48:0873(92)AR - - Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, NJ and NFFE, Local 1437 - - 1993 FLRAdec AR - - v48 p873
[ v48 p873 ]
The decision of the Authority follows:
48 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMAMENT RESEARCH, DEVELOPMENT
AND ENGINEERING CENTER
PICATINNY ARSENAL, NEW JERSEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
November 15, 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 Alexander M. Freund filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Union filed a grievance protesting the Agency's selection of an employee to fill a GS-13 vacancy. The Union contended that the employee selected for the position was preselected by the Agency and was not qualified for the position. The Arbitrator sustained the grievance and ordered the selected employee removed from the position and the promotion rerun. The Arbitrator also ordered that the selected employee could not be considered for the position when the promotion action was rerun. For the following reasons, we find that the Agency's exceptions fail to establish that the award is deficient and the exceptions will be denied.
II. Background and Arbitrator's Award
The Agency posted a vacancy announcement for a newly-created position of Chemical Engineer, GS-893-13, to manage an incineration facility for the disposal of explosive waste. The Agency established the knowledge, skills and abilities (KSAs) required in order for candidates to be qualified for the position. Pursuant to the merit promotion procedures negotiated in the parties' collective bargaining agreement, the Agency selected a subject matter expert (SME) to evaluate candidates and prepare a list of highly-qualified applicants for submission to the selecting supervisor. The SME developed a list of highly-qualified candidates under the KSAs. The list did not include the person eventually selected to fill the position (the selectee). The selecting supervisor did not make a selection from the list submitted by the SME. He asked the staffing specialist "to convene another panel because he wanted a larger number of highly[-]qualified candidates from which to choose." Award at 4. The staffing specialist discarded the first list. The Agency subsequently established another panel consisting of two other SMEs. The second panel determined that nine candidates were highly qualified for the position. One of those candidates was the selectee.
The Union filed a grievance over the selection action claiming that the selectee was not qualified under the KSAs established for the position and was preselected by the Agency. In an effort to resolve the grievance at the second step of the grievance procedure, the Agency referred the list of applicants to a third panel of SMEs. That panel found that five applicants, including the selectee, were highly qualified for the position. The Union did not accept the Agency's attempt to resolve the grievance and the grievance was submitted to arbitration on the following issues, framed by the parties:
1. Was the merit promotion system agreed to by the parties violated by the selection of [the selectee] for ARDEC [Armament Research, Development and Engineering Center] Vacancy Announcement 434-90 through preselection?
2. Did the Agency violate 5 U.S.C. [§] 2302(b)(6) in selecting [the selectee] for the promotion?
3. Did the Agency violate AR [Army Regulation] 690-300 by discarding the original list developed by [the first SME]?
Id. at 6.
The Arbitrator noted that the Agency acknowledged that it had acted improperly in discarding the first SME's list of qualified applicants but denied that that action constituted a violation of the parties' collective bargaining agreement or AR 690-300, which sets forth requirements for the documentation of promotion actions. However, the Arbitrator found that the list of highly-qualified applicants developed by the first SME was "necessary to reconstruct the promotion action involved here." Id. at 11. He also held that the first SME's list "was part of the record of the promotion action" and that "the discarding of his list was a violation of AR 690-300 and also of the [c]ollective [b]argaining [a]greement . . . ." Id. at 13.
The Arbitrator next addressed whether the Agency had violated 5 U.S.C. § 2302(b)(6), which generally prohibits the granting of preferential treatment, by selecting the selectee without regard to the Agency's merit promotion policy. The Arbitrator examined the manner in which the KSAs of the position were applied to the applicants for the position by the three SME panels. The KSAs were as follows:
1. Knowledge of hazardous waste storage and incineration principles[;]
2. Knowledge of state and [F]ederal environmental regulations[;]
3. Experience in project life cycle management; design, proto-type development, construction/fabrication/production, test and full-scle (sic) operation[; and]
4. Knowledge/experience in contractual process: scopes of work, bidding, selection, and contract negotiations[.]
Id. at 2-3.
