53:0956(77)AR - - SSA, Mid-Atlantic Program Service Cemter and AFGE Local 1923 - - 1997 FLRAdec AR - - v53 p956



[ v53 p956 ]
53:0956(77)AR
The decision of the Authority follows:


53 FLRA No. 77

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

MID-ATLANTIC PROGRAM SERVICE CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-2788

_____

DECISION

December 4, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Chair Segal for the Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Edward A. Pereles 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 found that the Agency violated the collective bargaining agreement by not affording the grievant bona fide consideration when he exercised his priority consideration entitlement for a vacant position.

For the reasons explained below, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The Agency posted region-wide vacancy announcements for positions at the GS-10 and GS-11 levels in one of its components. The grievant, who worked in a different component from the one in which the vacancies existed, applied for a GS-10 position and exercised his entitlement to "priority consideration."(1) He was not selected and was advised that his priority consideration entitlement was therefore terminated. According to the Agency, it did not select the grievant because there was a ceiling on full-time equivalent positions (FTEs) in the component with the vacancies and it could not select anyone, including the grievant, who did not already work in that component.

The Union filed a grievance challenging the Agency's failure to give bona fide consideration to the grievant. The grievance was not resolved and was submitted to arbitration. The parties were unable to stipulate to an issue, and the Arbitrator framed the issue as follows:

Did the Agency violate the National Agreement, law, rule or government wide regulation when it denied the [g]rievant a promotion to Social Security Claims Examiner (Disability) GS-992-10 under Vacancy Announcement SSA #93-38 (GS-10) and thereby extinguished his priority consideration because of budgetary (staffing ceiling) restrictions? If so, what shall the remedy be?

Award at 10-11.

The Arbitrator found that the Agency's actions constituted two unwarranted personnel actions. First, the Arbitrator determined that the Agency, solely for budgetary considerations and without successfully completing negotiations with the Union, reduced the area of consideration to employees who worked in the component in which the vacancies occurred. The Arbitrator concluded that the Agency's action was "impermissible under the negotiated [a]greement and case law and therefore, must be considered an unjustified personnel action." Id. at 12. Second, the Arbitrator found that the Agency failed to provide the grievant bona fide consideration based on his priority consideration entitlement, and this failure constituted an unwarranted personnel action. The Arbitrator concluded that "[b]ut for the action of the Agency," the grievant would have been selected for the vacant position. Id. The Arbitrator found that the "consequences of the Agency's failure to promote the [g]rievant" were that he "was denied pay increase, overtime opportunities, possible [a]wards, and time in grade." Id. at 12-13.

For these reasons, the Arbitrator found that the grievant: (1) "should have been selected" and "that his denial was an 'unjustified and unwarranted personnel action'"; (2) "that had he been selected, the [g]rievant would have been promoted"; (3) "but for the Agency's failure to select and promote the [g]rievant" he would have received a further promotion; and (4) "the [g]rievant must be made whole and receive [backpay], as well as any awards, overtime, etc., with interest that he would have had received but for the unjustified and unwarranted action of the Agency[.]" Id. at 13.

III. The Award Is Not Based on a Nonfact

A. Positions of the Parties

1. Agency's Exception

The Agency contends that the Arbitrator mischaracterized the Agency's unsuccessful attempt to negotiate with the Union to modify the area of consideration. The Agency argues that it did attempt to negotiate with the Union but, after extensive discussion with the Union, it was clear that the Union's application of the agreement with regard to areas of consideration "did excessively interfere with management's [section] 7106(a) rights." Memorandum in Support of Exceptions at 6. According to the Agency, although no agreement was reached, it believed that the Union acquiesced in limiting consideration to the component in which the vacancies existed.

2. Union's Opposition

According to the Union, the Agency has not presented any evidence that the award was clearly erroneous, but for which a different result would have been reached. The Union asserts that the Agency acknowledged that it was clearly within the authority of the Arbitrator to find that the grievant was not given proper consideration for promotion and is due an appropriate remedy.

B. Analysis and Conclusions

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. 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) (Lowry Air Force Base). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a 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) (HCFA). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996) (Bureau of Prisons).

The Agency has not established that the Arbitrator's statement about the Agency's attempt to negotiate with the Union over the area of consideration is either the central fact underlying the award or clearly erroneous. Therefore, the Agency has not established that the award is based on a nonfact, see HCFA, 51 FLRA at 579, and we deny this exception.

IV. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

A. Positions of the Parties

1. Agency's Exception

The Agency contends that the Arbitrator's award does not draw its essence from "the terms of the negotiated agreement or the parties['] MOU agreement."(2) Exceptions at 1. However, the Agency does not specify how the award fails to draw its essence from a specific agreement provision.

