45:1045(106)AR - - NFFE Local 1636 and DOD, NG Bureau, NM NG, Albuquerque, NM - - 1992 FLRAdec AR - - v45 p1045
[ v45 p1045 ]
The decision of the Authority follows:
45 FLRA No. 106
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 James B. Giles filed by the National Federation of Federal Employees on behalf of 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 exceptions.
The Union filed a grievance on behalf of an unsuccessful applicant for a position asserting that the Agency had improperly selected another employee for the position. The Arbitrator denied the grievance.
For the following reasons, we find that the exceptions fail to establish that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Agency posted a vacancy announcement and filled the position with an employee other than the grievant. The grievance alleged that the selected employee was pre-selected and was "unqualified" for the position. Award at 1. When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator framed the issues before him as follows:
(1) Was [the selected employee] "Best Qualified" for Job Announcement #91-1019? and (2) was the selection . . . a "Wrongful Pre-selection"?
The Arbitrator first addressed the Union's contention that the selected employee was not qualified for the vacant position. The Arbitrator observed that when the grievance was filed in this case, the grievant maintained that the selected employee was "unqualified for the position . . . ." Id. at 2. The Arbitrator also noted that, during the arbitration proceeding, the Union maintained that the selected employee was not the "[b]est [q]ualified" candidate or as qualified as the grievant for the vacant position. Id. at 3. The Arbitrator found, however, based on Agency testimony and documentary evidence, that "it became evident that [the selected employee] was unusually well qualified for the position to which he had been promoted." Id.
The Arbitrator then addressed the Union's argument regarding the wrongful pre-selection. The Arbitrator noted the Union's assertion that the selecting official "was well known for playing favorites rather than making personnel decisions on the basis of merit[,]" as well as the Union's criticism of the selecting official "for his practice of 'recruiting in advance' of an opening" or before a vacancy is announced. Id. at 3. The Arbitrator found, however, that the Agency's testimony "drew a convincing distinction" between the selecting official's action in making the disputed selection and an improper pre-selection. Id.
In sum, the Arbitrator denied the grievance on the ground that there was insufficient evidence in the record to support the Union's allegations. The Arbitrator concluded that the grievance "cannot be upheld in [the] absence of solid evidence to support the charges." Id. at 4.
III. Union's First Exception
The Union claims that the Arbitrator misstated the facts, set forth "a Union position that is contrary to the written issue of record, and ignore[d] the record." Exceptions at 1. More specifically, the Union argues that the Arbitrator made inconsistent statements with respect to the issues in dispute and misstated the Union's position on those issues. The Union asserts that the Arbitrator stated that the Union had taken the position that the selected employee was not qualified for the vacant position when, in fact, the Union's position was that the selected employee was not as qualified as the grievant and should not have been ranked and rated with employees who were highly qualified for the position. The Union states that its position "was that the selectee was basically qualified as far as the position was concerned but not qualified on the restrictions of the dual military position." Id. at 2.1/ The Union also argues that although the Arbitrator addressed the issue of pre-selection, he ignored other issues, including "basic qualification and procedural issues." Id. at 4.
First, we reject the Union's argument that the Arbitrator ignored certain issues. The issues before the Arbitrator were whether the selected employee was the best qualified candidate and whether that employee had been wrongfully pre-selected. The Arbitrator expressly addressed these issues. Consequently, the Union's argument provides no basis for finding the award deficient. See generally U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1049 (1991) (an arbitrator's failure to specify and discuss all allegations in a grievance does not provide a basis for finding an award deficient).
Next, we construe the Union's additional contentions that the Arbitrator misstated the issues and the Union's position with respect to those issues as an allegation that the award is based on nonfacts. For the following reasons, we conclude that the Union fails to establish that the award is deficient on this basis.
We will find an arbitration award deficient because it is based on a nonfact when the party making such a claim establishes that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435 (1991).
In identifying the issues in this case, the Arbitrator set forth both the grievant's position that the selected employee was not qualified, as well as the Union's position that the selected employee was not the best qualified candidate or as qualified as the grievant for the position. The Arbitrator's identification of the issues and restatement of the Union's position are, in fact, consistent with the issues set forth as well as the position the Union claims it maintained. Therefore, the Union has not established that the award is based on nonfacts. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's findings and his evaluation. Such disagreement provides no basis for finding an award deficient. See, for example, American Federation of Government Employees, Local 1923, AFL-CIO and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 911, 919 (1992).
IV. Union's Second and Third Exceptions
The Union contends that the award is contrary to rule and regulation and cites, specifically, Technician Personnel Regulation (TPR) 300, 335, the merit placement plan for National Guard technicians.2/ The Union states that that regulation sets forth basic requirements for selection, including the requirement that an individual who is selected for a position must be among the best qualified candidates. The Union states that it was uncontested at the arbitration hearing that the selected employee lacked certain experience. The Union further asserts that the selected employee was not assigned a compatible military position at the time specified on the vacancy announcement. Consequently, the Union argues that the selected employee "was not compatible and not fully qualified in accordance with the announcement and the regulations which back that announcement." Exceptions at 3.
The Union also claims that the award does not draw its essence from the parties' agreement. The Union states that Article 13, Section 13.1 of the parties' agreement requires the Agency to use the procedures set forth in TPR 335. 3/ The Union reiterates its position that the regulation requires selection from among the best qualified applicants and "does not state that management may select from any basically qualified employee." Id.
We reject the Union's argument that the award is contrary to rule and regulation. The Arbitrator specifically found that the selected employee was unusually well qualified for the position. He found that the Union had not met its burden of proof of establishing the charges, one of which was that the selected employee could not be rated as best qualified. In our view, the Union's exception constitutes nothing more than an attempt to relitigate this case before the Authority as well as disagreement with the Arbitrator's findings and his evaluation of the evidence and testimony. Consequently, the exception provides no basis for finding the award deficient. See for example, 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, 1248 (1991).
We also reject the Union's argument that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient because it fails to draw its essence from the parties' 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; (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, Utah and American Federation of Government Employees, Local 1592, 44 FLRA 1202, 1204 (1992). The Union has not established that the award is deficient under any of these tests. As we stated above, the Arbitrator found that the selected employee was, in fact, unusually well qualified for the position. The Union's exception constitutes mere disagreement with the Arbitrator's findings and conclusion and does not provide a basis for finding the award deficient. See, for example, id.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1/ Vacancy Announcement #T-91-1019 states in pertinent part:
MILITARY COMPATIBILITY: Individual selected must be assigned, prior to appointment, to compatible military Duty Military Occupational Specialty Code of Warrant Officer: 140BV. Enlisted: 27G.
2/ Requirement 3a of TPR 300, 335 requires management to:
Use the qualification requirements issued by the National Guard Bureau to evaluate applicants for excepted service positions.
Requirement 4a of TPR 300, 335 states:
Provide for management's right to select or not select from among a group of properly referred, best qualified candidates.
3/ Article 13, Section 13.1 of the parties' collect