The Arbitrator concluded that the first SME had properly found that the selectee was not qualified for the position because the selectee did not meet all of the KSAs. The Arbitrator agreed with the first SME's conclusion that the selectee did not possess the necessary training and experience in hazardous waste disposal and with the SME's testimony that the "[s]electee's expertise does not include the first two essential elements for the 434-90 vacancy." Id. at 16. The Arbitrator also found that the second and third SME panels that had found the selectee highly qualified lacked the background in environmental regulations and waste incineration required to assess the selectee's qualifications under the KSAs. The Arbitrator stated that he had "no basis in the record for ruling that the [second and third SME] panels' evaluations are determinative of the question whether or not the [s]electee should have been included in the list of highly qualified applicants referred to the [s]electing [s]upervisor." Id.
The Arbitrator found that the selectee lacked the required experience and training in the most important elements of the position, namely, "knowledge of hazardous waste storage and incineration principles." Id. at 19. The Arbitrator rejected the reasons given by the selecting supervisor for choosing the selectee over another candidate who clearly possessed incineration experience and who was ranked within three points of the selectee on the highly-qualified list. The selecting supervisor testified that he had chosen the selectee because he felt the selectee would function better in obtaining environmental permits and that obtaining permits was a more important factor in the position than technical expertise in incineration. However, the Arbitrator found that the selecting supervisor's testimony failed to establish that the selectee was better qualified than the other candidate with respect to obtaining environmental permits and found "no objective basis for finding that the [s]electee was 'somewhat ahead' of [the other candidate] in respect to knowledge of state and federal regulations." Id. at 22.
The Arbitrator concluded that "in selecting [the selectee] on the basis of his environmental background, the [s]electing [s]upervisor changed, in effect, the requirements for the vacancy." Id. at 23 (footnote omitted). The Arbitrator found that the Agency improperly emphasized the environmental permit factor in choosing the selectee for the position and "in permitting that potential problem to dominate its thinking, [m]anagement violated 5 U.S.C. [§] 2302(b)(6), which states that an employee in a position of authority shall not 'grant any preference or advantage not authorized by law, rule or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements of any position) for the purpose of improving or injuring the prospects of any particular person for employment.'" Id. at 24 (emphasis omitted).
The Arbitrator sustained the grievance and ruled that the Agency violated: (1) its merit promotion system by preselecting the selectee; (2) 5 U.S.C. § 2302(b)(6); (3) AR 690-300 by discarding the highly-qualified list prepared by the first SME; and (4) the merit system requirements of the parties' collective bargaining agreement.
In discussing a remedy, the Arbitrator found that the selectee should be removed from the position. He rejected the Agency's contention that such an action would be contrary to the Federal Personnel Manual (FPM), chapter 335, subchapter 1-4, Requirement 5, and would interfere with management's right to select in filling positions under section 7106(a)(2)(C) of the Statute. The Arbitrator further found that it would not be necessary to rerun the entire promotion action. Rather, he ruled that "[t]he names of all the candidates highly qualified by the two [SME] panels and those chosen by [the first SME], if he can recall them, should be referred to the [s]electing [s]upervisor, excluding any duplications and [the selectee] of course." Id. at 27. He also provided that the promotion action, when rerun, should be open to any other candidates rated as highly qualified "by a panel appointed by [m]anagement." Id.
III. Positions of the Parties
A. The Agency
The Agency asserts that the award ordering the removal of the selectee from the position pending a rerun of the selection action is contrary to FPM chapter 335, Appendix A-4b(1)(b).(1) The Agency argues that reconstruction of the promotion action, particularly the rating of the selectee by the first SME, is impossible because the rating paperwork has been discarded. Further, the Agency argues that the subsequent rating of the selectee as highly-qualified by the second and third SME panels shows that the selectee was qualified to have been selected and, therefore, he was entitled to remain in the position pending the rerunning of the promotion action.
The Agency contends that the award is contrary to 5 U.S.C. § 2301(b)(1) and (2) because it violates the merit system principle that all applicants for positions be treated fairly and equitably. The Agency also contends that the award is contrary to 5 C.F.R. § 4.3 because it requires the selectee to withdraw from competition for the position.(2) The Agency maintains that the Arbitrator has violated those merit system principles by preventing the selectee from applying for the GS-13 position.
Further, the Agency contends that the award interferes with its right under FPM chapter 335, subchapter 1-4, Requirement 4, to select from any available source when filling positions.(3)
The Agency maintains that "by limiting management's right to select from internal candidates (those referred by the three SME panels and those employees who apply under the reannounced vacancy) [the award] violates this FPM provision." Exceptions at 5.
