52:0739(73)AR - - AFGE, Local 2142 and Corpus Christi Army Depot, Corpus Christi, TX - - 1996 FLRAdec AR - - v52 p739
[ v52 p739 ]
The decision of the Authority follows:
52 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
December 23, 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 J. D. Dunn 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 exceptions.
The Arbitrator denied a grievance by the Union alleging that the Agency improperly applied the Office of Personnel Management (OPM) rules and regulations set forth in the OPM Operating Manual for Qualification Standards for General Schedule Positions (Manual). The Arbitrator upheld the Agency's determination, based on the Manual, that the grievant was ineligible for a GS-13 position because he did not meet the minimum specialized experience qualifications. For the following reasons, we conclude that the Arbitrator's award is not deficient. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency published a vacancy announcement for an Aerospace Engineer, GS-0861-13, position. The announcement stated that one of the qualifications required for the position was at least 1 year of "specialized experience" equivalent to GS-12.(1) The announcement also stated that education would be substituted for experience in accordance with the Manual.
The grievant applied for the Aerospace Engineer position but was informed by a Personnel Staffing Specialist that his application would not be considered because he did "not meet the minimum qualification requirements for [the] position." Award at 3-4. Although the grievant had 20 months of experience at the GS-12 level, the specialist determined that only 10 months could be credited as specialized experience. According to the specialist, the remaining 10 months, in which the grievant was detailed to the U.S. Army Civilian Long Term Training at Texas A&M University in the Doctoral Engineering Program, could not be credited as specialized experience in accordance with the Manual because it constituted educational experience.
The Union grieved the Agency's failure to credit the grievant's 10-month detail as specialized experience when determining his eligibility for the GS-13 position. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as:
Whether or not the ten (10) months of long term training that [the grievant] was on at Texas A&M University qualifies as "specialized experience" for time-in-grade purposes at the GS-12 level.
Award at 2.
The Arbitrator rejected the Union's contention that the 10-month detail should have been credited as specialized experience. The Arbitrator based his decision on a portion of the Manual stating that the minimum qualification for a GS-12 and above position is at least 1 year of specialized experience, which must be met without including any educational experience. According to the Arbitrator, education and experience can be combined to satisfy the 1-year specialized experience requirement only where the Manual provides that both specialized experience and education are acceptable forms of experience for the specific grade level.(2) The Arbitrator found that although the grievant had 20 months time-in-grade at the GS-12 level, the Manual does not provide that education is an acceptable form of experience for a GS-13 position. The Arbitrator concluded that because the 10-month detail was for the purposes of education, the Agency could not have combined it with the grievant's 10 months of work experience when calculating the grievant's specialized experience.
Based on the foregoing, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award is deficient on three grounds. First, the Union asserts that the Arbitrator interpreted the Manual and "all other documentation and witness testimony incorrectly." Exceptions at 1. The Union's second claim is that the Arbitrator based the award on a nonfact. The Union contends that the grievant's 10-month detail was training and not educational experience and, as such, should have been credited as specialized experience. The Union also contends that the Arbitrator "totally misinterpreted and misunderstood" the Union's use of the term "time-in-grade" and that this was a "key point in rationale that play[ed] a major role in his decision making." Id. at 3.
Third, the Union claims that the award is contrary to law. The Union argues that the Manual provides for different ways in which an applicant can gain specialized experience, and that the Arbitrator "misinterpreted" the meaning of specialized experience as well as all the "potential paths that are possible for crediting specialized experience[.]" Id. at 3, 7. The Union contends that even if the 10-month detail was educational experience, the Manual provides that education gained on a detail can be credited as experience towards satisfying the minimum specialized experience qualifications for a position. The Union also asserts that the Arbitrator "made [a] Harmful Error by not making the proper decision and misinterpreting the OPM regulations and all other documentation and testimony in this case."(3) Id. at 12.
B. Agency's Opposition
The Agency contends that the Union's exceptions are without merit and should be denied. More specifically, the Agency maintains that the Union is "simply reargu[ing] its case before the Authority[,] claiming that the [U]nion's interpretation of the OPM requirements should be substituted for that of the [A]rbitrator's." Opposition at 5. The Agency claims that the Union has not presented any evidence that the Arbitrator's conclusions violate law, rule or regulation or that the award is deficient on any other grounds.
IV. Analysis and Conclusions
A. The Award Is Not Deficient Because the Arbitrator Failed to Properly Evaluate the Evidence
Disagreement with an arbitrator's evaluation of the evidence and his conclusions based thereon is not a ground for finding an award deficient. U.S. Department of Veterans Affairs, Regional Office, Boston, Massachusetts and American Federation of Government Employees, Local 2772, 51 FLRA 1769, 1774 (1996) (citing 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)). The Union's arguments that the Arbitrator failed to properly evaluate the evidence and that the evidence does not support his conclusions constitute disagreement with the Arbitrator's findings of fact and conclusions based upon such facts. As such, the arguments do not support a conclusion that the award is deficient.
Accordingly, we conclude that the award is not deficient because the Arbitrator failed to properly evaluate the evidence.
B. The Award Is Not Based On Nonfacts
To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. American Federation of Government Employees, Local 4042 and U.S. Department of Defense, Army Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 51 FLRA 1709, 1713 (1996) (citing 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 (1993)). 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. Id. (citing Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996)).
The Union has failed to demonstrate that the Arbitrator's determination that the grievant's 10-month detail was education and not training is a central fact underlying the award, but for which a different result would have been reached. Regardless of the label given the 10-month detail, the grievant was detailed to be educated or trained, and not to perform the duties of a GS-12 position. The Manual provides that training and education are analyzed in the same way when establishing an applicant's qualifications or when crediting experience towards a promotion. Therefore, a finding by the Arbitrator that the 10-month detail was training would not have dictated a different result.
