National Federation of Federal Employees, Local 1658 and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque, New Mexico

[ v55 p668 ]

55 FLRA No. 117

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1658
(Union)

and

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
ALBUQUERQUE, NEW MEXICO
(Agency)

0-AR-3081

_____

DECISION

July 31, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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 Howard V. Finston 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.

      The Arbitrator found that the Agency did not violate law or the parties' collective bargaining agreement in declining to select the grievant for a superintendent position with the Southern Ute Tribe. Accordingly, the Arbitrator denied the grievance.

      For the reasons that follow, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute.

II.     Background and Arbitrator's Award

      In 1995, the grievant responded to a vacancy announcement (the 1995 announcement) for a superintendent position with the Southern Ute Tribe. The grievant was the Tribe's choice for the position, and the Tribe twice communicated this preference to the Agency. In January 1996, the Agency offered the position to a different candidate, who declined the offer.

      The Agency canceled the announcement and re-advertised the position (the 1996 announcement). Applications submitted in response to the 1995 announcement were not automatically considered for the 1996 announcement. The grievant and the other non-selected candidates for the 1995 vacancy were not notified that the 1995 announcement had been canceled until approximately 2 weeks before the closing date for the 1996 announcement.

      The grievant did not submit an application for the 1996 position and, as a result, he was not considered for the position. The Agency offered the position to another individual, who accepted the offer. The grievant then filed a grievance challenging both the Agency's cancellation of the 1995 announcement and the selection procedures utilized with regard to the 1996 announcement. When the grievance was unresolved, the parties submitted it to arbitration.

      The Arbitrator framed the issues as follows:

1.     Did the [Agency], preceding or during the 1996 selection process for the superintendent position of the Southern Ute Tribe,

(a)     engage in a prohibited personnel practice in violation of 5 U.S.C. 2302(b)(5), (6) and/or (11) and/or

(b)     violate 5 C.F.R. 335, 44 BIAM 335, the Merit Promotion Plan and/or the Negotiated Agreement?

2.     If (a) and or (b) above, what is the appropriate remedy?

Award at 1.

      The Arbitrator found that the Tribe's preference for a candidate does not necessarily determine the outcome of a selection procedure. Citing 5 C.F.R. 335.103(b)(4), [n1]  the Arbitrator concluded that the Agency has discretion to select an employee from a group of candidates. The Arbitrator also found that it was management's prerogative to select from an entirely new pool of applicants in 1996, rather than carrying over the applications from 1995.

      According to the Arbitrator, the 1996 announcement "was distributed in customary fashion and in a way designed to reach appropriate applicants." Award at 9. The Arbitrator determined that the Agency did not [ v55 p669 ] attempt to prevent the grievant from responding to the 1996 announcement and that, although the grievant asserted that he did not become aware of the 1996 announcement until the position closed, "several other non-selectees under the 1995 announcement who received the same delayed notification apparently were able to respond to the 1996 competition." Id. The Arbitrator rejected the assertion that the grievant was entitled to personal notification of the 1996 announcement, and the assertion that the 1996 announcement was invalid because the grievant was unaware of it.

      The Arbitrator found that the grievant did not receive timely notification of the 1995 cancellation. Nevertheless, citing Shively v. Department of the Army, 59 M.S.P.R. 531 (1993) (Shively), the Arbitrator determined that because cancellation of a vacancy announcement does not constitute a personnel action, late notification per se is not a proper basis for finding a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(11) (1998). [n2]  The Arbitrator also found that the Agency did not violate 5 U.S.C. § 2302(b)(5), [n3]  because the Agency neither deliberately prevented the grievant from applying under the 1996 announcement, nor induced the grievant to withhold his application and/or withdraw from the competition.

      The Union asserted that the Agency considered one particular individual (Cordova) under the 1996 announcement, even though Cordova either applied late, or did not apply at all. According to the Union, this provided Cordova with an unauthorized preference for a proscribed purpose, in contravention of 5 U.S.C. § 2302(b)(6). [n4]  The Arbitrator rejected this argument on the grounds that: (1) the grievant was not adversely affected by, and lacked standing to contest, the Agency's consideration of Cordova because the grievant did not respond to the 1996 announcement; (2) even assuming the grievant had standing, the preponderance of the evidence did not establish either that the application was late or that Cordova did not apply; and (3) even assuming that record-keeping irregularities violated Agency procedure or federal regulation, such violations constitute "harmless error for which no official sanction or remedy is appropriate." Award at 10-11.

      Finally, the Arbitrator found that the selection process met the spirit and intent of the Merit Promotion Plan, that the Agency's actions did not violate the parties' agreement, and that the grievant's proposed remedy -- awarding the grievant a noncompetitive promotion -- was inequitable and beyond the Arbitrator's authority.

      Based on the foregoing, the Arbitrator dismissed the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator erred in finding that several non-selectees under the 1995 announcement were able to respond to the 1996 announcement. In support of this contention, the Union submits documents purportedly indicating that "at least three applicants that were considered for the position did not submit applications." Exceptions, Attachment 3. The Union also argues that the Arbitrator erred in finding that Cordova signed and submitted a timely application for the 1996 announcement.

