51:0580(51)AR - - NAGE Local R4-6 and Army Transportation Center, Fort Eustis, Virginia - - 1995 FLRAdec AR - - v51 p580
[ v51 p580 ]
The decision of the Authority follows:
51 FLRA No. 51
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
ARMY TRANSPORTATION CENTER
FORT EUSTIS, VIRGINIA
November 30, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Irving N. Tranen 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 Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator denied a grievance contesting the Agency's failure to promote the grievant. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.
II. Arbitrator's Award
The grievant, an employee who had been "bumped" from the position of Supervisor, Television Production Specialist as a result of a reduction-in-force (RIF), sought and was granted priority consideration for his former position when it subsequently became vacant. The selecting official rejected the grievant stating: "[I]ndividual lacks sufficient technical knowledge." Award at 2. Thereafter, the grievant applied for the vacancy competitively and was one of the three best qualified candidates referred to the selecting official. After the grievant was not selected competitively, he filed a grievance contending that he was wrongfully denied priority consideration for the position. The grievance was submitted to arbitration on the following issue, as set forth by the Arbitrator:
Did the Agency violate [the parties' collective bargaining agreement] in not promoting the Grievant to the temporary position of Supervisor, Television Production Specialist? If so, what shall the remedy be?
Id. at 3.
The Arbitrator found that the issue before him involved interpretation of "priority promotion consideration," within the meaning of an internal Agency regulation.(1) The Arbitrator found that this priority consideration required that a selecting official consider and evaluate an applicant's qualifications before those of other candidates.(2) The Arbitrator also found that the selecting official had sufficient basis on which to question the grievant's technical knowledge of equipment that had been acquired since the grievant had been bumped from his position. Moreover, the Arbitrator determined that the selecting official's testimony at the arbitration hearing that there were better candidates available at the time he refused to select the grievant noncompetitively was not the primary reason for the nonselection. The Arbitrator concluded that the grievant had been given the priority consideration to which he was due, and he denied the grievance.(3)
III. Positions of the Parties
The Union claims that the award is contrary to law, rule and regulation. Relying on Perry, the Union argues that the Arbitrator erred in concluding that the grievant was given bona fide priority consideration. The Union contends that the selecting official's testimony regarding the availability of other candidates demonstrates that the selecting official did not evaluate the grievant's qualifications prior to evaluating the qualifications of other candidates.
The Agency argues that the Union has not demonstrated that the Arbitrator's award is inconsistent with any law, rule or regulation, including the court's decision in Perry. According to the Agency, the Union's exception either is based on a misinterpretation of the award or constitutes mere disagreement with the Arbitrator's evaluation of the evidence.
IV. Analysis and Conclusions
The Union does not dispute the Arbitrator's finding that, consistent with Perry, priority consideration requires a selecting official to consider an applicant's qualifications prior to evaluating the qualifications of other candidates. Rather, the Union disputes the Arbitrator's failure to find that the selecting official's testimony established that the grievant was not accorded priority consideration. However,the Union's disagreement with the Arbitrator's evaluation of the evidence, including testimony at the hearing, does not establish that the award is inconsistent with law. Accordingly, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
1. The Arbitrator referred to "Paragraph 3 and appendix B of the Peninsula Civilian Personnel Support Activity's . . . Internal Standard Operating Procedure," which, according to the Arbitrator, provides the following in pertinent part:
Under certain conditions, employees may be entitled to mandatory placement or priority consideration for placement in a position. Priority consideration means the employee is considered for a job
non-competitively, before other candidates.
Award at 6.
2. The Arbitrator relied on Perry v. Department of the Army, 992 F.2d 1575 (Fed. Cir. 1993) (Perry), which involved the enforcement of an Merit Systems Protection Board adverse action appeal settlement agreement under which an employee was to be accorded priority consideration. The court construed priority and bona fide consideration, within the meaning of the settlement agreement, as "consideration that precedes that of other candidates and that is 'real, actual, genuine, and not feigned.'" Id. at 1579 (citation omitted).
3. The Arbitrator also rejected the Union's claim that the selection panel used in the competitive process acted improperly. As the Union does not except to this portion of the award, it will not be discuss