arbitrator found that although the Agency may have had a moral and ethical obligation to expand the BQ list, its failure to do so was not a violation of the parties' agreement or Federal law. Accordingly, the Arbitrator stated that he did not have the authority to order relief to correct the situation, but recommended that the Agency voluntarily take certain actions.

We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On July 2, 1990, the Agency announced 12 vacancies for the position of Paralegal Specialist, GS-950-13, under vacancy announcement OHA-90-73. On or about August 3, 1990, the Union requested that the BQ list for the vacancy announcement be expanded to include more white females and minorities. The Agency contended that the proper management official did not receive the Union's request at that time. On or about August 8, 1990, after the BQ list was sent to the selecting official, the Union filed a grievance charging that the Agency had "improperly violated the merit promotion plan, past practices, and Art. 26, by unilaterally placing two female bargaining unit employees on the Promotion Committee, without notice to the Union." Joint Exhibit No. 3.(1) The Union further alleged that the committee "reduced the BQ list, in violation of Article 26, sections 5 and 10." Id. In addition, the Union charged that the "Agency refused to expand the BQ list, and this denied merit promotion principles of fairness and equitable treatment to all applicants." Id. The Union also alleged violations of Articles 1, 3, section 2, and Article 18, section 1 of the parties' agreement.(2) In its grievance, the Union requested the following information from the Agency: (1) the BQ list by age and race; and (2) all memos prepared by Personnel and given to the promotion committee.

On or about November 2, 1990, the Agency denied the Union's grievance. The Agency asserted that Article 26 of the parties' agreement permitted the use of bargaining unit members on promotion committees, noting that section 9 of Article 26 provides that the selecting official will determine the composition of the committees. The Agency also noted that the BQ list contained more than the minimum number of candidates required by the parties' agreement, that the promotion committee had not reduced the BQ list, and that management had not acted improperly in refusing to expand the list.

In a memorandum dated November 5, 1990, the Union submitted the unresolved grievance to arbitration. Thereafter, the Agency announced the employees selected under vacancy announcement OHA-90-73.

On or about November 29, 1990, the Union requested from the Agency certain information regarding the selection action, which included materials and information relied on by the selecting official in evaluating and selecting employees from the BQ list for promotion. On or about December 18, 1990, the Union requested that the Agency provide it with certain other information, which included "the entire promotion package[,]" the Agency's National Promotion Plan and data concerning the race, date of birth and national origin of each of the applicants and selectees. Award at 37. On January 4, 1991, in response to the Union's November 29, 1990, information request, the Agency informed the Union that none of the data it requested was maintained and that the data was discarded "some time after the selections were made." Id. at 37.

The Agency subsequently provided the Union with the National Promotion Plan and, after some further correspondence between the parties, on February 14, 1991, it transmitted to the Union a copy of the promotion package for vacancy announcement OHA-90-73.

The parties were unable to agree on a joint submission of issues to the Arbitrator. The Union presented ten issues to be resolved, the first five of which concerned the Agency's failure to expand the BQ list for vacancy announcement OHA-90-73 as requested by the Union. The Union contended that the Arbitrator should draw an adverse inference against the Agency for not responding and acting upon the Union's request to expand the BQ list to improve the representation of females and minorities on the list. The other issues involved whether the Agency had discriminated against white females in its promotion and selection procedures; whether the Agency had discriminatorily excluded applicants over age 42; the effect of the selecting official's destruction and/or discarding of selection material/data; and whether the Agency's grievance decision was untimely.

As an alternative to the issues it had submitted at the hearing, in its brief to the Arbitrator the Union framed the following issues for possible consideration:

Was the entire selection process, from posting to selection, executed exactly according to established procedures? If not, what shall the remedy be?

Was the selection process entirely consistent with the SSA National Promotion Plan and strictly in compliance with the collective bargaining agreement between [the parties]? If not, what shall the remedy be?

Finally, were Affirmative Employment objectives properly considered during the selection process? If not, what shall the remedy be?

Id. at 4.

As relief, the Union requested that the four female applicants who were excluded from the BQ list be given bona fide priority consideration for a noncompetitive selection of a GS-13 position and that the Agency retain the three white females selected under OHA-90-73, but repost the remaining 9 vacancies from that posting to objectively meet its EEO commitments to affirmative action.