Instead, the Agency argues that the award requires it to promote the grievant earlier than the Agency would have selected any other employee. The Agency further contends that there is no basis for the dates used by the Arbitrator to provide make-whole relief to the grievant. The Agency asserts that if the grievant had been selected, the effective date would have been about 7 weeks later than the date found by the Arbitrator. In regard to the remedy outlined by the Arbitrator, the Agency notes that the grievant subsequently was promoted to GS-11, and because of this promotion the grievant actually earned more than if he had been selected for the GS-10 vacancy.

2. Union's Opposition

The Union asserts that the Agency has not referred to any facts that would show that the award did not draw its essence from the agreement. The Union did not address the Agency's contention regarding the date from which any remedy should be computed.

B. Analysis and Conclusions

The Agency makes a bare assertion that the award fails to draw its essence from the agreement. The Agency does not specify any provision from which the award allegedly fails to draw its essence. The sole argument presented by the Agency to support this exception contests the date on which the Arbitrator bases the grievant's remedy.

The agreement provisions at issue concern the area of consideration for vacancy announcements and how the Agency is to afford consideration to priority consideration candidates. The Arbitrator determined that the effect of the Agency's actions was to impermissibly restrict the area of consideration and effectively eliminate the grievant from consideration. Moreover, the Arbitrator determined that Article 26, Section 8 of the agreement provides that the Agency is to afford priority consideration candidates "bona fide consideration for noncompetitive selection[.]" Award at 4. The Arbitrator's determination that management should have afforded "bona fide consideration" to the grievant but failed to do so was not implausible, irrational, or unconnected to the agreement's wording. Accordingly, the award does not fail to draw its essence from the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

As to the Agency's contention regarding the effective date for the grievant's promotion, the Agency's bare assertion does not persuade us that the date set by the Arbitrator fails to draw its essence from the agreement. Even if this contention were construed as an argument that the award is based on a nonfact, the Agency has not demonstrated that the award is deficient. The Agency has not established that the Arbitrator's determination regarding the effective date for the grievant's promotion was clearly erroneous.(3) Therefore, the Agency has not demonstrated that the award is based on a nonfact. See HCFA, 51 FLRA at 579.

Accordingly, the Agency's contention provides no basis to find the award deficient and we deny this exception.

V. The Arbitrator Did Not Exceed His Authority

A. Positions of the Parties

1. Agency's Exception

The Agency argues that "[t]he Arbitrator exceeded his authority by reaching a conclusion totally contrary to the facts of the case and the clear language of the [parties'] agreement." Exceptions at 1. In its brief, the Agency did not elaborate on this exception.

2. Union's Opposition

The Union did not specifically address this exception.

B. Analysis and Conclusions

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the Arbitrator framed the issue as whether the Agency violated the parties' agreement when it denied the grievant a promotion and thereby extinguished his priority consideration status. The award is directly responsive to this issue. Accordingly, the exception provides no basis to find the award deficient and we deny the exception. See U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 160 (1997).

VI. The Award Is Not Contrary to the Agency's Right to Select under Section 7106(a) of the Statute

A. Positions of the Parties

1. Agency's Exception

The Agency argues that the award is deficient because it conflicts with the Agency's right to select under the Statute. Citing U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816, 817 (1990) (SSA I), the Agency contends that Article 26 of the parties' agreement does not conflict with the Agency's right to select under section 7106(a) of the Statute and does not entitle a priority consideration candidate to "automatic selection." Memorandum in Support of Exceptions at 10. The Agency states that in exercising its rights under section 7106(a) of the Statute, it "did not attempt to justify its rejection of the grievant'[s] priority consideration solely on the grounds of budgetary considerations." Id. at 9. The Agency maintains that "[t]hose considerations were, in fact, necessary and relevant considerations that were factors used in affording the 'bona fide['] consideration required under the [a]greement." Id. at 9-10.

The Agency also argues that under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), Federal agency action shall be set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. The Agency asserts that its "apparent failure" to negotiate with the Union over a change in the area of consideration was a good faith mistake or misunderstanding and, therefore, status quo ante relief should not be ordered. Id. at 9.

2. Union's Opposition

The Union asserts that the Agency does not cite any authority or explain how its right to select was abridged by the award. With regard to budgetary considerations, the Union contends that there is no evidence that the award interferes with the Agency's right to establish its budget.

B. Analysis and Conclusions

In three previous cases, the Authority reviewed arbitration awards finding that the Agency had denied grievants the priority consideration to which they were entitled by the same provision of the parties' agreement at issue here--Article 26, Section 8.(4) Social Security Administration, Mid-Atlantic Program Service Center, and American Federation of Government Employees, Local 2006, 50 FLRA 578 (1995) (SSA III); U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134 (1993) (SSA II); SSA I, 37 FLRA 816. The Agency filed exceptions in each case, as it does here, claiming that the award violated its right to select under section 7106(a)(2)(C) of the Statute. In SSA I and SSA III, the Authority found that the arbitrator had interpreted the provision to require that the grievant be given bona fide consideration, not automatic selection.(5) SSA III, 50 FLRA at 582; SSA I, 37 FLRA at 817, 822-23. The Authority concluded that the provision, as interpreted and applied by the arbitrators, was an appropriate arrangement, consistent with section 7106(b)(3) of the Statute and, therefore, the awards did not violate management's right to select under section 7106(a)(2)(C).

