46:1347(131)AR - - AFGE Local 3407 and DOD, Defense Mapping Agency - - 1993 FLRAdec AR - - v46 p1347
[ v46 p1347 ]
The decision of the Authority follows:
46 FLRA No. 131
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
February 10, 1993
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 Ira F. Jaffe 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 grievant filed a grievance challenging the Agency's failure to promote her to a GS-12 Cartographer position under the Mapping, Charting and Geodesy Certification Program (MC&G CP). The Arbitrator found that the Agency properly determined that the grievant's qualifications did not warrant her promotion, and therefore, denied the grievance.
For the reasons stated below, we conclude that the Union's exceptions fail to demonstrate that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
In 1990 the Agency established the MC&G CP for the professional certification of employees engaged in MC&G production functions. Policies and guidance concerning the program are set forth in Defense Mapping Agency Manual (DMAM) 1400.40, an Agency regulation. Under the regulation, candidates for certification are evaluated under various factors, including performance, and must demonstrate that their three most recent performance appraisal ratings "meet or exceed the following: one Outstanding rating at or above the GS-11 level, and 2 Highly Successful ratings at any grade level." Agency Exh. D3 at 5-1.
In June 1990, the Agency announced, in conjunction with the MC&G CP, vacant GS-12 cartographer positions. The grievant, a GS-11 cartographer, applied for one of the vacancies. Prior to the Agency's final selections for the vacant positions, the Office of Personnel Management (OPM) reviewed the MC&G CP and suggested certain changes to the program.(1)
As a result of OPM's suggestion, the Agency modified the MC&G CP candidate evaluation process as follows:
a. A crediting plan will be developed based on three criteria: ability to use DMA systems and production functions to produce MC&G products; communication ability; and proficiency in performing MC&G duties. . . .
b. The candidates who applied will be reevaluated against the new crediting plan . . . .
Union's Exh. 5, Letter dated November , 1990. The crediting plan developed by the Agency contained the same selection criteria as DMAM 1400.40 and used a 100-point scale which allocated 50 points for work experience and communication skills, and 50 points for performance. Consistent with DMAM 1400.40, performance points were based on a candidate's three most recent performance appraisals.
Using the crediting plan, previous applicants for the GS-12 cartographer positions, including the grievant, were reevaluated. At that time, the grievant's three most recent performance appraisals were "outstanding," "outstanding," and "highly successful." However, the two "outstanding" appraisals related to her performance in a "non-production" position. Award at 11. Based on the Agency's interpretation of DMAM 1400.40 and the crediting plan as entitling a candidate to full performance credit for appraisals only insofar as the they were based on performance in "production" positions, the grievant received only 10 performance points. Id. at 12. As a result, the grievant was not placed on the Best Qualified (BQ) list and was not promoted.
A grievance was filed over the Agency's failure to promote the grievant and, when the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue before him as whether the "Agency's refusal to certify the [g]rievant for the MC&G CP Cartographer position . . . was contrary to the terms of the MC&G CP, an internal Agency regulation." Award at 18.
Before the Arbitrator, the Union argued, as relevant here, that the Agency's failure to promote the grievant was improper because the crediting plan on which the Agency relied "did not meet the requirement imposed by OPM that an applicant not be disqualified simply by being unable to attain the maximum points on any element." Id. at 13. In addition, the Union asserted that the Agency violated DMAM 1400.40 by failing to fully credit the grievant's two "outstanding" ratings because they were not earned in a production position.
The Arbitrator found that the Agency's failure to fully credit the grievant's two "outstanding" performance appraisals did not violate DMAM 1400.40 or the parties' agreement because, according to the Arbitrator, the record before him demonstrated that the MC&G CP was designed to select individuals for senior production assignments. The Arbitrator also found that "the undisputed facts reveal that the [g]rievant failed to be rated at the Outstanding level while in a production area work assignment." Id. at 19. The Arbitrator concluded that "[n]othing in the Agreement precluded the Agency from utilizing DMAM 1400.40 and the crediting plan developed in accordance with [it]" and that the MC&G did not violate "any applicable federal law, rule, or [G]overnment wide regulation." Id. at 18. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator exceeded his authority and "disregard[ed] the collective bargaining agreement between the parties and the law in ruling that the actions of the Agency were proper . . . ." Exceptions at 3. The Union argues that, by allowing the Agency to certify ineligible candidates for promotion while improperly failing to certify the grievant, the award conflicts with a "[G]overnment wide rule" requiring agencies to make selections from properly ranked and certified candidates. Id. at 6. The Union also argues that, by refusing to fully credit the grievant's two outstanding performance appraisals, the Agency violated DMAM 1400.40 and failed to comply with OPM directives. Finally, the Union claims that the award fails to draw its essence from the parties' agreement because, according to the Union, the Agency failed to submit the crediting plan to the Union as required by Article XII of the agreement.(2)
The Agency contends that the Union fails to demonstrate that the award is deficient. According to the Agency, the exceptions constitute mere disagreement with the Arbitrator's evaluation of the evidence.
