44:0911(74)AR - - AFGE Local 1923 and HHS, HCFA, Baltimore, MD - - 1992 FLRAdec AR - - v44 p911



[ v44 p911 ]
44:0911(74)AR
The decision of the Authority follows:


44 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923, AFL-CIO

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCING ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

0-AR-2141

DECISION

April 23, 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 William P. Hobgood 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 Arbitrator denied a grievance alleging that the Agency violated Article 26, Section 13 of the parties' master agreement by not properly affording the grievant priority consideration for selection for promotion to the position of GS-13 program analyst.

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

The grievant is employed as a GS-12 program analyst in the Agency's Health Standards and Quality Bureau, which handles matters relating to the quality and appropriateness of medical care provided Medicare beneficiaries. Prior to the dispute in this case, the grievant successfully challenged her 1987 performance appraisal. As a result, the grievant was given five priority considerations for future vacancies.(1) The grievant exercised her right to priority consideration for a GS-13 program analyst position in the Agency's Bureau of Program Operations that was announced in June 1990. The Bureau of Program Operations handles matters relating to payment to Medicare contractors for services provided medicare beneficiaries. The vacancy announcement for the GS-13 program analyst position provided the following "Summary of Qualifications Requirements":

One year of experience which is directly related to the position to be filled and which has equipped the candidate with the particular knowledge, skills, and abilities to successfully perform the duties of the position.

Award at 7, 17.

The Agency decided the grievant was entitled to priority consideration for the position and that, under the parties' agreement, the grievant "must be given bona fide consideration by the selecting official before other candidates are considered through the promotion plan process." Id. at 8, quoting memorandum dated July 10, 1990. The selecting official delegated the responsibility of considering the grievant's application to an Agency official, who interviewed the grievant and reviewed her SF-171. The Agency official decided that the grievant should not be selected for the position because "she did not have the necessary 'knowledge of claims processing Medicare intermediaries and carriers that would be required for the position.'" Id. at 9. He stated his reasons for nonselection in writing in a document entitled "Rationale for Non-Selection." Id. at 10-11. On August 22, 1990, the grievant was notified that she was not selected for the position. A grievance was filed over the grievant's failure to be selected, alleging that "she was not given bona fide consideration for noncompetitive selection as required by Section 13 of Article 26 of the Master Agreement." Id. at 12.(2) The grievance was not resolved and was submitted to arbitration.

The Arbitrator framed the issue as follows:

Whether the Agency violated [Article] 26, Section 13 of the Master labor Agreement by not properly affording the Grievant, despite her priority consideration entitlement, bona fide consideration for the position of Program Analyst GS-345-13 in the Bureau of Program Operations? If so, what is the remedy?

Id. at 2.

According to the Arbitrator, the grievant testified that she had experience investigating Medicare fraud and abuse and that she had become "somewhat aware of [the] claims processing system." Id. at 4. Additionally, the Arbitrator cited the grievant's testimony that she "had no hands-on responsibilities" relating to the payment of Medicare claims. Id.

The Arbitrator also noted the Agency official's testimony that, based on his interview of the grievant and review of the grievant's SF 171, he had concluded that the grievant did not have the knowledge and ability to perform the duties of the position to be filled. In addition, the Agency official testified before the Arbitrator that prior to making his decision not to select the grievant for the position he had not considered other candidates for the position and had not received a list of the best qualified applicants

At the end of the arbitration hearing, the Arbitrator directed the parties to address in their post-hearing briefs issues related to the main issue, including: (1) the meaning of the term "priority consideration" in the parties' master agreement; (2) the standard the selecting official must use in deciding whether to select the employee who has exercised a priority consideration; and (3) whether the grievant met the necessary job requirements to be selected noncompetitively under the priority consideration provision of the parties' master agreement. The parties submitted post-hearing briefs on those issues and those submissions were considered by the Arbitrator.

The Arbitrator stated that there was no dispute that, under Article 26, Section 13 of the parties' master agreement, the grievant was entitled to priority consideration for the GS-13 program analyst position. The Arbitrator determined that the only issue was whether under that provision of the parties' master agreement the grievant in fact was given priority consideration by the Agency.

The Arbitrator found that under Article 26, Section 13 of the parties' master agreement, the selection of a candidate exercising priority consideration is not automatic. Rather, he stated that selection "presupposes qualifications for placement in the position, which, of course, is another matter." Id. at 16. In reaching this finding, the Arbitrator rejected the Union's contentions that the grievant met the Office of Personnel Management (OPM) X-118 qualification standards and that the Agency had qualified the grievant for the position to be filled merely by referring the grievant's application to the selecting official.

The Arbitrator concluded that, based on the record, the grievant was not qualified for selection to the position to be filled. The Arbitrator determined in this regard that "[w]hile it is not disputed that the Grievant met the generalized experience under [OPM] X-118 [qualification standards] the record does not support the Union's contention that the Grievant met the specialized experience." Id. at 16. In reaching this determination, the Arbitrator observed that the grievant's testimony and the record established that the grievant did not have experience directly related to the position and, therefore, did not meet the qualification requirements of the position.