Here, the Arbitrator (who also issued the award reviewed in SSA III) interpreted Article 26, Section 8 to require that the grievant was entitled to bona fide consideration, not an automatic promotion. The Arbitrator applied the parties' agreement provision on priority consideration and concluded that the Agency's "failure to provide a bona fide review" of the grievant's priority consideration when it reduced the area of consideration constituted an unjustified personnel action. Award at 12. In so concluding, the Arbitrator found that had the Agency performed a bona fide review of the grievant's priority consideration the grievant would have been selected. This assessment was based on the Arbitrator's factual findings and reasoning, to which we defer. See Bureau of Prisons, 51 FLRA at 1607-08.

The Agency's disagreement with the Arbitrator's interpretation and application of Article 26, Section 8 of the parties' agreement does not support a conclusion that the award is contrary to section 7106(a)(2)(C). Priority consideration agreement provisions that preserve management's right to determine the minimum standard for adequate performance of the job and do not require that an unqualified employee be promoted under a priority consideration, do not violate management's right to select under section 7106(a)(2)(C) of the Statute. For example, U.S. Department of the Treasury, Headquarters, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, Chapter 65, 49 FLRA 1430, 1439-40 (1994). There is no contention in this case that Article 26, Section 8 does not preserve management's right to determine the minimum standard for adequate performance of the job, or that the grievant was not qualified for the position. Accordingly, we conclude that the award is not contrary to management's right to select under section 7106(a)(2)(C) of the Statute. See SSA III, 50 FLRA at 582.

As to the Agency's contention regarding the APA, we construe the Agency's contention as an argument that because it acted in good faith, no status quo ante relief should be included in the award. However, under the APA, Federal agency action shall be set aside if it is not in accordance with law. The Arbitrator determined that the Agency violated two provisions of the parties' agreement. The Agency has not demonstrated how the Arbitrator's determinations are erroneous or inconsistent with the APA. Therefore, the Agency's contention does not provide a basis to find the award deficient and we deny the exception.

VII. The Award Is Not Contrary to the Back Pay Act

A. Positions of the Parties

1. Agency's Exception

The Agency argues that the Arbitrator's findings do not meet the "but for" test to establish that the personnel actions that he found to be unwarranted resulted in the denial of a promotion to the grievant that he otherwise would have received.

2. Union's Opposition

According to the Union, the award complies with the Back Pay Act because the Arbitrator found that the violations of the agreement directly resulted in the grievant's loss of pay and, but for the violations, the grievant would not have suffered a loss of pay.

B. Analysis and Conclusions

Under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjust or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996).

The Arbitrator's explicit findings fulfill each of the three criteria for an award of backpay under the Back Pay Act, including meeting the "but for" test. The Arbitrator found that the grievant was affected by two separate unwarranted personnel actions: (1) the Agency impermissibly reduced the area of consideration under the parties' agreement; and (2) the Agency failed to provide a bona fide review of the grievant's priority consideration. The Arbitrator found that these unwarranted personnel actions resulted in the grievant's nonselection for promotion. Finally, the Arbitrator found that "[b]ut for the action of the Agency, [the grievant's] request would have been granted[.]" Award at 12. The Authority accords deference to an arbitrator's factual findings and reasoning because the parties have bargained for the facts to be found by an arbitrator chosen by them. Bureau of Prisons, 51 FLRA at 1607-08.

The Arbitrator's award applies the three criteria in the framework established by the Authority for an award of backpay under the Back Pay Act, and meets the "but for" test established in that framework. Therefore, the Agency's exception provides no basis to find the award deficient and we deny the exception.

VIII. Decision

The Agency's exceptions are denied.




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

1. Under Article 26, Section 8 of the parties' agreement, priority consideration means "the bona fide consideration for noncompetitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation." Award at 4. The grievant had priority consideration because he had previously been "improperly left off a [best-qualified list] in the same component [where the vacancies were announced]" Id. at 12.

2. The record contains no reference to any "MOU agreement" and no further argument is made regarding this contention.

3. With respect to the Agency's contention that the grievant subsequently was promoted to GS-11 and earned more than if he had been selected for the GS-10 vacancy, we note that under the Back Pay Act, discussed below in Section VII, the grievant is entitled to only those monies that he otherwise would have earned but did not receive.

4. In a fourth case, the Arbitrator found that the Agency afforded the grievant bona fide priority consideration even though the grievant was not selected. American Federation of Government Employees, Local 2006 and Social Security Administration, Philadelphia, Pennsylvania, 52 FLRA 380 (1996). The Authority denied the union's exceptions to the award.

5. In SSA II, by contrast, the Authority set aside an award ordering the Agency to select the grievant, because the award confl