IV. Analysis and Conclusions
A. 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, or awards relief to persons who are not parties to the grievance. U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1141 (1992). Although the Union asserts that the Arbitrator exceeded his authority, the Union does not contend that the Arbitrator resolved an issue not properly before him, or granted relief to anyone who was not a party to the grievance. Moreover, no basis on which to conclude that the Arbitrator exceeded his authority is asserted or apparent to us. Accordingly, we will deny this exception.
B. Award Is Not Contrary to Law, Rule or Regulation.
We reject the Union's contention that the award is inconsistent with law. The Union does not specify the law to which it refers and no such inconsistency is apparent to us.
We also reject the Union's argument that the award is deficient because it allows the Agency to disregard the "[G]overnment wide rule that all selections must be appointed from properly ranked and certified candidates." Exceptions at 6. The Union has failed to cite the rule on which it relies. More importantly, however, the Arbitrator concluded that the Agency acted properly in rating and ranking the candidates, including the grievant, for certification under the MC&G program. The Union's exceptions provide no basis for concluding that the Arbitrator erred or that, on any other basis, the Agency's selections were not made from among properly ranked and certified candidates.
Similarly, the record provides no basis for concluding that the award is deficient because the Arbitrator allowed the Agency to utilize a crediting plan that was not developed in accordance with directives of, or approved by, OPM. The Union has not demonstrated either that OPM approval was required, or that if it was required, such approval was not obtained. In this connection, we note that the record before us suggests that, following modification of the program in response to OPM suggestions, OPM and the Agency reached "agreement" that the plan satisfies "all of OPM's policy requirements." Union's Exh. 5, Letter dated November 8, 1990. An unsupported allegation that the award is contrary to law, rule, or regulation is no basis for finding an award deficient. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 527, 530 (1992).
Finally, we reject the Union's contention that the award violates DMAM 1400.40 because, according to the Union, that regulation does not contain "language which would have limited the annual performance ratings to work in a production element." Exceptions at 6. The Arbitrator found that "[t]he Agency's interpretation of DMAM 1400.40 so as to require that the Outstanding rating be earned in relevant production work [is] consistent with the intent of the MC&G CP[,]" which was designed to select individuals for senior production assignments. Award at 19. The Union has not shown that the Arbitrator's interpretation of the regulation is erroneous. Accordingly, this argument does not demonstrate that the award is deficient. American Federation of Government Employees, Council 236 and General Services Administration, 45 FLRA 813 (1992).
In sum, the Union has not shown that the award conflicts with law, rule, or regulation. Accordingly, we will deny this exception.
C. Essence of the Parties' Agreement.
We reject the Union's contention that the award does not draw its essence from the collective bargaining agreement. To demonstrate that an award is deficient on this ground, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the 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. For example, American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499 (1992).
Relying on Article XII, the Union contends that the Arbitrator found that the Agency's use of the disputed crediting plan "did not violate the agreement . . . is unfounded in fact and not connected with the wording and purpose of the agreement." Exceptions at 6. However, the Arbitrator found that "[n]othing in the Agreement precluded the Agency from utilizing DMAM 1400.40 and the crediting plan developed in accordance with [it] . . . ." Award at 18.
The Union's has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement.(3) Rather, we find that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement is not a ground for finding an award deficient. See, for example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). Accordingly, we will deny this exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. It appears that, following review of the initial certification program, OPM suggested that the Agency modify the program so that candidates would not be found ineligible solely on the basis of a failure to receive maximum points for any single element. See Union's Exh. 5.
2. Article XII of the parties' agreement provides as follows, in pertinent part:
[The Agency] will convey the "Crediting Plan" to be used in filling a unit