The Agency asserts that the award is also deficient because it interferes with management's right to determine whether it still wishes to fill the position as a Chemical Engineer, GS-13 position. The Agency argues that, following the first vacancy announcement 2 years ago, there was a reorganization in which that position was converted to a General Management (GM) position designated as Supervisory General Engineer, GM-893-13. The Agency argues that the award requiring the Agency to reannounce the original position interferes with management's right to determine the numbers, types and grades of positions within the organization. The Agency also maintains that the award prevents it from changing the requirements of the position should it be determined that "'[k]nowledge of hazardous waste storage and incineration principles', for example, is no longer a major component of the position . . . ." Id. at 6.
B. The Union
The Union contends that the Agency's exceptions fail to show that the award is deficient. The Union maintains that the Arbitrator properly ordered the selectee removed from the position based on the Arbitrator's finding that the selectee was not qualified for the position. Similarly, the Union asserts that the Arbitrator properly removed the selectee from consideration on the rerunning of the promotion action because the selectee was not qualified for the position.
IV. Analysis and Conclusions
We will find an award deficient when it is contrary to law, rule, or regulation. For the following reasons, we find that the Agency has failed to demonstrate that the award is deficient and we will deny the Agency's exceptions.
Initially, we find that the Agency has failed to establish that, by ordering the Agency to remove the selected employee from the disputed position, the award is inconsistent with FPM chapter 335, Appendix A. The provisions of FPM chapter 335 govern promotion and internal placement. Appendix A authorizes the retention of an incumbent employee pending action to correct a procedural violation, but only if certain conditions are satisfied. Specifically, under section A-4(b)(1)(b) of Appendix A, an employee may be retained in a position only if reconstruction of the promotion action demonstrates that the employee could have been selected had the proper procedures been followed at the time of the selection action or if the Office of Personnel Management (OPM) office with geographic jurisdiction approves the retention. The Authority consistently has held that where an arbitrator determines that an agency violated proper procedures in filling a vacant position, the incumbent employee is entitled to be retained in the position pending the corrective action unless it is specifically determined by the arbitrator that the incumbent originally could not have been properly selected. See, for example, U.S. Department of the Army, Headquarters, U.S. Army Garrison, Fort Sam Houston, Texas and National Federation of Federal Employees, Local 28, 45 FLRA 879, 881-82 (1992) and cases cited therein.
In this case, the Arbitrator found that the Agency had violated the merit promotion requirement of the parties' collective bargaining agreement and an Agency regulation. The Arbitrator specifically determined that the selected employee was not qualified for the GS-13 position and, therefore, "could not have been included among the best[-]qualified candidates referred to the [s]electing [o]fficial" because the employee did not possess all of the KSAs established for the position. Award at 26. This determination constitutes a finding by the Arbitrator that the employee originally could not have been selected for the position. Thus, there was no basis under the applicable requirements set forth in FPM chapter 335, Appendix A on which to retain the selected employee in the position. Consequently, the Agency has failed to establish that the award is deficient as contrary to FPM chapter 335, Appendix A, and this exception is denied. Compare New York State Council of the Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, New York State Department of Military and Naval Affairs, 46 FLRA 66, 71-73 (1992) (National Guard Bureau) (Authority modified award to require the removal of an employee who, at the time of the selection action, did not meet the qualification requirements for the disputed position and could not have been properly selected).
We also conclude that the Agency has failed to establish that the Arbitrator's award is contrary to merit system principles contained in 5 U.S.C. § 2301(b)(1) and (2) and 5 C.F.R. § 4.3. The Authority has held that merit system principles are hortatory and are not self-executing and that to establish a finding of a prohibited personnel practice under 5 U.S.C. § 2302(b), a party must show that: (1) the disputed personnel action violated law, rule, or regulation; and (2) the law, rule, or regulation implements or directly concerns merit system principles. See National Association of Government Employees, Local R4-78 and U.S. Department of Veterans Affairs, Medical Center, Martinsburg, West Virginia, 46 FLRA 631, 636-37 (1992) (union failed to establish that award was deficient under 5 U.S.C. § 2302(b) because there was no showing that agency had committed a prohibited personnel practice). The Agency fails to show that the Arbitrator has violated merit system principles in any way by preventing the selectee from applying for the GS-13 position. As noted previously, the Arbitrator clearly found that the selectee was not qualified for the position under the KSAs established for the position by the Agency. The award precluding the selectee from being considered in the rerunning of the selection action is consistent with the finding that the selectee was not qualified for the announced position and in no way treats the selectee unfairly or inequitably. Accordingly, this exception is denied. See Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 349-50 (1990) (denying exception claiming that an award concerning the filling of certain vacancies violated 5 U.S.C. § 2301(b)(1)).