The Union also asserts that the Arbitrator's understanding of the term "time-in-grade" was incorrect. Exception at 3. The Union contends that throughout its discussions with the Arbitrator, the Union's use of "time-in-grade" always referred to experience that should be credited as specialized experience, while the Arbitrator used the term to reference experience generally. Id. Construing this argument to be that the award is based on a nonfact, the Union has not demonstrated that the use of the term "time-in-grade" was central to the award, and but for the Arbitrator's interpretation and understanding of the term a different result would have been reached. Although the Arbitrator stated that the grievant had 20 months of "time-in-grade," the Arbitrator clearly found that only 10 months could be credited as specialized experience. The Union has not shown that the Arbitrator's use of the term "time-in-grade" affected the award in any way.
Accordingly, we conclude that the award is not deficient because it is based upon a nonfact.
C. The Award Is Consistent With Law
1. The Award Is Consistent With the Manual
An arbitration award will be found deficient under section 7122(a)(1) of the Statute where it conflicts with law, or a Government-wide or a governing agency rule or regulation. Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 409 (1996). The Manual is a Government-wide rule or regulation within the meaning of section 7122(a) of the Statute because it is promulgated by OPM and constitutes a mandatory policy which affects the Federal civilian workforce as a whole. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 751-55 (1980). See also Federal Aviation Administration, Atlantic City, New Jersey and Local 1340, National Federation of Federal Employees, 32 FLRA 426, 430 (1988). As the Union's exceptions assert that the Arbitrator "misinterpreted" the Manual and that the award is thus inconsistent with the Manual, the Authority must review those questions of law 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)).
The Union misplaces its reliance on numerous sections of the Manual that discuss employee details and the crediting of training or education, to argue that the 10-month detail should have been credited as specialized experience. The cited sections come from the General Policies and Instructions section (General Section) of the Manual, which is modified by the Group Coverage Qualification Standard for Professional and Scientific Positions (Qualification Standard), as well as the individual occupational requirements for Aerospace Engineering positions. Both the Qualification Standard and the individual occupational requirements are intended to be used in conjunction with one another and together they modify the General Section. See, e.g., Manual, at I-1 (the General Section is the "key to understanding and using the qualification standards in [the] Manual" and "contains basic information that applies across occupations," while the Qualification Standard and individual occupational requirements provide "common patterns of education [or] experience" and "minimum requirements for each occupational series"). Thus, the Qualification Standard or individual occupational requirements can constitute an exception to the General Section and its requirements.
Although the General Section provides that education and experience can be combined to meet minimum qualification requirements, the Qualification Standard states that "[e]ducation and experience may be combined [only] for . . . grade levels for which both education and experience are acceptable" forms of experience. Id. at IV-A-22; see, e.g., id. at II-19 (stating that education and experience can be credited as experience for a promotion). The position at issue here is a GS-13, and the applicable Qualification Standard does not permit a combination of education and experience. See id. at IV-A-22. The Manual clearly states that "[a]t GS-13 and above, appropriate specialized experience is required for all positions[,]" id. at II-12, and the Qualification Standard does not identify education as an acceptable form of experience when determining whether an applicant qualifies for a GS-12 and above position. Id. at IV-A-22. Therefore, education cannot be combined with specialized experience to meet the 1-year specialized experience requirement.
Based on the foregoing, we conclude that the Arbitrator's finding that the grievant's 10-month detail cannot be combined with his 10 months of specialized experience is in accordance with the Manual, and the award is consistent with the Manual.
2. The Award Is Not Deficient Because the Arbitrator Failed to Apply the Harmful-Error Rule
We construe the Union's exception that the Arbitrator made a harmful-error as a contention that the Arbitrator's award is contrary to law, specifically the harmful-error rule, as it is applied by the Merit Systems Protection Board under 5 U.S.C. § 7701(c). "Arbitrators are bound by the harmful-error rule of section 7701 only when they are resolving grievances over performance-based actions covered by 5 U.S.C. § 4303 or serious adverse actions covered by 5 U.S.C. § 7512." American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 51 FLRA 1140, 1143 (1996) (citing United States Department of Justice, Federal Bureau of Prisons, Correctional Institution, McKean, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 3974, 49 FLRA 45, 47 (1994)). As this grievance does not concern either of these two actions, there is no basis for finding that the harmful-error rule is applicable.
Accordingly, we conclude that the award is not deficient as contrary to law because the Arbitrator failed to apply the harmful-error rule.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. "Specialized experience" is defined in the Bulletin as:
Experience that equipped the applicant with the particular knowledge, skills, and abilities to perform successfully the duties of the position, and that is typically in or related to the work of the position to be filled. To be creditable, specialized experience must have been equivalent to at least the next lower grade level (GS-12) in the normal line of progression for the occupation in the organization.
Award at 3. See also Manual at IV-A-22 (1995) (providing the definition utilized in the Bulletin).
2. The Arbitrator relied on a table entitled, ADDITIONAL EXPERIENCE AND EDUCATION REQUIREMENTS FOR GS-7 AND ABOVE, which states that "[i]n addition to meeting the basic entry qualification requirements, applicants must have specialized experience and/or directly related education in the amounts shown in the table below." Manual at IV-A-22. The table provides the applicable education and specialized experience requirements for GS-7, GS-9, GS-11, and GS-12 and above positions. Id. All of the grade levels, with the exception of GS-12 and above, state particular educational experience requirements. For the GS-12 and above grade level the table does not state any acceptable form of educational experience.
3. The Union raises additional arguments that cannot be properly addressed by the