52:0404(41)AR - - Panama Canal Commission and Maritime Metal Trades Council - - 1996 FLRAdec AR - - v52 p404

[ v52 p404 ]
The decision of the Authority follows:

52 FLRA No. 41












October 16, 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 John C. Shearer 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.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The Arbitrator resolved the following issue, as agreed to by the parties:

Did the [Agency] correctly apply the provisions of the Agreement and/or FPM Letter 338-11 to qualify and subsequently select [the selectee] for the position of Supervisory Training Instructor, NM-12/13 (Chief, Industrial Training Branch, Human Resources Development Staff)? In either case, what should the remedy be?

Award at 2. The Arbitrator concluded that "the weight of the evidence presented persuade[d] [him] that the [Agency] did not correctly apply the provisions of FPM Letter 338-11 to qualify and subsequently select [the selectee] for the position in question."(1) Id. at 7. In so concluding, the Arbitrator made the following findings that are disputed here.

1. The position description for the disputed vacancy was classified at Grade 13 until after the selectee, a Grade 12 employee, was reassigned to the position at the Grade 12 level. After the selectee's reassignment, the disputed position was reclassified at Grade 12/13. The Agency "offered no explanation" for this action, which "strongly suggest[ed] a manipulation so that the move would not appear to be a promotion." Id. at 3-4.

2. The Agency failed to "demonstrate the legitimacy of its substantial downgrading" of requirements in the Grade 13 position description for "extensive technical or trade knowledge, which [the selectee] admittedly lacked, but which at least some [g]rievants had." Id. at 4.

3. The Agency "violated proper procedure" by assigning a particular management official to evaluate the grievants and then, "as a member of the Appraisal Board, [to] review and approve his own evaluations [,]" functions that FPM Chapter 335, Appendix A "strongly implie[d]" should be separated.(2) Id. Although the Agency had a "legitimate reason" for the official to evaluate the grievants, the Agency "offered no rationale" for appointing the official to the Appraisal Board. Id. at 5.

4. Although the Appraisal Board was not required to personally interview the grievants, "interviews would have been useful in identifying supervisory or other relevant experience prior to employment by the [Agency] which may not have been evident from personnel records . . . ." Id.

5. The vacancy announcement for the disputed position contained the following "NOTE":

For actions other than a promotion, modified qualifications will be used to qualify applicants when their backgrounds include closely related experience that provides the skills necessary for successful performance.

Id. at 6. This statement did "not satisfy the clear requirement" of FPM Letter 338-11, Paragraph 4, that: "If a modified standard is used for a personnel action . . . the qualification requirements to be met must be identified in the vacancy announcement[]" because: (1) the vacancy announcement did not inform applicants where they could locate the modified qualifications; and (2) modified qualification standards did not exist until after the selectee was selected. Id. at 5, 6.

6. The Agency used "modified qualifications" to select the selectee before completing evaluation procedures for the grievants, for whom modified qualifications could not have been used. By using the modified qualifications in this way, the Agency "evidently determined, prior to the prescribed procedures, that no [g]rievant, or other applicant . . . would be selected." Id. at 6. The Agency's action "violated the requirement for competitive selection[,]" and "violated the spirit and the letter of FPM Letter 338-11." Id. at 7.

The Arbitrator concluded that, "[b]ut for" the Agency's violations, it "could not have selected [the selectee]," an individual who the Agency "acknowledge[d], was qualified only under the modified qualifications which it improperly invoked." Id. As his award, the Arbitrator sustained the grievance and "invalidated" the selection. Id. at 8. He ordered that the evaluation and selection process be rerun as of the date of the original vacancy announcement, using the original position description without modified qualifications, and that, if the selectee applies, then he should be evaluated without credit for time spent in the position.

III. Exceptions

A. Agency's Contentions

The Agency contends that each of the six numbered arbitral findings set forth above is "contrary to law and regulation . . . ." Exceptions at 1.

The Agency asserts that the first arbitral finding is contrary to Panama Canal Personnel Manual (PCPM) Chapter 335, Appendix A, A-1, (e)(6).(3) According to the Agency, the grade level of the position description was changed because of a lack of qualified candidates at the Grade 13 level. The Agency argues that the change had no impact on the selectee and, in fact, had a favorable impact on the grievants, who were qualified for the position only at the Grade 12 level. The Agency asserts that "[e]ven if the downgrade was error, and it was not, it was not harmful error." Id. at 2.

As for the second finding, the Agency claims that it did not "downgrade any of the requirements of the position." Id. at 5. According to the Agency, "[b]oth the selectee and the grievants were lacking in one or more of the requirements, but somebody had to be selected and, in the end, managerial experience prevailed over technical knowledge." Id.

In connection with the third finding, the Agency asserts that the "dual role" of the management official as a rating official and a member of the Appraisal Board did not violate applicable regulations, and neither helped nor harmed any of the candidates. Id. at 8. According to the Agency, the Arbitrator's finding to the contrary is unsupported.

