48:0466(43)AR - - NRC, Arlington, TX and NTEU - - 1993 FLRAdec AR - - v48 p466
[ v48 p466 ]
The decision of the Authority follows:
48 FLRA No. 43
FEDERAL LABOR RELATIONS AUTHORITY
U.S. NUCLEAR REGULATORY COMMISSION
NATIONAL TREASURY EMPLOYEES UNION
September 3, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Harold H. Leeper 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 contesting the Agency's selection of an employee for promotion. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance on behalf of two employees contesting the selectee's promotion to the position of Senior Radiation Specialist, GG-14. The grievance was not resolved and was submitted to arbitration.
As relevant here, the issue before the Arbitrator was:
Whether the Agency pre-selected [the selectee] for the GG-14 Senior Radiation Specialist job in violation of [l]aw, [r]ule, [r]egulation or the Collective Bargaining Agreement and Manual Chapter [Appendix] 4108. If so, what is the appropriate remedy?
Award at 2.(1)
The Union argued that the disputed selection failed to comply with NRC Manual Appendix 4108, Part III, E(2)(b).(2) In particular, the Union argued that the selectee was not qualified for the position because she lacked an academic degree.
The Arbitrator noted that the announcement for the disputed position required "broad knowledge in the field of Health Physics 'equivalent to that obtained through the completion of courses required for a Master's degree.'" Id. at 15 (emphasis in original). He determined that the Agency did not require applicants to possess an academic degree and that the Agency's "emphasis is on equivalence of knowledge rather than possession of academic degrees." Id. The Arbitrator found that the selectee possessed specialized knowledge and work experience prior to her Agency employment, noting that she was hired:
[i]n response to an [Agency] instruction . . . [to add] inspectors who were qualified in nuclear materials operations in hospitals and other medical facilities. . . . In fact, the kind of positions [the selectee] held during over  years of work with nuclear materials in hospitals, including training technicians and physicians in the use of those materials, appears to be exactly the sort of experience that the [Agency] desired.
Id. at 14, 15. Citing subparagraph E(2)(a) of NRC Manual Appendix 4108, Part III, the Arbitrator stated that an "unstructured, loose delegation of authority" had been made to Agency personnel specialists and officials to make determinations regarding Agency positions. Id. at 17. The Arbitrator also stated that, "despite [his] numerous requests" for explanations of relevant qualification requirements, the parties had presented "almost no evidence . . . concerning the knowledge of principles, theories and practices in the field of health physics which would be obtained through completion of courses required for a Master's degree." Id. at 15.
The Arbitrator concluded that the Union failed to demonstrate by a preponderance of the evidence that the selectee was not qualified for the Senior Inspector position. Accordingly, as his award, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union asserts that the disputed selection violated NRC Manual Appendix 4108. According to the Union:
[t]he Arbitrator ignored subsection (2)(b) entirely . . . The Arbitrator analyzed subsection (2)(a), decided that the personnel specialist had authority to make the determination, and neglected to look any further.
Exceptions at 6-7.
The Union also argues that "[b]ecause the record consists of absolutely no testimony that would support the position that [the selectee] possessed the "'equivalent of a [M]aster's degree'" . . .[the] [a]ward is based upon a nonfact." Id. at 10. In this regard, the Union asserts that the Arbitrator relied on "broad, general language used in support of [the selectee's] qualifications" and ignored testimony which demonstrated that the selectee was not minimally qualified for the position. Id. at 8.
The Agency asserts that the Union has failed to establish that the award is deficient. The Agency contends that the Union's exceptions constitute only disagreement with the Arbitrator's findings and conclusions and fail to demonstrate that the award is deficient.
IV. Analysis and Conclusions
We have stated that we will find an award deficient under section 7122(a) of the Statute "when the award conflicts with an agency rule or regulation so long as the rule or regulation . . . applies to the the matter in dispute and does not conflict with similarly applicable provisions of the collective bargaining agreement." U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 20