48:1021(111)AR - - American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress - - 1993 FLRAdec AR - - v48 p1021



[ v48 p1021 ]
48:1021(111)AR
The decision of the Authority follows:


48 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES, LOCAL 2477

(Union)

and

LIBRARY OF CONGRESS

(Agency)

0-AR-2483

_____

DECISION

December 2, 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 James M. Harkless 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 did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance over the Agency's failure to select the grievant for a 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

Under the provisions of the parties' collective bargaining agreement and the Agency's Merit Selection Plan (Agency's Plan), the Agency is required to refer qualified applicants to a rating panel if there are six or more applicants for a vacancy. The rating panel, in turn, is required to "refer the five 'better qualified' applicants" to the selection official. Award at 7. If there is more than one vacancy to be filled, the rating panel is required to refer three additional applicants for each additional vacancy.

Over a 19-month period, the grievant, a GS-8 Preliminary Cataloger of German language materials in the Agency's Shared Cataloging Division (Division), applied under several different vacancy announcements for promotions to higher-level positions but was not selected for promotion. In August 1989, the grievant applied for a position but did not receive enough rating points from the rating panel for referral to the selecting official. The grievant discovered, subsequently, that his rating did not include any veterans' preference points because the Agency did not give preference to veterans. In late 1990 or early 1991, the grievant, in conjunction with a veterans' organization, began to campaign for the granting of veterans' preference at the Agency. Additionally, in 1990, the grievant became active in the Union, eventually becoming a Union steward.

In April or May 1991, the grievant applied under Vacancy Announcement 10213 for a promotion to a Minimal Level Cataloger, GS-9/11 position in the Division's German Language Section. The vacancy announcement notified applicants that the Agency reserved the right to fill any number of positions that became vacant during the life of the announcement. The Agency subsequently decided to fill two positions under Vacancy Announcement 10213. Before initiating the selection process, the Agency decided to fill one of the positions at the GS-9 level and the other position at the GS-11 level. The grievant was not qualified for the GS-11 position.

There were more than six applicants under Vacancy Announcement 10213 for a position at the GS-9 level. Those candidates qualified to fill a position at the GS-9 level were referred by the Agency's Recruitment and Placement Office to a rating panel. Subsequently, the panel rated eight candidates, including the grievant, as "better qualified" and placed them on the GS-9 referral list that was given to the selecting official. There were fewer than six applicants who were in or eligible for grade GS-11. Those candidates were not referred to a rating panel. Rather, the Agency's Recruitment and Placement Office placed those candidates on the GS-11 referral list and gave that list to the same selecting official. With the exception of candidates who were unavailable, the selecting official interviewed all of the candidates on the two referral lists, including the grievant.

To fill the two vacancies under the announcement, the selecting official selected one candidate from the GS-9 referral list and one candidate from the GS-11 referral list. A candidate from outside of the Division was selected to fill the GS-9 position. The selecting official testified that her first two choices from the GS-9 list "said they would decline offers" for the GS-9 position. Id. at 9. The selecting official also testified that if the GS-9 selectee had declined the offer for the GS-9 position, the grievant would have been offered the GS-9 position. The selectee for the GS-11 position had been placed on a temporary 90-day assignment in the Division's German Language Section, along with five other employees, prior to the posting of Vacancy Announcement 10213.

The Union grieved the grievant's nonselection. The grievance was unresolved and was subsequently submitted to arbitration.

The Arbitrator stated that the issues before him were:

[1.] [W]hether in filling two positions under Vacancy Announcement 10213 the [Agency] violated any of its merit selection procedures or policies and, if so, what impact or significance this had on the [g]rievant's candidacy under the vacancy announcement[?]

[2. Was the grievant] the victim of discrimination or reprisal in the selection process[?]

Id. at 17, 21.

As to the first issue, the Arbitrator noted that the Agency had lost the folder for Vacancy Announcement 10213 and that he was unable to "ascertain precisely the procedure" the Agency followed in the selection process with respect to this announcement. Id. at 8. However, the Arbitrator found that this was not "fatal" to the procedure followed by the Agency in filling the GS-9 level position. Id. at 19. The Arbitrator noted that the Union "d[id] not seriously question" the Agency's selection of the GS-9 selectee, but rather, "focused" on "the propriety of the selection" of the GS-11 selectee. Id. at 20.