According to the Agency, there was only the following single issue:

The issue is whether management had a legal or contractual obligation under the collective bargaining agreement or the SSA National Promotion Plan to expand the [BQ] list for vacancy OHA-90-73 to include additional minorities and women.

Id.

Article 26, Merit Promotion, of the parties' agreement provides in relevant part:

Section 9--Promotion Committee

A. General. Where promotion committees are used, the selecting official will determine the composition of the committees. The results of promotion committee actions will be treated confidentially and in accordance with provisions of the Privacy Act.

Section 10--Establishing the Best-Qualified List

D. The parties may agree through mutual consent to extend the [BQ list] for good and sufficient reasons as shall promote the intent of this agreement and mission of the Agency.

Section 11--Selection

C. The selecting officer shall utilize the following procedures in selecting individuals for posted vacancies:

1. If the vacancy is one for which an underrepresentation exists and is a targeted occupation as identified in the Affirmative Action Plan, and the [BQ] list contains highly qualified candidates which would reduce the underrepresentation, then the selecting officer will give serious consideration to those individuals who would reduce the underrepresentation.

Id. at 13.

The Arbitrator did not expressly define the issues he was considering, but addressed several of the issues raised by the Union.

The Arbitrator found that "disturbing questions" were raised concerning the entire selection process. Id. at 40. The Arbitrator pointed to: (1) the failure of the selecting official and his deputy to retain for a reasonable period the selection data the Union requested on November 29, 1990; (2) management's failure to answer the Union's repeated requests for information "to which it is entitled;" and (3) the failure of the selecting official to testify. Id. The Arbitrator found that "[t]hese questions go to judgment exercised . . . but do not appear to demonstrate any direct violation of the [parties'] Agreement or Federal law." Id. The Arbitrator also concluded that "there is under-representation of minorities and white females in Grades GS/GM 13 and above." Id.

The Arbitrator concluded, however, that the promotion committee was properly selected in accordance with Article 26, section 9 of the parties' agreement and that the BQ list was properly established as provided in section 10 of Article 26. He further concluded that although the addition to the BQ list of the next four applicants in order of ranking scores would have given the selecting official a larger pool of under-represented minorities and females, there was no "legal or contractual obligation to expand the BQ list, and apparently the Agreement does not anticipate such action except by 'mutual consent' . . . ." Id. The Arbitrator went on to state that:

Nevertheless, there does appear to be a moral and ethical obligation to do so if that would assist the Agency in achieving its affirmative employment goals. Moreover, the Agreement appears to contemplate such action by the Agency (Article 18, Section 3) to achieve EEO objectives. It appears, therefore, that the selecting official should have expanded the BQ list, as the Union requested, even if he did not have to do so.

Id.

While the Arbitrator was critical of the Agency's actions, he concluded that he was without authority to undo the selections because it did not appear there were any direct violations of the parties' agreement or Federal law. In particular, he concluded that the agreement's "provision for extension of the BQ list 'through mutual consent' . . . appears to negate any authority in the Arbitrator to order that [the BQ list] be expanded or that the vacancies be reposted and refilled from another BQ list." Id. at 41. Instead, the Arbitrator "strongly recommended" a course of action by which the Agency should voluntarily correct the "improper, but not illegal" selection action. Id. The Arbitrator further suggested that if the Agency did not follow his recommendations, the Union should administratively appeal the Agency's actions to "progressively higher authority within the Agency." Id. at 41-42.

III. First and Second Exceptions

A. Positions of the Parties

The Union contends that the Arbitrator erred in concluding that he lacked authority to remedy the errors that he had found. The Union argues that the Arbitrator had the authority to grant the relief requested by the Union because the Arbitrator found that the BQ list should have been expanded by the selecting official and that such expansion would have met the parties' EEO objectives. The Union contends that the Arbitrator's award has no force and effect because it denies any appropriate relief for acts of "willful discrimination by the Agency . . . ." Exceptions at 10. The Union further contends that the award is beyond the scope of the Arbitrator's authority because the Arbitrator recommended that the Agency voluntarily take corrective action. The Union also argues that the Arbitrator has negated his authority by requiring the Union to appeal to higher Agency authority, which is not a party to the parties' agreement.

