45:0670(59)AR - - AFGE, LOCAL 2754 VS GSA, REGION SIX, KANSAS CITY, MISSOURI - - 1992 FLRAdec AR - - v45 p670

[ v45 p670 ]
The decision of the Authority follows:

45 FLRA No. 59

LOCAL 2754 (Union)





Before Chairman McKee and Members Talkin and Armendariz. 

I. Statement of the Case 

This case is before the Authority on an exception to an award of Arbitrator David A. Dilts 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 exception.

 The Arbitrator found that the Agency violated the parties' collective bargaining agreement in filling a vacancy. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception. 

II. Background and Arbitrator's Award 

A grievance was filed contesting the selection of a candidate to fill a WG 5823-11, Automotive Equipment Repair Inspector position. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as follows: 

Did the Agency violate the Collective Bargaining Agreement or applicable rules and regulations by not selecting the Grievant for an Automotive Equipment Repair Inspector position? If so, what shall be the remedy? 

Award at 1. 

The Arbitrator noted that the Agency did not dispute that procedural errors occurred in the selection process for the Automotive Equipment Repair Inspector position. According to the Arbitrator, although the Agency considered the procedural errors harmless, the errors harmed applicants for the position, including the grievant. The Arbitrator also found that the "evidence clearly demonstrate(d) a significant violation of (Article 18, Section 11 of the parties' collective bargaining agreement)." 1 Id. at 17. However, the Arbitrator concluded that "it (was) not clear that if the errors did (not) occur that (the grievant) ... would have been the successful candidate." Id. Accordingly, as relevant here, the Arbitrator awarded the grievant priority consideration for the next available vacancy at the same grade and in the same job series. 

III. Union's Exception 

The Union disputes only the Arbitrator's remedy. 

According to the Union, the Arbitrator misunderstood various facts involved in the grievance. For example, the Union asserts that "there were two (2) separate systems utilized in the preselection of (the selectee)." Exception at 1. In particular, the Union argues that, in filling the disputed position, the Agency used its own merit promotion plan (MPP) as well as an Office of Personnel Management (OPM) Certificate of Eligibles. In support of its assertion that the Arbitrator did not understand the difference between the MPP and the OPM certificate, the Union notes that the Arbitrator stated that "(t)he (g)rievant had been ranked as Best Qualified for the position by OPM." Id. The Union asserts that the grievant never applied for placement on an OPM certificate and that his name did not appear on such a certificate. 

The Union also asserts that the Arbitrator's remedy is inconsistent with Federal Personnel Manual (FPM) chapter 335, appendix A; chapter 315-13, subchapter 5; and chapter 532 subchapter 8. In addition, the Union contends that the Agency failed to provide the grievant "fair and equal treatment" as required by "(t)itle 5, the Federal Personnel Manual, the Agency ... (r)egulation(.)" Exception at 6. 

The Union requests that the Authority modify the Arbitrator's award to: (1) admonish the Agency and OPM to follow statutes, the collective bargaining agreement, and Agency and OPM rules and regulations; (2) remove the selectee from the position and replace him with the grievant; and (3) discipline the selecting official. 2. 

IV. Analysis and Conclusions 

We construe the Union's claim that the Arbitrator misunderstood various facts as a contention that the Arbitrator's award is based on nonfacts. We will find an award deficient under the Statute because it is based on a nonfact if the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. Department of Veterans Affairs, Waco, Texas and American Federation of Government Employees, Local 2571, 42 FLRA 1109, 1111 (1991). 

The Arbitrator concluded that, although the Agency violated the parties' collective bargaining agreement, there was no basis on which to conclude that, but for the Agency's violations, the grievant would have been selected for the Automotive Equipment Repair Inspector position. The Union disagrees. However, the Union has not demonstrated that any of the alleged erroneous facts found by the Arbitrator were central facts underlying the award such that, but for the al