The Arbitrator further concluded, crediting the testimony of the Agency official, that the Agency official based his decision not to select the grievant solely on the grievant's failure to meet the qualification requirements of the position to be filled. In reaching this conclusion, the Arbitrator rejected the Union's contention that in not selecting the grievant the Agency official improperly compared the grievant's qualifications with those of other potential candidates in violation of the parties' agreement and the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816 (1990). The Arbitrator found, based on the record, that the Agency official had no knowledge of potential candidates at the time of his decision. With regard to the Agency official's references to potential candidates in the Rationale for Non-Selection, the Arbitrator found that "the main thrust" of the Rationale for Non-Selection was that the grievant did not have the applicable experience and skills requirements for the position and that the references to potential candidates in that document "was merely a reflection of the next phase of the merit promotion process." Award at 15.

The Arbitrator concluded that the Agency "gave the Grievant bona fide consideration[.]" Id. at 18. Therefore, he found that the Agency did not violate the parties' master agreement by not selecting the grievant for promotion to the GS-13 program analyst position. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator exceeded his authority. The Union also contends that the award is based on nonfact and that it is contrary to Government-wide regulation.

More specifically, the Union argues that the Arbitrator exceeded his Authority by addressing an issue not before him when he addressed the matter of the grievant's qualifications for the position to be filled. The Union states that the Agency "never questioned" the "qualifications of the grievant" and that "the issue presented to the Arbitrator could not remotely be construed to include whether the grievant was qualified under the [OPM] X-118 qualifications standards." Exceptions at 4. The Union asserts that the Agency "found that the grievant was qualified" and "that the Arbitrator substituted his own erroneous opinion as to the qualifications of the grievant . . . ." Id. Furthermore, the Union states that the record shows that the parties had not disputed the Agency's "decision to certify the grievant as a qualified employee to the selecting official." Id.

With regard to the Union's argument that the award is based on a nonfact, the Union states that the central fact underlying the award to deny the grievance was the Arbitrator's finding that "[w]hile it is not disputed that the Grievant met the generalized experience under [OPM] X-118 [qualification standards], the record does not support the Union's contention that the Grievant met the specialized experience[.]" Exceptions at 2, quoting Award at 16. In this connection, the Union asserts that "[t]here is nothing in the record to establish that the grievant's qualifications were ever called into question, which would then provide an opportunity for the Arbitrator to make a finding concerning the grievant's qualifications." Exceptions at 3. The Union further argues that, in any event, testimony adduced at the arbitration hearing establishes that the grievant met both the general and specialized requirements set forth in the OPM X-118 qualification standards for the position to be filled.

Finally, the Union argues that the award violates the OPM regulations contained in 5 C.F.R. § 335.102 and 103 and applicable provisions of the Federal Personnel Manual (FPM). In support of this position, the Union maintains that the Arbitrator deprived the grievant of priority consideration for the position to be filled by addressing the grievant's qualifications for the position after the Agency had already qualified the grievant for the position by referring her application to the selecting official.

B. The Agency

The Agency contends that the Union has not demonstrated that the Arbitrator exceeded his authority or that the award is based on nonfact.

More specifically, the Agency argues that the award does not relate to matters that were not submitted to the Arbitrator. The Agency asserts that the "primary issues" raised before the Arbitrator concerned: "(1) whether or not the grievant received bona fide non-competitive consideration under the priority consideration program and (2) did she possess the necessary job qualifications to adequately perform the duties and responsibilities at the GS-13 grade level." Opposition at 3-4. The Agency notes that the Arbitrator directed the parties to address in their post-hearings briefs, among other matters, "the standards that are to be applied in giving priority considerations and whether the Grievant possessed the necessary job requirements to be selected non-competitively under the priority consideration provision of the [parties'] Master Agreement." Id. at 4.

The Agency also argues that the award is not based on nonfact. The Agency states that the Arbitrator "concluded, on the basis of his interpretation of the parties' agreement as well as the evidence presented at the arbitration hearing . . . that the grievant did not possess the specialized or required job knowledge, skills and abilities identified in the vacancy announcement." Id. at 6. The Agency asserts, therefore, that the Union has failed to establish that the central fact underlying the award is clearly erroneous and constitutes a gross mistake of fact, but for which a different result would have been reached.

The Agency notes the Union's assertions that the Agency found the grievant qualified to be considered for selection for the position to be filled. In the Agency's view, the Union misconstrues a finding that the grievant met the general qualifications for the occupational series as equivalent to finding the grievant qualified for selection for a specialized position within that occupational series. The Agency observes in this regard that the Arbitrator found that the consideration of a candidate exercising priority consideration is not automatic placement in the position. The Agency further observes that the Arbitrator found, based on the grievant's testimony, that the grievant did not have the required experience that is directly related to the position to be filled and, therefore, that the grievant did not meet the qualification requirements of the position. The Agency asserts that there is no merit to the argument that the Arbitrator could have reached a different result if he had not raised an issue of the grievant's qualifications. Rather, the Agency contends that "[a] primary issue in this case was whether the grievant possessed sufficient qualifications to successfully perform the higher graded job." Id. at 11.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration. International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012, 1023 (1992) (General Services Bureau). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues to be resolved in a grievance. For example, General Services Bureau, 43 FLRA at 1023-24; U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448 (1991) (Federal Aviation Administration).

