46:0555(53)AR - - Army Communications- Electronics Command, Center for Command, Control and Communications Systems, Fort Monmouth, NJ and NFFE Local 476 - - 1992 FLRAdec AR - - v46 p555
[ v46 p555 ]
The decision of the Authority follows:
46 FLRA No. 53
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY COMMUNICATIONS-ELECTRONICS COMMAND
CENTER FOR COMMAND, CONTROL AND COMMUNICATIONS SYSTEMS
FORT MONMOUTH, NEW JERSEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
November 19, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Ruth Russell Gray 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 exception.
The Arbitrator found that a disputed selection action was in accordance with merit promotion regulations, and she denied the grievance.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
In 1990, a job notice was posted announcing a number of engineering positions open for recruitment. The grievant applied for the announced positions. During the selection process, the grievant complained to the Agency that certain technical questions asked during the interview process improperly favored one of the other applicants. As a result of the grievant's complaint, the questions were eliminated as part of the selection process. When the allegedly favored applicant was among the employees selected and the grievant was not, the grievant filed a grievance challenging the selection process. Thereafter, in another selection action, the grievant was selected for promotion. Nevertheless, the grievance was pursued, seeking as general relief the rerun of the disputed selection action. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated the issues as follows:
Is the within matter arbitrable under the Collective Bargaining Agreement?
Was the selection process . . . made in accordance with merit promotion regulations? If not, what should be the remedy?
Award at 1. The Arbitrator ruled that the grievance was arbitrable even though the grievant no longer sought personal relief.
On the merits, the Arbitrator ruled that "[t]he selection process . . . was made in accordance with merit promotion regulations." Id. at 14. She found that the Union failed to prove that the selected employee was improperly rated and ranked. In her view, "the rating and ranking process was handled competently and correctly." Id. at 11. The Arbitrator also rejected assertions that management showed favoritism towards the selected employee by ignoring complaints against him by coworkers. The Arbitrator found that the complaints were insufficient or were dealt with by management. The Arbitrator further rejected, as "de minimis," criticism of typographical and grammatical errors on the selected employee's application. Id. at 13. In addition, the Arbitrator found that the Union failed to establish bias on the part of the selection panel observer. The Arbitrator further found that the elimination of the disputed questions from the interview evaluations "partially cured" "the inequity . . . ." Id. Although the Arbitrator believed the grievant had established "some form of bias" in favor of the selected employee, the Arbitrator explained that the bias "was similar to the kind any qualified supervisor might feel for an employee working under him." Id. at 12. Furthermore, the Arbitrator refused to determine whether such bias rose to the level of preselection. She found that the matter had become moot as a result of the grievant's selection, "and the parties are where they should be, in the status quo." Id. Accordingly, she denied the grievance.
III. Positions of the Parties
A. The Union
The Union contends that the award is contrary to agency regulation. The Union maintains that under the Authority's decision in U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990), the agency regulation setting forth the rules for merit promotion and internal placement governs, and the award conflicts with the regulation.
The Union alleges that the Agency used selective factors designed to narrow the field to the selected employee in violation of an agency regulation, CECOM (Communications-Electronics Command) Regulation No. 690-335, entitled Merit Promotion and Internal Placement.(1) The Union claims that the Arbitrator's findings that some form of bias existed in favor of the selected employee and that the inequity in the interview process was only partially cured establish the use of such prohibited selection factors. The Union further alleges that all candidates were not objectively considered, as required by CECOM 690-335,(2) and that management failed to make every effort to resolve the complaint, as required by CECOM 690-335.(3)
B. The Agency
The Agency contends that the Union's exception provides no basis for finding the award deficient. The Agency claims that the Union is merely disagreeing with the Arbitrator's findings of fact and is attempting to relitigate this case before the Authority.
IV. Analysis and Conclusions
We conclude that the Union's exception provides no basis for finding that the award is deficient. Accepting that CECOM 690-335 governs merit promotion within the Agency,(4) we find that the Union fails to establish that the award is contrary to CECOM 690-335.
The Arbitrator specifically ruled that "[t]he selection process . . . was made in accordance with merit promotion regulations." Award at 14. The Union's exception fails to establish otherwise. In particular, the Union's reliance on the Arbitrator's findings that "some form of bias did exist[,]" id. at 12, for the selected employee and that the inequity of the interview process was only partially cured provides no basis for finding the award deficient.
The Arbitrator explained that the bias that existed was similar to the kind any supervisor would feel on behalf of a subordinate. Moreover, she refused to address whether the bias rose to the level of preselection because she viewed the matter to be moot. We reject the Union's claim that this finding establishes preselection in violation of CECOM 690-335. Similarly, we reject the Union's claim that the Arbitrator's finding of only a partial cure of the interview inequity establishes use of a selective factor designed to narrow the field to the selected employee in violation of CECOM 690-335. In view of the Arbitrator's finding that the "rating and ranking process was handled competently and correctly[,]" id. at 11, we are not persuaded that any breach of the Agency's regulations was not sufficiently cured for purposes of CECOM 690-335.
In our view, the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and her evaluation of the evidence and testimony and an attempt to relitigate this matter before the Authority. As such, the exception provides no basis for finding the award deficient. See National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, New Mexico National Guard, Albuquerque, New Mexico, 45 FLRA 1045, 1049 (1992). Accordingly, we will deny the exception.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
1. CECOM 690-335(4)(e) provides:
Preselection of specific persons or the use of selective factors designed to narrow the field of potential candidates to a specific person will not be permitted.
2. CECOM 690-335(5)(b)(1) provides that Selecting Officials will:
Consider fully and objectively every candidate listed on the DA Form 2600 (Referral and Selection Register).
3. CECOM 690-335(14)(a) provides:
Supervisors and/or the CPO will promptly respond to an employee's question or complaint about the general operation of the Merit Promotion and Internal Placement Program or about a specific placement or promotion action, and will provide the employee with an explanation and information permitted in accordance with regulatory provisions.
4. We note that the parties' collective bargaining agreement does not substantively address merit promotion and that the Arb