51:1624(134)AR - - Air Force, San Antonio Air Logistics Center, Kelly AFB, TX & AFGE Local 1617 - - 1996 FLRAdec AR - - v51 p1624
[ v51 p1624 ]
The decision of the Authority follows:
51 FLRA No. 134
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 25, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Diane Dunham Massey 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 did not file an opposition to the Union's exceptions.
The Arbitrator sustained the Union's grievance, in part, and held that the Agency violated applicable Agency regulations in not selecting the grievant for a vacant position. As a remedy, the Arbitrator ordered the Agency to reconstruct the selection process and, if the Agency determined that but for its improper action the grievant would have been selected to fill that vacancy or one of two other vacancies, award the grievant priority consideration for the next applicable vacancy.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a GS-9 Contract Specialist, applied and was nonselected for two Organizational Development Consultant (ODC) GS-9 positions. The Union filed a grievance over the grievant's nonselection "alleging non-compliance with the Master Labor Agreement (MLA), regulations and statutes." Award at 3. The Union also alleged that the grievant was discriminated against on the basis of his race and sex. As a remedy, the Union requested that the grievant be promoted to the GS-11 level with backpay and given a choice of remaining in his present unit or being assigned to one of two other units. The grievance was unresolved and subsequently submitted to arbitration.
The Arbitrator framed the issue as
[Whether] the Agency violated the Master Labor Agreement or any law, rule or regulation, when it [nonselected] the Grievant . . . for the position of [ODC] GS50301-9 Target 11 . . . ? If so, what is the appropriate remedy?
Id. at 2.
In relevant part, the Arbitrator determined, with respect to one of the ODC vacancies, that the Agency violated Agency regulation AFR 40-335 18(a) in nonselecting the grievant.(1) AFR 40-335 18, entitled "Promotion Evaluation Pattern" (PEP), states that "[a] PEP is an objective statement of position requirements against which employees are evaluated." The Arbitrator held that the selectee did not possess the minimum qualifications for the GS-9 ODC PEP and concluded that such a violation constituted a "significant and harmful error" and harmed the selection process by permitting a nonqualified employee to be placed in one of the disputed ODC positions. Award at 27. However, the Arbitrator stated that, based on the evidence submitted, she could not conclude that the grievant, rather than one other qualified applicant (the QA), would have been selected for the improperly filled position.
Noting that the Agency had filled a number of GS-7 and GS-9 ODC positions subsequent to the filing of the instant grievance, and that the QA had been selected by the Agency to fill one of those subsequent vacancies, the Arbitrator ordered, as a remedy, that the Agency reconstruct the selection processes that involved the improperly filled position and two other ODC vacancies. First, the Arbitrator ordered the Agency to determine if either the grievant or the QA would have been selected for the improperly filled position. Next, if the Agency determined that the QA would have been selected for the improperly filled position, the Arbitrator ordered the Agency to reconstruct the selection process for the two other ODC vacancies to determine if the grievant would have been selected to fill either one of those positions.(2) Finally, the Arbitrator ordered the Agency to give the grievant backpay and priority consideration for the next GS-7 or GS-9 ODC vacancy, if the Agency determined that the grievant would have been selected to fill one of the ODC vacancies.(3) The Arbitrator also indicated that the parties were free "to fashion a different, but mutually acceptable remedy." Id. at 32.
III. Union's Exceptions
The Union contends that the award is contrary to law, rule, and regulation. The Union disputes the conclusions the Arbitrator reached concerning the weight accorded to PEP evaluation factors in her evaluation of the grievant. The Union also disagrees with the Arbitrator's determination that she was unable to conclude that the grievant was the best qualified candidate for the improperly filled position and would have been selected to fill the ODC position but for the Agency's improper actions. Further, the Union claims that because the Arbitrator found that the successful candidate was illegally selected for the position, the improperly filled position "must be involved" in the Arbitrator's award. Exceptions at 2.
The Union also contends that the Arbitrator violated the parties' MLA. In this regard, the Union claims that the Arbitrator violated Article 12, section 12.09.c of the parties' MLA when she discounted the grievant's background and based her determinations on the selecting official's and her own "gut feelings" in evaluating whether the grievant should have been selected for the position in question. Id. at 2 (referencing Award at 21), 4.(4)
Further, the Union contends that there is "no tangible award" and at best the award is ambiguous. Id. at 2. The Union claims that it is impossible to rerun the certificate in question and notes that, while the Arbitrator made a finding of harmful error, the Agency is permitted to conduct further evaluation of the grievant's suitability for an ODC position "to determine if [he] should be the recipient of any award." Id.