The Agency contends that the Arbitrator was empowered by the parties to resolve the issue or issues relative to whether management had a legal or contractual obligation to expand the BQ list to include more minorities. The Agency notes that the Arbitrator considered the evidence presented by the parties, reviewed the testimony given and found that the Agency did not violate either the parties' agreement or Federal law. The Agency contends that because there was no violation of law or of the parties' agreement, the Union's exceptions merely constitute disagreement with the Arbitrator's interpretation and application of the parties' agreement and that this exception does not provide a basis for finding the award deficient. Further, the Agency contends that the Authority has determined that asserted errors in the construction and application of a labor agreement may not be the proper basis for an exception, citing Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, GA. and American Federation of Government Employees, Local 987, 25 FLRA 969 (1987), in support of its position.

B. Analysis and Conclusions

We conclude that the Union has misconstrued the Arbitrator's finding. Although the Arbitrator concluded that the Agency may have had a moral obligation to expand the BQ list, he specifically found that the Agency's actions did not violate the parties' agreement or any Federal laws and that, for that reason, he could not provide the remedy that the Union requested. The Arbitrator was clearly within his authority in arriving at these findings. To the extent that the Arbitrator went beyond these findings to suggest a course of voluntary action by the Agency, or appeals by the Union to higher Agency authority, we find that the Arbitrator was within his authority to suggest alternative voluntary remedies. The Authority has recognized that arbitrators are granted great latitude and discretion in determining and fashioning remedies, including whether any remedy is warranted in a particular situation. For example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 462-64 (1991) (award not deficient because arbitrator found violation of merit system principles but determined that no remedy was warranted).

To the extent that the Union is contending that the Arbitrator's award is contrary to his obligation under the contract to order an effective remedy, we construe the Union's argument as an assertion that the award fails to draw its essence from the parties' agreement. 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 purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the interpretation of 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 Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator found, based on his interpretation of the parties' agreement, in particular Article 26, section 10, that the Agency did not violate the agreement when it refused to expand the BQ list. Accordingly, the Arbitrator found he could not order the Agency to expand the BQ list or order that the vacancies be reposted and refilled from another BQ list. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. Instead, the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, McClellan Air Force Base, California and International Federation of Professional and Technical Engineers, Local 220, 40 FLRA 968, 971-72 (1991) (McClellan AFB).

IV. Third and Fourth Exceptions

A. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator failed to find that the errors committed by the Agency violated law, rule or regulation. The Union notes that the parties' agreement incorporates all existing and future laws, rules, and regulations, including EEO laws and regulations.

Specifically, the Union argues that the award violates the Union's due process rights. The Union challenges the Arbitrator's conclusion that the errors committed by the Agency were judgmental and procedural rather than violations of Federal law. The Union explains that the Arbitrator should have drawn an adverse inference against the Agency for not providing information as requested, for destroying records while a grievance was pending, and for failing to have the selecting official testify at the hearing. The Union alleges that the Agency's unlawful conduct made it impossible for it to prove pretext as required by the Supreme Court decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Union contends that Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure provides for sanctions for the Agency's failure to comply with discovery requests, the destruction of relevant evidence and the refusal to have the selecting official testify. The Union asserts that because of these actions, the Agency has failed to produce evidence to rebut the Union's prima facie showing of discrimination and that, therefore, the Arbitrator should have found a violation of law based solely on the Union's case.

The Union lists several Supreme Court cases involving affirmative action, including City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (City of Richmond), which the Union contends sets forth the test or standard for determining what constitutes a legally permissible affirmative action program or plan. The Union contends that the Union "conclusively demonstrate[d] to the Arbitrator that discriminatory reasons were involved in the promotion and selection process of OHA 90-73 in violation of the Agreement, laws and regulations[.]" Exceptions at 19. The Union argues that, under applicable Supreme Court precedent, it demonstrated an adverse impact on protected groups and that it had also met the requirements for a finding of adverse impact in the promotion process as defined in the Equal Employment Opportunity Commission's (EEOC) Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607. The Union claims that the Arbitrator "capriciously disregarded this evidence[.]" Id. at 20.