The Agency asserts, in connection with the fourth finding, that personal interviews of applicants are not required by applicable regulations. The Agency claims that information that could have been obtained through such interviews was available elsewhere.

With regard to the fifth finding, the Agency states:

Regardless of whether the modified qualification authority is used or not, the same standard is used. The modified qualification authority merely permits the qualification of an applicant who does not meet all specialized experience requirements. No modified standard is required or even contemplated; accordingly, none was created or identified.

Id. at 10. The Agency claims that the relevant vacancy announcement informed applicants where to obtain information regarding qualification requirements, and that "[r]eferring the applicants to the qualification requirements rather than identifying them in the vacancy announcement would be a de minimis error, if error at all." Id.

As for the sixth finding, the Agency argues that its use of modified qualifications did not violate applicable regulations and did not affect the grievants because they qualified for the position without the use of modified qualifications. The Agency states that it contacted "the OPM Qualification Standards Branch and described the agency's use of the modified qualification requirements for this vacancy." Id. at 14 n.3. The Agency states that OPM "faxed back a handwritten response indicating the modified qualification standards were properly used." Id.

In addition to its exceptions to the six arbitral findings, the Agency contends that the award affects the exercise of its right to select under section 7106(a)(2)(C) of the Statute because "[t]he [A]rbitrator's ban of the modified qualification authority prohibits expansion of the area of consideration[.]" Id. at 14. The Agency argues that, "[i]n effect, the [A]rbitrator has prescribed the sources from which the selection is made . . . ." Id.

B. Union's Opposition

As a preliminary matter, the Union contends that the Agency's exceptions were untimely filed.

On the merits, the Union argues that the Agency has failed to demonstrate that the award violates law, rule, or regulation. In the Union's view, changing the grade of the position description, changing the position requirements, and failing to list modified qualifications requirements in the vacancy announcement were aimed at "predetermining the outcome of the selection process." Opposition at 8.

The Union asserts that testimony supports the Arbitrator's finding that the grievants were harmed by the dual role of a management official in rating the applicants and serving on the Appraisal Board, and that the Arbitrator's finding in this regard does not constitute a violation of law, rule, or regulation because the Arbitrator "pointed out the irregularities but no remedies were mandated." Id. at 13. Similarly, the Union asserts that the Arbitrator's finding regarding the Appraisal Board's failure to hold interviews did not violate law, rule, or regulation, and that the Arbitrator prescribed no remedy for this irregularity. The Union also argues that the Arbitrator did not commit reversible error when he determined that the Agency improperly invoked modified qualifications standards. With regard to the Agency's right to select from any other appropriate source under section 7106(a)(2)(C)(ii), the Union asserts that the award does not limit the area of consideration to be used in soliciting applicants for the vacancy.

IV. Analysis and Conclusions

A. The Agency's Exceptions Were Timely Filed

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

The Union's assertion that the Agency's exceptions were not timely filed fails to take into account that the award was served by mail and, as result, 5 days are added to the period that the exceptions would otherwise be due under section 2429.22 of the Authority's Regulations. E.g., U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 46 FLRA 878, 879-80 (1992). Calculated correctly, exceptions to the award were due no later than February 27, 1995, the date on which they were filed. Consequently, the exceptions were timely filed.

B. The Award Does Not Violate Law or Regulation

Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if, inter alia, it conflicts with law, a Government-wide, or a governing agency, regulation. E.g., U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA 1126, 1135 (1996). Examination of arbitration awards for consistency with law, rule, or regulation, requires the Authority to review de novo the questions of law raised by the award and the exceptions. E.g., id.; Social Security Administration and American Federation of Government Employees, Local 3342, 51 FLRA 1700, 1705 (1996). Generally, an agency's interpretation of its own regulation is controlling, unless it is clearly erroneous or inconsistent with the regulation's plain wording. FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1454 (D.C. Cir. 1989) cert. denied, 493 U.S. 1055 (1990).

As to the first disputed arbitral finding -- that lowering the vacancy's grade level strongly suggested that the selectee was preselected -- the regulation cited by the Agency, PCMP Chapter 335, Appendix A, defines "developmental positions." Even if the disputed vacancy is a developmental position, the Agency has not explained how the award, which neither prohibits nor requires the use of such positions, conflicts with the plain wording of the regulation, which does not speak to methods of selection. No such conflict is apparent from any reasonable construction of the regulation.