Based on the evidence before him, the Arbitrator found that any vacancies filled under Vacancy Announcement 10213 could have been filled at either the GS-9 or the GS-11 level. Further, he found that the qualifications requirements for the two grade levels differed and that the grievant did not qualify at the GS-11 level. The Arbitrator ruled that once the Agency decided to fill two vacancies under the announcement, at two different grade levels, the Agency treated those vacancies "as two separate grade-level positions, one at GS-9 and one at GS-11." Id. at 8. He stated that "this was logical since candidates at each level then would be evaluated against each other on the basis of the specific qualifications for that level." Id. at 18. He noted that the parties' agreement provides that separate referral lists shall be developed for multi-graded vacancies.

The Arbitrator found that there was nothing in the parties' agreement or the Agency's Plan which precluded the Agency from specifying separate qualifications requirements for the GS-9 and the GS-11 applicants. Further, the Arbitrator found nothing in those provisions that would "prohibit the separate-referral-list procedure" employed by the Agency in filling the two positions under Vacancy Announcement 10213. Id. at 19. According to the Arbitrator, even if all eligible applicants had been referred to a rating panel, the panel would still have had to draw up two referral lists, one for GS-9 candidates and one for GS-11 candidates.

Because the grievant was not qualified to fill the GS-11 position and the GS-11 selectee was considered solely for the GS-11 position, the Arbitrator found that "a comparison between" the grievant and the GS-11 selectee "would not have been appropriate[.]" Id. at 20. The Arbitrator also found that the referral of the grievant by the rating panel as a "better qualified" GS-9 candidate, compared with the Agency's Recruitment and Placement Office's referral of the GS-11 selectee as a "qualified" GS-11 candidate, was not a "meaningful" comparison. Id. Accordingly, based on the testimony at the hearing and record as a whole, the Arbitrator denied the Union's grievance with respect to the first issue.

As to the second issue, the Arbitrator found "no basis to conclude that the [g]rievant was the victim of discrimination or reprisal in the selection process." Id. at 21. The Arbitrator noted that the grievant was a "visibly active member of the Union and advocate for veterans' rights." Id. However, the Arbitrator found that "the mere coupling of these facts with the fact that he was unsuccessful in securing a position under Vacancy Announcement 10213 [was] not sufficient to justify a finding of discrimination or reprisal." Id. The Arbitrator explained that "[s]omething more, such as evidence of . . . management['s] animus toward the [g]rievant for having engaged in these activities and evidence of tangible steps taken by it to act on such animus, would be needed to establish the connection." Id.

The Arbitrator also noted that the grievant testified that "his visible Union activities and advocacy for veterans' rights displeased" the Agency and that, in particular, the Assistant Chief of the Division had a "negative" relationship with the Union. Id. at 4. The Arbitrator determined that even assuming, as contended by the Union, a negative relationship existed between the Union and the Assistant Chief of the Division, "[i]t would have taken a well-orchestrated conspiracy to thwart [the grievant's] candidacy" for selection under the vacancy announcement, where, as here, "there is absolutely no evidence that [the selecting official] was aware of the [g]rievant's Union and veterans' rights efforts or bore any ill-will towards him because of them." Id. at 22. The Arbitrator ruled that the evidence did not support a finding that such a conspiracy existed.

Moreover, the Arbitrator found, contrary to the Union's assertion, that the evidence did not support a finding that "the procedure followed to fill positions under the vacancy announcement was designed to 'pre-select'" the GS-11 selectee or that the GS-11 selectee was in fact "pre-selected" for a position. Id. Although the Arbitrator conceded that the GS-11 selectee's temporary assignment to the Division benefited her, he found that it did not "disadvantage" the grievant because he was not in direct competition with the GS-11 selectee to fill a vacancy under Vacancy Announcement 10213.

Accordingly, the Arbitrator concluded that the evidence failed to show that the grievant's nonselection under Vacancy Announcement 10213 was an act of discrimination or reprisal or the result of the improper preselection of the GS-11 selectee. Consequently, the Arbitrator denied the grievance with respect to the second issue as well.

