50:0088(17)AR - - NLRB and NLRB Professional Association - - 1995 FLRAdec AR - - v50 p88
[ v50 p88 ]
The decision of the Authority follows:
50 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD
January 5, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert J. Ables 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator determined that the Agency's manner of filling a vacant position violated the parties' collective bargaining agreement. To remedy the violation, the Arbitrator ordered the Agency to take certain actions, including removing the selectee from the position.
For the following reasons, we conclude that a portion of the award is moot and a portion of the award is deficient under section 7122(a) of the Statute. The Agency's exceptions provide no basis for finding the remainder of the award deficient.
II. Background and Arbitrator's Award
The Union filed a grievance on behalf of unsuccessful applicants for a management position. When the grievance was not resolved, it was referred to the Arbitrator, who framed the issue as follows:
[W]hether the employer violated [the collective bargaining] agreement . . . by manipulating applicable laws, regulations and an existing side agreement between the parties . . . to steer a career job to [the selectee].
Award at 1-2.
The Arbitrator determined that, even though the disputed position was not in the bargaining unit, Article 14 of the parties' agreement applied to the process by which the position was filled because the Agency chose to apply that article.(2) The Arbitrator found that the grievants were within the second area of consideration under Article 14 and that the selectee was in the third area. In the Arbitrator's view, the selecting official violated Article 14 "in by-passing . . . candidates in the areas of consideration greater than [the selectee], each of whom he judged to be capable of performing the duties of the job." Id. at 25.
The Arbitrator directed that the selectee be removed from the disputed position no later than 45 days from the date of the award, and that the position be readvertised no later than the date it became vacant. The Arbitrator also directed that the Agency designate a different official to make the selection, that the Agency apply Article 14 of the agreement to the selection action, and that the selecting official interview "best (or well) qualified candidates." Id. at 27.(3) The Arbitrator further directed the Agency to place the individual originally selected in the third area of consideration.
A. Agency's Contentions
The Agency asserts that the Arbitrator's finding that the Agency elected to apply the parties' contractual procedures to the disputed action is a nonfact because, according to the Agency, the evidence established that the parties intended to use different procedures in filling the position in question. In addition, according to the Agency, the Arbitrator's conclusions regarding the placement of the selectee and certain of the grievants in various areas of consideration are based on nonfacts.
The Agency also contends that, in six respects, the award conflicts with law. First, noting that arbitrators may not make either bargaining unit or position classification determinations, the Agency argues that the Arbitrator's decision that the disputed vacancy was subject to the parties' agreement constituted one or the other such determination. Second, the Agency argues that the award "abrogates" its right under section 7106(a)(2)(C)(ii) of the Statute to make selections by preventing selection of the selectee, who was in the third area of consideration, when there were candidates in the second area. Exceptions at 7. Third, the Agency asserts that the award prevents it from exercising its "right to decide not to fill a position . . . ." Id. at 14. Fourth, the Agency contends that the part of the award directing the selectee's removal from the position also is inconsistent with its right to select. Fifth, the Agency asserts that, by requiring interviews of candidates, the award violates unspecified rights under section 7106(a)(2)(A) and (B) to "unilaterally determine whether there will be any interviews." Id. at 24. Finally, the Agency maintains that, by requiring the Agency to designate a different selecting official, the award also violates unspecified rights under section 7106(a)(2)(A) and (B) of the Statute.
Further, the Agency argues that, in barring the selecting official from participating in the rerun action and requiring interviews with certain candidates, the Arbitrator exceeded his authority. Finally, the Agency contends generally that the award fails to draw its essence from the parties' collective bargaining agreement and specifically that the Arbitrator's conclusions regarding the placement of the selectee and certain grievants in areas of consideration fail to draw their essence from the agreement.
B. Union's Opposition
The Union argues that the award is not deficient because, under Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), the award constitutes enforcement of a contractual provision which does not abrogate the Agency's right to select under section 7106(a)(2)(C) of the Statute. Further, the Union claims that the Arbitrator's interpretation of the contractual provision in question is "plausible" and that the Agency's contentions constitute nothing more than disagreement with that interpretation. Opposition at 6. The Union also contends that the Arbitrator did not exceed his authority by directing the Agency to vacate the position in question and rerun the selection action. Finally, the Union argues that there is no basis in the record to support the Agency's claim that the Arbitrator made either a unit determination or a classification determination. According to the Union, the Agency's arguments are mere attempts to relitigate the facts and to challenge the Arbitrator's evaluation of the evidence.