The Agency argues that the Arbitrator did consider and apply the appropriate provisions of the governing rules and authorities, and therefore, that the Union's exceptions merely constitute disagreement with the Arbitrator's evaluation of the evidence and testimony and his interpretation and application of the parties' agreement. The Agency contends that the Union's exceptions are simply an attempt to relitigate the matter and have not demonstrated any violation of law, rule, regulation or the parties' agreement.

B. Analysis and Conclusions

We find that the Union has not established that the Arbitrator's award is contrary to law, rule, regulation, or the parties' agreement. Based on the record and specifically the language of Article 26, section 10 of the parties' agreement, which requires mutual consent by the parties' to expand a BQ list, the Arbitrator found that the Agency was not legally or contractually obligated to expand the BQ list. The Union has cited to Supreme Court affirmative action decisions, but has failed to explain how these cases would establish a conflict with EEO law, rule, or regulation in the circumstances of this case. None of the cases cited by the Union appears to stand for or support the Union's contention that the Agency must expand the BQ list under EEO law or that the Arbitrator was required to grant that relief. For example, the Court's decision in City of Richmond dealt with the standard of proof required to establish discrimination in order to legally establish a affirmative action plan or program to remedy such discrimination. Further, the Union has failed to show how the Arbitrator's award is contrary to the EEOC's Uniform Guidelines on Employee Selection Procedures or how those guidelines apply to the matter here. Accordingly, we find that the Union has not established that the Agency was otherwise legally or contractually obligated to expand the BQ list.

We construe the Union's arguments that the Arbitrator's award violated the Union's due process rights and that the Arbitrator should have drawn an adverse inference against the Agency for not providing information as requested, for destroying records while a grievance was pending, and for failing to have the selecting official testify at the hearing, as an assertion that the Arbitrator essentially denied it a fair hearing.

The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, 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, 105-07 (1991) (arbitrator's acknowledged failure to consider the union's position constituted failure to conduct a fair hearing). However, an arbitrator has considerable latitude in the conduct of a hearing. See, for example, Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898, 900 (1990) (union's claim that arbitrator did not allow all witnesses to testify and did not find the presence of union animus despite testimony to the contrary failed to establish basis for finding award deficient).

We find that the Union's assertion does not establish that it was denied a fair hearing. The Arbitrator considered the Union's case-in-chief and the evidence presented, but concluded that he did not have the authority to order the BQ list expanded because the Agency had not violated the parties' agreement or Federal law. In our view, the Union's assertion establishes only the Union's disagreement with: (1) the manner in which the Arbitrator conducted the hearing; and (2) the conclusions reached by the Arbitrator on the basis of the evidence and testimony presented to him. This disagreement does not establish that the award is 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, 1270 (1990).

Finally, there is no requirement that arbitration proceedings be governed by the Federal Rules of Civil Procedure, as the Union suggests. The Federal Rules were designed to govern the procedure in the United States district courts and do not purport to be applicable in administrative proceedings. See 2 James W. Moore et al., Moore's Federal Practice, 1.03[1] (2d ed. 1991).

V. Fifth Exception

A. Positions of the Parties

The Union argues that the award is deficient because it is based on nonfacts. The Union points to the Arbitrator's finding that the promotion committee was properly selected despite a contractual requirement that the selecting official appoint its members. The Union also characterizes as a nonfact the Arbitrator's finding that the selections could be justified. In the Union's view, the Arbitrator's conclusion is a gross misstatement of material facts and an abuse of discretion by the Arbitrator because there was no written and/or testimonial evidence from the selecting official. The Union asserts that the Arbitrator disregarded evidence submitted by the Union that established discrimination as well as the requirements of Article 18, section 3 of the parties' agreement that once adverse impact is shown, "'specific and measurable objectives shall be set to correct the conditions,' including '[m]odifying or substituting selection procedures to alleviate adverse impact.'" Exceptions at 24. Accordingly, the Union argues that the Arbitrator's holdings were "non-factual" and "clearly erroneous and, but for them a different result[] would have been reached necessitating full ordered relief as requested by the Union." Id. at 25.