III. Exceptions

The Union contends that the Arbitrator's award is based on nonfacts and that the Arbitrator "failed to follow the clear mandates of the parties' collective bargaining agreement" and the Agency's Plan. Exceptions at 1. For these reasons, according to the Union, the award is contrary to law.

The Union asserts that the Arbitrator erred in finding that no procedural violations occurred in the selection process under Vacancy Announcement 10213. Further, the Union asserts that the Arbitrator erroneously found that there was no evidence that the GS-11 selectee was preselected. In particular, the Union disputes the Arbitrator's evaluation of the evidence and testimony before him and argues that its position amounts to "more than mere disagreement with the Arbitrator's viewpoint or assessment of the evidence." Exceptions at 11.

The Union asserts that the rating panel was required by the parties' collective bargaining agreement and the Agency's Plan to rate all applicants during the rating process, not just the GS-9 applicants. Therefore, the Union claims that the Agency followed improper procedures with respect to the ranking of candidates for a position at the GS-11 level. Because the selecting official "received a list of [GS-11] candidates who were not properly ranked and certified[,]" the Union asserts that the GS-11 selectee was "wrongfully certified to the selecting official and chosen for the job." Id. at 8 (emphasis omitted). Relying on the selecting official's testimony that if the GS-9 selectee had declined the offer of the GS-9 position she would have next offered the position to the grievant, the Union claims that "but for" the Agency's improper actions, the grievant, rather than the GS-11 selectee, would have been offered the second vacant position under the announcement. Accordingly, the Union disputes the Arbitrator's finding that the grievant "was 'not in direct competition'" with the GS-11 selectee for one of the vacant positions. Id. at 10 (citing Award at 23).

Additionally, the Union asserts that the selection procedure was improper because "neither the collective bargaining agreement nor the Plan justifies the number of [GS-9] candidates sent to the selecting official" Id. at 8 (emphasis omitted). The Union maintains that as the Plan only requires the forwarding of five ranked candidates for one vacancy under an announcement, but requires three additional ranked candidates for each additional vacancy under an announcement, forwarding the GS-9 referral list with eight candidates to the selecting official "could only have been done properly if the selecting official were going to fill two GS-9 slots." Id. at 9.

Moreover, the Union maintains that, because the Arbitrator based his award on nonfacts and "failed to follow the clear mandates" of the parties' agreement and the Agency's Plan, the award is contrary to law. Id. at 1. The Union argues that "the law requires that the terms of the [parties'] collective bargaining agreement are to be given meaning and application." Id. at 11. The Union asserts that by allowing the Agency to commit procedural errors during the selection process when filling the vacancies under Vacancy Announcement 10213, the Arbitrator permitted the Agency "to abrogate the terms" of the parties' agreement and the Agency's Plan. Id.

The Union requests that, to the extent that the Arbitrator found that the Agency did not commit procedural violations in its nonselection of the grievant, the award be set aside. As a remedy, the Union requests that the grievant be retroactively promoted. Additionally, in the event that the Authority determines that the Union has not established that "but for" the Agency's procedural violations in the selection process the grievant would have been selected to fill a vacancy under the announcement, the Union asserts that the Agency's actions in this regard "should be found to support priority consideration for the [g]rievant in another competitive selection action." Id. at 11. Finally, in the event its exceptions are sustained by the Authority, the Union: (1) seeks modification of the award to the extent that it awards payment under the "'loser pays' provision" of the parties' agreement; and (2) requests attorney fees, if the grievant is awarded backpay. Id. at 12.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

A. Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a 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. Nuclear Regulatory Commission, Arlington, Texas and National Treasury Employees Union, 48 FLRA 466, 469-70 (1993) (U.S. Nuclear Regulatory Commission).

The Union claims that the Arbitrator erroneously found that no procedural violations occurred in the selection process pursuant to Vacancy Announcement 10213 and that there was no evidence that the GS-11 selectee was preselected. In making these claims the Union disputes the Arbitrator's evaluation of the evidence and testimony before him and argues that its views in this regard are "more than mere disagreement with the Arbitrator's viewpoints or assessment of the evidence." Exceptions at&n