IV. Analysis and Conclusions
It is well settled that, to establish that an award is based on a nonfact, a party must show that the award is based on a clearly erroneous fact, but for which the arbitrator would have reached a different result. See, for example, U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). The Agency has not established that the Arbitrator's finding that Article 14 of the parties' agreement applied to the disputed promotion action is clearly erroneous and, as such, has not demonstrated that the award is deficient.(4) See id. at 594. Furthermore, as the Arbitrator's conclusions regarding the placement of the selectee and certain grievants in areas of consideration are based on his interpretation of the agreement, the conclusions are not facts that can be challenged as nonfacts. See, for example, U.S. Department of Housing and Urban Development, Denver Regional Office, Denver, Colorado and American Federation of Government Employees, Local 3972, 49 FLRA 1217, 1222 (1994). Accordingly, we deny this exception.
The Arbitrator stated that the Agency's decision to fill the disputed position by using the parties' contractual procedures "need not be seen as changing the formal designation of the job; it did however change the means by which to determine how the person to fill it was to be selected, that is, the selection was to be in accordance with merit principles, with areas of consideration." Award at 23 (footnote omitted). Consistent with this statement, and based on our reading of the award as whole, we reject the Agency's contention that the award conflicts with law because the Arbitrator made either a position classification decision or a bargaining unit determination.
Furthermore, in this connection, we reject the Agency's assertion that the award abrogates its right to select by barring selection of the selectee. The award neither precludes the selection of any particular individual nor requires that any particular candidate be chosen.
We also reject the Agency's construction of the award as interfering with its right under section 7106(a)(2)(C) of the Statute to decide not to fill the position. We construe the award as not requiring the Agency to rerun the selection action if it decides not to fill the position. We conclude, therefore, that the Agency has not shown that the award is deficient on this basis. See, for example, U.S. Department of the Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey and National Federation of Federal Employees, Local 1437, 48 FLRA 873, 882-83 (1993).
Since the selectee voluntarily terminated her employment with the Agency, the portion of the award requiring the Agency to remove the selectee from the position is moot.(5) Accordingly, we will dismiss the Agency's exception to this portion of the award. See Office of Hearings and Appeals, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 17 FLRA 9, 10 (1985).
The Agency's argument regarding the portion of the award requiring it to conduct interviews also does not demonstrate that the award is deficient. The Agency does not specify how its management rights are violated by a requirement that, if it chooses to rerun the selection action, it interview certain candidates.
Finally, we resolve the Agency's exception to the portion of the award which prevents the selecting official from participating in the rerun of the selection action by determining whether it directly interferes with a management right under section 7106(a) of the Statute. U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and International Federation of Professional and Technical Employees, Planners, Estimators, Progressmen and Schedulers Union, Local 2, 49 FLRA 1363, 1367 (1994) (Philadelphia Naval Shipyard).(6) In this regard, an agency's right to assign work under section 7106(a)(2)(B) includes the right to determine the employees to whom work will be assigned. Id. at 1368. Awards directly interfering with that right are deficient as contrary to law. Id. In barring the Agency from designating the previous selecting official from participating in a rerun action, the award prevents the Agency from determining what duties will be assigned to a particular individual and, thereby, interferes with the Agency's right to assign work. Compare National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 779 (1992) (proposal barring agency from assigning certain officials to serve on ranking panels directly interfered with right to assign work) and National Labor Relations Board Union and National Labor Relations Board, 42 FLRA 1305, 1308-09 (1991), enforcement denied as to other matters sub nom. National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) (proposal preventing agency from designating certain officials to serve as reviewing officials for performance appraisal purposes directly interfered with right to assign work). As such, this portion of the award is deficient because it is contrary to law, and we modify the award to delete it.
C. Arbitrator's Authority
Arbitrators have great latitude to fashion remedies. See, for example