The Union fails to establish that the Arbitrator exceeded his authority by addressing an issue not before him. The issue before the Arbitrator was whether the Agency had violated Article 26, Section 13 of the parties' master agreement by not affording the grievant bona fide priority consideration for selection. The Arbitrator concluded that under Article 26, Section 13 the selection of a candidate exercising the right to priority consideration is not automatic, but, rather, that it presupposes that the candidate is qualified for the position. In reaching this finding, the Arbitrator rejected the Union's contention that the Agency had qualified the grievant for selection to the position to be filled merely by referring the grievant's application to the selecting official. The Arbitrator determined, therefore, on the basis of the parties' agreement and the record before him, that the issue included whether the grievant was qualified for the position to be filled. Moreover, at the Arbitrator's request, the parties addressed in their post-hearing briefs the issue of whether the grievant met the necessary job requirements to be selected noncompetitively.

The Arbitrator's determination that the issue of the grievant's qualifications for the position was properly before him, in the absence of a stipulation by the parties, is entitled to great deference. See General Services Bureau 43 FLRA at 1025; Federal Aviation Administration, 41 FLRA at 1448. Here, the award is directly responsive to the issue as the Arbitrator framed it. U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 97 (1991). Therefore, the Union's exception that the Arbitrator exceeded his authority by addressing an issue not before him provides no basis for finding the award deficient and will be denied. The Union is only disagreeing with the Arbitrator's interpretation and application of the collective bargaining agreement and with his findings. American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990).

B. The Award Is Not Based on a Nonfact

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. For example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 106 (1992).

The Union has not demonstrated that the Arbitrator's determination that the grievant did not meet the specialized experience necessary for selection to a GS-13 program analyst position is clearly erroneous. The Arbitrator based this determination on the entire record before him, including the testimony of the Agency official and the grievant, as well as the parties' post-hearing briefs. The Union's claim that the Arbitrator's finding is erroneous constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his findings based thereon. Such disagreement provides no basis for finding an award deficient. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 343 (1991) and cases cited therein.

C. The Award is Not Contrary to Government-wide Regulation

The Union has not demonstrated that the award is deficient because it is contrary to Government-wide regulation.

The Union contends that the award violates 5 C.F.R. § 335.102 and 103 and the applicable provisions of the FPM because it deprived the grievant of priority consideration for the position to be filled by addressing the grievant's qualifications for the position after the Agency had already qualified the grievant for the position when it referred her application to the selecting official. Although 5 C.F.R. § 335.102 and 103 address an agency's authority to promote employees and agency promotion programs, respectively, those regulatory provisions contain no mention of priority consideration determinations. Accordingly, the cited regulations provide no basis for finding the award contrary to Government-wide regulation. Furthermore, the Union fails to specify, and we are not otherwise aware of, any provision of the FPM regarding priority consideration that the award violated. We note that FPM Chapter 335, Appendix A-4c states that, in certain circumstances, nonselected employees may be given priority consideration as a corrective action. However, that provision does not define "priority consideration" and provides no basis for finding the award deficient as contrary to law. American Federation of Government Employees, Local 476 and U.S. Department of Housing and Urban Development, Washington, D.C., 44 FLRA No. 48, slip op. at 6. n.2. (1992) (U.S. Department of Housing and Urban Development).

In this case, the Arbitrator concluded that the Agency "gave the grievant bona fide consideration" and found, therefore, that the Agency did not violate the parties' master agreement by not selecting the grievant for promotion. Arbitrator's Award at 8. We conclude that the Union's contention that the award is contrary to the Government-wide regulations concerning priority consideration constitutes mere disagreement with the Arbitrator's interpretation and application of the priority consideration provisions of the parties' master agreement and his reasoning and conclusions. Such disagreement provides no basis for finding the award deficient. See U.S. Department of Housing and Urban Development, 44 FLRA No. 48, slip op. at 7-8.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 26, Section 13(A) of the parties' master labor agreement defines priority consideration as:

the bona fide consideration for non-competitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation. Employees will receive one (1) priority consideration for each instance of improper consideration.

Article 26, Section 13 of the parties' agreement also states, in relevant part:

B. Processing - The procedures for processing priority consideration shall be:

. . . .

2. Priority consideration is to be exercised by the selecting officer at the option of the employee for an appropriate vacancy(s). An appropriate vacancy is one for which the employee is interested, is eligible, and which leads to the same grade level of the vacancy for which proper consideration was not given.

3. Prior to issuance of the best qualified list, the name(s) of the employee(s) requesting to exercise priority consideration will be referred to the