The Agency's claim that it did not lessen the technical requirements of the position evidences only disagreement with the Arbitrator's contrary second finding; the claim does not provide a basis for concluding that the finding is inconsistent with the applicable regulation. E.g., U.S. Small Business Administration, Charlotte District Office, Charlotte, North Carolina and American Federation of Government Employees, Local 3841, 49 FLRA 1656, 1659-60 (1994). The Agency also claims that management officials may properly participate in selection actions in the dual role of evaluator and appraisal board member. However, the Agency offers no citation or other authority for its argument that the Arbitrator's third finding -- that FPM Chapter 335, Appendix A "strongly implie[d]]" to the contrary -- is inconsistent with the regulation. Award at 4. In this regard, the Arbitrator stated that, by assigning the management official to act both as an evaluator and a participant on the Appraisal Board, the Agency "violated proper procedure." Id. However, when the statement is read in context, it is not an arbitral finding that the Agency violated FPM Chapter 335, Appendix A. Instead, we construe the statement as a reference to generally accepted principles of proper procedure. To read the statement as finding a violation of the regulation renders it inconsistent with the statement in the award that immediately follows it: that FPM Chapter 335, Appendix A merely implies (albeit strongly) that the Agency acted improperly.

With respect to the fourth finding, the Arbitrator specifically found that personal interviews were "not mandated," but that they "would have been useful in identifying supervisory or other relevant experience [acquired] prior to employment by the [Agency] which may not have been evident from the personnel records . . . ." Award at 5. The Agency's disagreement with the Arbitrator's finding of fact that interviews "would have been useful" does not demonstrate, and no other basis is apparent on which to conclude, that the award is deficient as inconsistent with law or regulation.

As to the fifth finding, there is no dispute that FPM Letter 338-11 requires the Agency to identify modified qualifications in a vacancy announcement. Although the Agency asserts that its reference to minimum qualifications standards satisfied this requirement, the Letter specifically provides that agencies may modify OPM's minimum qualification standards in certain circumstances, including reassignments. Thus, the plain language of the Letter indicates, contrary to the Agency's position, that modified qualification requirements and minimum qualification standards are not the same. As such, the Arbitrator's finding that the reference in the vacancy announcement to the minimum standards did not satisfy the requirement of the Letter is not inconsistent with the regulation.

The Agency appears to misconstrue the Arbitrator's sixth finding: that use of modified qualifications requirements prior to evaluating candidates eligible under unmodified requirements violated FPM Letter 338-11. The Arbitrator did not find that invocation of modified qualifications requirements precluded promotion of any of the grievants. Rather, his finding questions the timing of the use of such requirements and provides support for his conclusion that the action involved preselection. As such, the Agency's argument that the use of modified qualifications authority did not harm the grievants because "they did not need it[]" misses the point and does not demonstrate that the Arbitrator erred.

Finally, with respect to the Agency's argument regarding its right to make selections under section 7106(a)(2)(C) of the Statute, an award directing an agency to select from among a specified group of candidates is deficient under section 7106(a)(2)(C) because it denies management the right to select from any other appropriate source. E.g., U.S. Department of Veterans Affairs Regional Office, Boston, Massachusetts and American Federation of Government Employees, Local 2772, 51 FLRA 1769, 1774-75 (1996) (VA Regional Office). However, the award in this case does not require the Agency to select from among the grievants, or any other candidate identified in the rerun merit promotion action. The award requires only that the selection procedure be rerun "as of the date of the Vacancy Announcement, . . . using the original Position Description without any modified qualifications." Award at 8. The Authority has held that, where an arbitrator finds that a selection process did not conform to applicable requirements, the arbitrator may order that the selection be rerun or reconstructed as a corrective action. VA Regional Office, 51 FLRA at 1774. The award in this case is consistent with the Arbitrator's findings concerning the disputed elements of the selection process, and the award directs a reconstruction of what the Agency would have done had it acted properly.

In addition, the award does not prevent the Agency from using modified qualifications requirements and a revised position description if no candidate referred under unmodified requirements and the original position description is selected. Although it is not clear that using modified qualifications affects the area of consideration for a merit promotion action, even assuming that it does, the award would not prevent the Agency from using whatever area of consideration it desired in another selection action if no selection is made in the one required by the award.

In these circumstances, we conclude that the Agency has not established that the award is deficient under section 7106(a)(2)(C)(ii) of the Statute because of its effect on the Agency's right to select from any appropriate source. National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995). Moreover, the disputed arbitral findings are not inconsistent with law or regulation. Accordingly, we deny the Agency's exceptions.

V. Decision

The Agency's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. The Agency asserts, and the Union does not dispute, that rescission "of parts of the Federal Personnel Manual is irrelevant[,] inasmuch as the application of FPM Letter 338-11 to the [Agency] is based on its . . . adoption by the Panama Area Personnel Board[.]" Exceptions at 9 n.2. In these circumstances, requirements in the Letter are applicable to the parties in this case as a governing Agency regulation, and we will construe references to the FPM Letter as references to the Agency regulation.

2. The Arbitrator quoted the following portion of the cited FPM Chapter, which provides that an Appraisal Board "will evaluate all qualified candidates by using techniques such as":

(a) personal interview;

(b) recommendation of current supervisor . . . .

Award at 4.

3. This regulation provides that:

Developmental positions are positions in which employees are hired at a lower grade level than the target level, are given grade-building experience, and are promoted until they reach full performance level.

Exceptions, Exhibit B (emphasis in original).