Additionally, the Union contends that the award is not based on submitted fact but on personal opinion. Further, the Union contends that because the Arbitrator allowed her personal opinion to cloud her decision and judgment she did not "operate in full capacity as an [a]rbitrator[.]" Id. at 2. In this regard, the Union asserts that the Arbitrator did not address any of the violations it alleged in its brief that the selecting official committed. Further, the Union claims that the Arbitrator "devised [her] remedy as a result of aligning herself with [the selecting official]" and that the remedy is not "designed to make [the grievant] whole, but to further degrade [the grievant]." Id. at 1-2. The Union asserts that the Arbitrator fashioned the remedy based on "the knowledge" that the selecting official would not select the grievant "under any circumstances[.]" Id. at 2.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law, Rule, or Regulation
In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority must review the questions of law raised by an arbitrator's award or a party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).
1. The Award Is Not Contrary to Agency Regulations
The Arbitrator concluded that the evidence did not establish that the grievant would have been selected for the improperly filled position. The Union asserts that applicable regulations required the Arbitrator to apply different weights to various PEP factors. An examination of the regulations cited by the Union does not establish that the Arbitrator was required to reach a different conclusion. Consequently, the Union has not established that this aspect of the award is inconsistent with Agency regulations. E.g., American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 127 (1995).
2. The Award Is Not Otherwise Contrary to Law, Rule, or Regulation
The Union contends that "[r]egulation" requires that the position the "illegally selected" employee is holding "be involved" in the award. Exceptions at 2. The Union has not explained how the position must be involved nor has it supported its contention or cited to any regulation with which the award conflicts. Further, the Union has not supported its additional assertions that the award is otherwise contrary to any law, rule, or regulation. An unsupported contention that an award is contrary to law, rule, or regulation provides no basis for finding an award deficient. E.g., American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 399 (1995). See also American Federation of Government Employees, AFL-CIO, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 48 FLRA 336, 339 (1993). Therefore, the Union has not demonstrated that the award is otherwise contrary to law, rule, or regulation.
Consequently, we find that the Union has not demonstrated that the award is deficient as contrary to law, rule, or regulation and deny the Union's exception.
B. The Award Does Not Fail to Draw its Essence from the Parties' MLA
The Union claims that the Arbitrator violated the parties' MLA by discounting the grievant's background and basing her determinations on the selecting official's and her own "gut feelings." See Exceptions at 2, 4. We construe the Union's assertions as a contention that the award does not draw its essence from the parties' MLA. To demonstrate that an award is deficient because it fails to draw its essence from the parties' agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
The Union fails to satisfy any of these tests. The Union has not shown that the Arbitrator's determination with respect to whether the grievant was better qualified than the other applicants for the ODC positions results from an irrational or implausible interpretation of the MLA. Further, the Arbitrator did not conclude, as asserted by the Union, that the selecting official made her determination as to the best-qualified candidate for the disputed ODC position on her "gut feelings." Exceptions at 2, 4; see Award at 21. Rather, in discussing whether or not the selecting official based her selections on favoritism or racism in violation of the MLA, the Arbitrator found that evidence did not support a conclusion that a person's race, gender, or national origin played a part in the selection process. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the parties' MLA and we will deny this exception.
C. The Award Is Not Ambiguous
The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. E.g., American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 49 FLRA 1508, 1509 (1994). The Union claims that there is "no tangible award" because it is impossible to rerun the certificate involved in the instant case. Exceptions at 2.
We construe the Union's assertion as a contention that the award is ambiguous because the remedy in this case cannot be implemented. The Union does not show that implementation of the award is impossible. The Arbitrator's remedy requires the Agency to reconstruct the selection processes for three ODC vacancies and award the grievant backpay, as well as priority consideration for the next GS-7 or GS-9 ODC vacancy, if the Agency determines that the grievant would have been selected for one of the positions.(5) The award also permits the parties to fashion a different, but mutually acceptable remedy. The Union offers no support for its contention that the Agency would not fairly consider the grievant during the reconstruction selection process. Further, to the extent that the Union is asserting that the ordered reconstructions cannot be accomplished, the Union has not provided any support for such an assertion. Consequently, we find that the Union has failed to show that the award is deficient because it is ambiguous so as to make implementation of the award impossible.
D. The Award Is Not Based on a Nonfact
We construe the Union's assertion that the award is not based on submitted facts as an contention that the award is based on a nonfact. In order 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. E.g., 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) (Lowry AFB). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).