The Agency contends that Union's exceptions constitute nothing more than disagreement with the Arbitrator's evaluation of evidence and testimony and his interpretation and application of the parties' agreement and are simply an attempt to relitigate the matter.

B. Analysis and Conclusions

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991).

The Union has not demonstrated that the Arbitrator's award is based on a central fact that is clearly erroneous. First, the Union has not shown that the selecting official could not delegate the function of appointing the promotion committee members. Article 26, section 9 of the parties' agreement provides that "the selecting official will determine the composition of the committees." Joint Exhibit No. 1 at 29 (emphasis added). It is silent as to whether the selecting official himself must appoint the committee members or whether he can delegate that responsibility. Moreover, even if the Arbitrator's finding of fact were erroneous, the Union has not established that it was a central fact underlying the award. Instead, we conclude that the Union's exception is an attempt to relitigate the merits of the grievance and does not demonstrate that the award is deficient. 41 FLRA at 539.

With regard to whether the Arbitrator's findings regarding the selection action were clearly erroneous, we note that the Arbitrator based his award on the record before him and specifically on the language of Article 26, section 10 of the parties' agreement, which requires mutual consent by the parties to expand a BQ list. Accordingly, the Arbitrator found that despite the fact that expanding the BQ list would assist the Agency in achieving its affirmative employment goals, it was not legally or contractually obligated to expand the BQ list. Although the Arbitrator recognized the requirements of Article 18 that are cited by the Union, he concluded that Article 26 negated his authority to grant the relief sought by the Union. In our view, the Union's exception does not establish that the award is based on nonfact. As the Authority has stated, disagreement with an arbitrator's interpretation of a contract is not a fact that can be challenged as a nonfact. Rather, the exception constitutes mere disagreement with the Arbitrator's findings and conclusions and his interpretation of the parties' agreement. See U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District and National Treasury Employees Union, Chapter 53, 41 FLRA 1295, 1300-01 (1991); and U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 459-60 (1990).

VI. Sixth Exception

A. Positions of the Parties

The Union claims that the Arbitrator erred when he failed to define the issues he was considering and that, therefore, the award is deficient because it fails to draw its essence from the agreement. The Union argues that the parties' agreement and Authority case law require an arbitrator to formulate the issues to be decided. The Union argues that the underlying grievance is wider than the one issue presented by the Agency and that scope of the grievance must be respected "because to do otherwise denies the Union due process rights when faced with violative conduct by the Agency in processing a grievance[.]" Exceptions at 27. The Union contends that without identification of issues the award is deficient because it cannot be determined whether the award draws its essence from the agreement. The Union argues that "[t]he most prevailing evidence of a manifest disregard for the Agreement and law is the Arbitrator's failure to order relief when significant violations of the Agreement and laws were evident in the record to support all ten (10) of the Union issues." Id. at 28.

The Agency notes that the parties were unable to agree on a joint submission of the issues for arbitration and each party submitted its understanding of the issues to be decided by the Arbitrator. The Agency contends that the Arbitrator did indicate what issue was before him. The Agency asserts that issue was management's refusal to expand the BQ list. The Agency contends that the Arbitrator may frame the issue to be heard, and need not, as the Union asserts, actually decide every matter a party determines to be appropriate.

B. Analysis and Conclusions

We reject the Union's contention that the Arbitrator erred when he failed expressly to define the issues he was considering. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. See, 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).

The Arbitrator addressed several procedural issues concerning the selection process that were raised by the Union. The Arbitrator found that: (1) the promotion committee was properly selected in accordance with the parties' agreement; (2) the committee properly established the BQ list in accordance with the agreement; and (3) there was no legal or contractual obligation for the Agency to expand the BQ list, although to do so would have assisted the Agency in achieving its affirmative employment goals. He also addressed the Union's concern regarding the Agency's failure to retain and provide requested information, and the failure of the selecting official to testify, concluding that the Agency's actions did not demonstrate any direct violation of the parties' agreement or Federal law. The Arbitrator's ultimate conclusion that the Agency did not violate the agreement or law and that his remedial authority was limited based on the language of Article 26, section 10 of the parties' agreement was directly responsive to the issue involved in the grievance. Consequently, the Union has not demonstrated that the Arbitrator failed to properly frame