51:1769(149)AR - - VA Regional Office, Boston, MA and AFGE, Local 2772 // [ Veterans Affairs ] - - 1996 FLRAdec AR - - v51 p1769
[ v51 p1769 ]
The decision of the Authority follows:
51 FLRA No. 149
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 31, 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 Lynn Freedman 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 sustained a grievance claiming that the Agency violated a provision of the parties' agreement when an evaluation panel improperly referred 12 candidates on 2 best qualified lists for consideration to the appointing official. For the following reasons, we conclude that the award is deficient under section 7122(a)(1) of the Statute and, accordingly, must be modified.
II. Background and Arbitrator's Award
When 17 candidates applied for 2 vacancies at the GS 11/12 level, the Agency convened a panel to evaluate and rank the candidates. After ranking the candidates from 1 to 17 on a master list, the panel ultimately referred 2 lists of candidates to the appointing official, one composed of 6 candidates for the GS-12 level, and another composed of 6 candidates for the GS-11 level. The appointing official selected one GS-12 and one GS-11 candidate, who had been ranked eighth and twelfth, respectively, on the master list. The Union then filed a grievance on behalf of the two top ranked candidates claiming that, under Article 34, Section 13.A of the parties' agreement, no more than a total of seven candidates should have been referred for the two vacancies.(1)
When the grievance remained unresolved, it was submitted to arbitration. The Arbitrator framed the issue as follows:
Did the [Agency] violate the Collective Bargaining Agreement and other pertinent documents by the manner in which [it] referred the candidates' eligibility list to the appointing administrator? If so, what shall the remedy be?
Award at 2.
The Arbitrator determined that, under Article 34, Section 13.A.2 of the parties' agreement, only the six highest ranking candidates should have been included in the best qualified list. The Arbitrator rejected the Agency's argument that the Agency's Station Merit Promotion Plan (the Plan), Section XVI.D, which permits the referral of two or more lists, governed this case.(2) The Arbitrator stated that Section XVI.D of the Plan was in conflict with Article 34 of the parties' agreement, which called for only one list, and that, in such cases of conflict, the parties' agreement governs.(3) The Arbitrator found that there was no consistent past practice regarding use of multiple lists because only 22 of the 64 multiple-grade level postings had more than 1 list.
The Arbitrator sustained the grievance and, as a remedy, ordered that the original best qualified list of six candidates be presented to the appointing official. The Arbitrator also stated:
After [the appointing official] ha[s] made one appointment from the list, another listing, that of the candidate ranked #7 is to be added and then the official shall make his second appointment.
Award at 6.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that the Arbitrator misinterpreted the parties' agreement in three respects. First, the Agency claims that the Arbitrator incorrectly stated that Article 34 calls for only "one list" of best qualified candidates. The Agency argues that the word "list" is used in the singular form in Article 34 because it is used in connection with "only one position[,]" as opposed to a number of actual vacancies under that position. Exceptions at 6 (emphasis in original). Second, the Agency objects to the Arbitrator's statement that there is a conflict between the Plan and the parties' agreement. The Agency argues that, because Article 34 "does not state any objection to [the use of] multiple lists," there is no conflict between Article 34 and Section XVI.D of the Plan, which permits such use. Id. at 7. Third, the Agency disagrees with the Arbitrator's apparent conclusion that "too many candidates," as set forth in Article 34, Section 13.A.2, means more than six. Id. According to the Agency, the words "too many candidates" are not defined anywhere in the agreement, and could, depending on where a "meaningful break falls in a list," include more than six, and even as many as nine candidates. Id.
The Agency also claims that the award is "totally unsupported by the evidence." Id. at 5. In this connection, the Agency claims that the Arbitrator erred in concluding that, because 32 multiple-grade level postings did not have 2 lists, there was no established past practice to use more than 1 list for multiple-grade postings. The Agency maintains that the 32 postings did not have 2 best qualified lists, because in those cases, there were no qualified candidates at more than 1 grade level.
In addition, the Agency claims that the award "deprives management of its statutory rights under 5 U.S.C. [§] 7106 in that it prevents the Agency from employing two lists of candidates" for two positions. Id. at 4. The Agency quotes, in this regard, its right, under section 7106(a)(2)(C) of the Statute, to make selections for positions, offering as explanation the claim that it followed a procedure outlined in the Agency's Personnel Manual.(4) With regard to the remedy, the Agency argues that, by ordering the Agency to select from the original best qualified list, the Agency is denied its right, under section 7106(a)(2)(C)(ii), to select from any other appropriate source because it cannot reject the entire group of original candidates, re-post the vacancy and reconvene the ranking panels.
B. Union's Opposition
The Union claims that the award does not deprive the Agency of its right to make selections under section 7106(a)(2)(C) of the Statute because the award does not preclude management from using two lists, provided that such lists comply with the contractual limit of six candidates for one vacancy, and seven candidates for two. In addition, the Union contends that the remedy ordered by the Arbitrator does not preclude the Agency from rejecting the entire group of candidates and moving to alternate sources. The Union asserts that the award is "well supported by the evidence," and that the Arbitrator's conclusion that "too many" meant "more than 6" was a reasonable inference for the Arbitrator to draw in rendering an interpretation of Article 34, Section 13.A.2. Opposition at 1-2.