The Union does not dispute any of the Arbitrator's findings of fact. Rather, the Union claims that the Arbitrator based her award on personal opinion. In this regard, the Arbitrator's determinations as to whether the grievant would have been selected for the improperly filled position and her remedy are not facts that can be challenged as nonfacts. These conclusions are a result of her evaluation of the evidence presented and her application of the standards set forth in applicable Agency regulations to the facts and circumstances of this case, but are not themselves facts. See, e.g., National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Medical Center, Newington, Connecticut, 50 FLRA 236, 239 (1995) (VAMC, Newington). Moreover, even if those conclusions are facts, the Union has not established that they are clearly erroneous and, as such, has not demonstrated that the award is deficient. See Lowry AFB, 48 FLRA at 594. Consequently we will deny this exception.
E. The Arbitrator Was Not Biased
We construe the Union's assertions that the Arbitrator allowed her personal opinion to cloud her judgment, aligned herself with the selecting official and refused to make findings against the selecting official, and fashioned her remedy based on partiality as contentions that the Arbitrator was biased. To demonstrate that an award is deficient because of bias on the part of an arbitrator, a party must show, for example, that the award was procured by improper means, that there was partiality or corruption on the arbitrator's part, or that the arbitrator engaged in misconduct that prejudiced a party's rights. Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981). See also VAMC, Newington, 50 FLRA at 238. The Union offers no substantiation for its conclusory allegations regarding bias. As such, the Union's argument provides no basis for finding the award deficient. See id.
As to the Union's contention that the Arbitrator has not awarded a make-whole remedy, the Authority has consistently ruled that arbitrators have great latitude in fashioning remedies. E.g., National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 94 (1995). Moreover, the Authority has consistently denied exceptions that constitute an attempt to substitute another remedy for that formulated by the arbitrator. E.g., U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991) and cases cited therein. We find that the Union's contention constitutes an attempt to substitute another remedy for that formulated by the Arbitrator. Therefore, we find that the Union's contention provides no basis for finding the award deficient.
Additionally, the Union's assertion that the Arbitrator improperly failed to consider and address certain contentions it made in its brief does not provide a basis for finding the award deficient. The fact that an award does not mention an issue does not establish that an award is deficient or that the arbitrator did not address the issue.(6) E.g., Police Association of the District of Columbia and U.S. Department of the Interior, National Park Service, United States Park Police, 49 FLRA 1568, 1571 (1994). The Union has failed to demonstrate that the Arbitrator improperly failed to consider certain contentions it made in its brief.
Consequently, we find that the Union has not shown that the Arbitrator's award is deficient because of bias on the part of the Arbitrator and we will deny this exception.
The Union's exceptions are denied.
AFR 40-335, 18. provides as follows:
a. Promotion Evaluation Pattern (PEP). A PEP is an objective statement of position requirements against which employees are evaluated. The PEP is developed as a result of a job analysis (see b below) of the position(s) to be filled whereby essential [knowledge, skills, and abilities (KSAs)] are identified. The pattern may apply to a group of positions organized by occupation and grade or to one position. It states the requirements for basic eligibility in the screening process, for evaluations based on applicable ranking factors, and for final relative ranking. The PEP must show as a minimum the following:
 The position(s) covered.
(2) Minimum qualification standards.
(3) Other selective placement factors.
(4) Applicable ranking factors.
b. Job Analysis. A selection-oriented job analysis identifies the [KSAs] and personal characteristics that are the best predictors of future job success. The process results in documentation of a relationship between job content and the KSAs and personal characteristics identified.
(If blank, the decision does not have footnotes.)
1. The full text of this regulation is set forth in the Appendix to this decision.
2. The Arbitrator instructed the Agency not to include the QA in this reconstruction because he would not have been an applicant if he had been selected to fill the improperly filled position. Under these circumstances, the Arbitrator stated that "it appears that the grievant should have been the successful applicant" for the ODC vacancy that the QA was selected to fill. Award at 32.
3. The Arbitrator stated that the evidence "appears to" indicate that the grievant is not entitled to backpay because he is the incumbent of a GS-9 position. Id.
4. The portion of Article 12, Section 12.09.c upon which the Union relies provides that "[e]mployees will not be screened, evaluated, or nonselected on the basis of factors which are not job-related." Award at 6.
5. In the absence of an exception to the Arbitrator's discussion and award of backpay, we do not address whether the grievant could properly have been awarded backpay, in the circumstances of this case, under the Ba