Additionally, we find no merit in the Agency's exception that the Arbitrator's award is contrary to FPM chapter 335, subchapter 1-4, Requirement 4, because it interferes with the Agency's right to select from any appropriate source. We construe the Agency's exception as also contending that the award is contrary to management's right to select employees under section 7106(a)(2)(C) of the Statute.
Both section 7106(a)(2)(C) and FPM chapter 335, subchapter 1-4, Requirement 4, provide that management has the right in filling positions to select from a group of properly ranked and certified candidates for promotion or from any other appropriate source. When an arbitrator is not enforcing a contractual arrangement, management's right to make selections for promotion can be abridged by an award of an arbitrator only when the arbitrator finds a direct connection between improper agency action and the agency's failure to select a specific employee for promotion. See Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, Chapter 242, 45 FLRA 437, 443 (1992). In this case, the Arbitrator did not find that the Agency should have selected a specific employee. Rather, the Arbitrator found that the Agency had violated merit promotion provisions in its agreement and regulation and, as a consequence, had improperly selected an unqualified employee for the position. The selectee was not a properly ranked and certified candidate for selection by the Agency and, therefore, could not have been selected. Consequently, we conclude that the Arbitrator's award does not interfere with the Agency's right to select employees under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4.
Further, we find no basis for the Agency's contention that the award is deficient because it limits management's right to select from any available source by limiting management to considering only internal candidates in rerunning the promotion action. We have held that an arbitrator cannot limit an agency's right to select by ordering the agency to make a selection from a specific list of candidates and precluding the agency from making a selection from any available source. See Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 32 FLRA 997, 1001-02 (1988). However, the award in this case does not limit the Agency's right to select in that manner. Rather, the award merely orders the rerunning of the promotion action in accordance with the conditions and requirements that the Agency established and applied in the initial promotion action. Further, the award permits the Agency to consider additional candidates properly found to be qualified for the position. The only restrictions imposed by the Arbitrator are the requirements that the original selectee cannot be considered because he is not qualified for the position and that the employees who originally made the highly-qualified lists be considered. We find nothing in the award in this regard that interferes with the Agency's right to select.
With respect to the Agency's contention that the Arbitrator's award is deficient because it requires the Agency to establish and fill a position that it no longer desires to fill, we note that the Agency did make a selection for a Chemical Engineer, GS-13 position. The Agency has provided no basis for finding the award deficient with regard to the reannouncement of that position. Consequently, if the Agency intends to retain and fill the position and reannounce a vacancy for that position, then the Agency must comply with the award.
However, if the Agency has abolished the original Chemical Engineer, GS-13 position and does not intend to fill the position, we find nothing in the award that specifically requires the Agency to rerun the promotion action. Stated differently, we construe the award as requiring the Agency to rerun the promotion action only if the Agency determines to fill the same position that was originally announced. We find that, under the award, the Agency is free to elect not to fill the original GS-13 position. See National Guard Bureau, 46 FLRA at 72-73 (conditioning modification of an award on the assumption that the agency "elects to fill the vacated position" and noting that "the [a]gency is free to exercise its right not to fill the position, in which case there would be no obligation to rerun the selection action"). We find, therefore, that the Agency has not shown that the award is deficient. In view of our conclusion that the award does not require the Agency to fill the position, we also find that there is no need to consider the Agency's contention that the award interferes with its right to determine the numbers, types and grades of positions within its organization. Accordingly, we deny the Agency's exception.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. FPM Chapter 335, Appendix A-4b(1)(b) provides, in relevant part:
(b) Action involving erroneously promoted employee
(1) Retention in position.
. . . .
(b) Procedural violation. In this kind of violation, an employee may be retained in the position only if--
(i) Reconstruction of the promotion action shows that he or she could have been selected had the proper procedures been followed at the time the action was taken; or
(ii) The OP