IV. Analysis and Conclusions
A. The Award Draws Its Essence from the Agreement
The Agency has not demonstrated that the award is deficient. The Arbitrator rejected the Agency's contention that Article 34 permits the panel to refer two best qualified lists, finding that, under Article 34, Section 13.A.2, the "six highest ranking candidates are the best qualified list and as such are referred for consideration." Award at 5. The Arbitrator also found that, because Article 34 "does not have language dealing with two or more certified lists for multiple grade vacancies," the Agency regulation, which calls for more than one such list, conflicts with Article 34. Nothing in the plain wording of the parties' agreement or the Agency's argument demonstrates that the Arbitrator's conclusions are implausible, irrational, or unconnected to the wording and purpose of the agreement. Accordingly, the Agency's contention that the award fails to draw its essence from the agreement does not establish that the award is deficient. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990).
B. The Arbitrator Did Not Err in His Evaluation of the Evidence
The Agency claims that the Arbitrator failed to properly evaluate the evidence. However, disagreement with an arbitrator's evaluation of the evidence and conclusions based thereon provides no basis for finding an award deficient. See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995). Accordingly, the Agency's exception disputing the Arbitrator's evaluation of the evidence and conclusions based thereon fails to establish that the award is deficient.
C. The Award is Contrary to Section 7106(a)(2)(C) of the Statute
The Agency has not explained how or why the portion of the Arbitrator's award that interprets and applies Article 34 to require the Agency to use one list of best qualified candidates violates the Agency's right to make selections under section 7106(a)(2)(C)(i) of the Statute. Nor has the Agency cited any relevant authority, and none is apparent to us, in support of its contention that the use of one list, as opposed to two or more, interferes with that right. Where there is no explanation supporting an exception that an award is contrary to law, and none is apparent to the Authority, the Authority will deny the exception. E.g., American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 399 (1995).
With regard to the remedy ordered by the Arbitrator, the Authority has long held that, where an arbitrator finds that a selection process did not conform with applicable requirements, the arbitrator may order the selection rerun or reconstructed as corrective action. See Pennsylvania National Guard and Association of Civilian Technicians and Pennsylvania National Guard and Association of Civilian Technicians, Pennsylvania State Council, 35 FLRA 478, 490 (1990); Local R-1-185, National Association of Government Employees and The Adjutant General of the State of Connecticut, 25 FLRA 509, 511 (1987) (The Adjutant General). However, the Authority has found that an award directing an agency to select from among a specified group of candidates is deficient, under section 7106(a)(2)(C), as denying the agency's right to select from any other appropriate source. See, for example, Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 32 FLRA 997 (1988) (award requiring agency to select one of two grievants found to violate agency's right to select from any appropriate source); The Adjutant General, 25 FLRA at 512 (award requiring a selection from among the best qualified candidates who had originally applied found to violate the agency's right to select from any appropriate source).
In this case, the Arbitrator denied the Union's request that he order the Agency to convene a new panel, stating that "the original panel had provided a proper best qualified list of the six highest ranking candidates." Award at 6. The Arbitrator directed that the original list be "presented to the appointing official" and that "[a]fter he had made one appointment from the list, another listing . . . is to be added and then the official shall make his second appointment." Id. By directing the Agency to select from among the best qualified list originally compiled by the panel, the award precludes the Agency from rejecting that list and either rerunning the action or selecting from another appropriate source. In view of the Arbitrator's unambiguous order that the Agency select from the original list, we are not persuaded by the Union's argument that the Agency's right to reject the original list and select from another source is implicit in the remedy. As the Arbitrator expressly directed the Agency to select from a specified group of candidates, the remedy precludes the Agency from selecting from any other appropriate source and is, therefore, contrary to section 7106(a)(2)(C) of the Statute. Accordingly, we will modify the award to cure this deficiency.(5)
The award is modified to delete that part of the award ordering the original best qualified list to be presented to the appointing official and for the official to make his selections from that list. The following is substituted in lieu thereof:
The Agency shall either rerun or reconstruct the selection action in conformance with Article 34 of the parties' agreement, as interpreted in the award.
The remaining exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 34, Section 13 of the parties' agreement provides in pertinent part:
Section 13 - Determining the Best Qualified List for Referral
A. First Area of Promotion Consideration.
1. The evaluation panel will review the listing of ranked promotion candidates to determine whether a meaningful break is present. The meaningful break is where:
a. The lowest ranking candidate above the break should be able to perform the job with substantially equal success as all candidates with higher scores, and
b. The highest ranking candidate below the break should not be able to perform with substantially equal success as those above the break.
2. Promotion candidates above the break will be placed on the best qualified list for referral. If there is no break and/or there are too many candidates above the break, the six (6) highest ranking candidates will constitute the best qualified list and be referred in order of their entry on duty date at the facility.
Attachment to Agency's Exceptions at Joint-1.
2. Section XVI.D of the Plan states that:
When a position is announced at multiple-grade levels, a best-qualified group at each grade level, if available, will be referred for consideration on separate certificates.
Attachment to the Agency's Exceptions at M-6.
3. The Arbitrator cited Article 3, Section 2 of the parties' agreement, which states, in relevant part, that
Where any Agency regulation conflicts with this Agreement and/or a Supplemental Agreement, the Agreement shall govern.
Attachment to the Agency's Exceptions at Joint-1
4. The Agency cites Veterans Administration Personnel Manual, MP-5, Part I, Chapter 335, c.11.a.(3), which provides that:
When a position is announced at multiple grade levels, a best qualified group