      According to the Union, the Agency intentionally thwarted the Tribe's wishes throughout the selection process and, thereby, committed prohibited personnel practices. Specifically, the Union argues that the Arbitrator erred in concluding that the Agency did not violate 5 U.S.C. § 2302(b)(5), (6), and/or (11). In support of its 5 U.S.C. § 2302(b)(11) claim, the Union asserts that the Agency violated the Merit Promotion Plan, the parties' agreement, Agency regulation 44 BIAM 335, and 5 C.F.R. § 335. The Union also asserts that the Agency's failure to comply with 44 BIAM 335 constitutes a violation of the Administrative Procedure Act (APA).

      The Union contends that a particular Agency witness (hereinafter "the Agency witness") made false statements under oath when she claimed that she was unaware of the Tribe's wish that the grievant would be offered the position. In support of this contention, the Union submits signed statements by individuals who had interactions with the Agency witness. The Union also maintains that Cordova's testimony at the hearing [ v55 p670 ] (that he believed he had applied twice for the 1996 position), conflicts with statements Cordova made to other individuals at various times (that he did not apply at all for the 1996 position).

      Finally, the Union argues that the Arbitrator "erred in his ruling that [the] selection process met the spirit and intent of the Merit Promotion Plan, and provided prospective and actual candidates with an equal opportunity to participate in an open and fair competition." Exceptions, Attachment 3. In support of this argument, the Union asserts that a "FOIA and grievance were filed" concerning the 1995 competition. Id.

B.     Agency's Opposition

      The Agency asserts two threshold arguments. First, the Agency argues that the Union's exceptions should be dismissed because the statement of service is defective. According to the Agency, the statement certifies that copies of the Union's exceptions were hand-delivered on July 31, 1998, when they were not actually hand-delivered until August 4, 1998. [n5]  Second, the Agency argues that all of the signed statements attached to the Union's exceptions -- purportedly demonstrating that the award is based on false testimony from the hearing -- post-date, and that all but one of those signed statements post-date the issuance of the award. Accordingly, the Agency contends, these statements and the facts alleged therein were not presented to the Arbitrator and should not be considered by the Authority.

      On the merits, the Agency argues that the Agency had discretion to select a candidate, that the Agency's decision to select from a new applicant pool in 1996 was management's prerogative, and that a preponderance of evidence did not support a conclusion that the Agency's decision was made in bad faith or was arbitrary. The Agency also argues that it did not violate 5 U.S.C. § 2302(b)(5), because: (1) the 1996 vacancy announcement was distributed in a manner designed to reach appropriate applicants; (2) the Agency did not attempt to prevent the grievant from responding to the 1996 announcement; and (3) several non-selectees under the 1995 announcement were able to respond to the 1996 competition. The Agency claims that cancellation of a vacancy announcement does not constitute a "personnel action" within the meaning of 5 U.S.C. § 2302(a)(2)(A), and, as a result, even if the grievant did not receive notification of the cancellation of the 1995 announcement, that would not constitute a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(11).

      With regard to the Union's assertions that Cordova and the Agency witness presented false testimony at the hearing, the Agency argues that the three-pronged test for determining whether an arbitral award has been procured by fraud, set forth in International Association of Machinists and Aerospace Workers, Local 2333 and U.S. Department of the Air Force, 88th Air Base Wing, Wright-Patterson Air Force Base, Ohio, 53 FLRA 1605 (1998) (Wright-Patterson), has not been met here.

IV.     Preliminary Matters

      As long as a party timely serves its exceptions on another party, minor errors in the statement of service will not result in dismissal of the exceptions. See Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 39 FLRA 1568, 1572-73 (1991), enforcement denied and vacated on other grounds, 963 F.2d 429 (D.C. Cir. 1992) (where the statement of service failed to specify the manner of service, but respondent was otherwise timely served, the Authority considered the exceptions). In this case, the deadline for the Union to serve the Agency with a copy of its corrected exceptions was August 4. The Agency concedes that the Union served it with a corrected copy of the exceptions on August 4. Accordingly, the exceptions were timely served on the Agency. The error in the statement of service is the type of minor error previously held not to require dismissal. See id. Therefore, consistent with this precedent, we will consider the Union's exceptions.

      However, under section 2429.5 of the Authority's Regulations, the Authority will not consider evidence offered by any party, or any issue, that was not presented at the proceedings before the Arbitrator. See, e.g., Sports Air Traffic Controllers Organization and U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California, 55 FLRA 34, 36 n.5 (1998). The documents relating to Cordova, which the Union attached to its exceptions, are dated later than the January 7-8, 1998, arbitration hearing, and, therefore, were not presented in the arbitration proceeding. Accordingly, we will not consider those documents in resolving the Union's exceptions. Id. [ v55 p671 ]

V.     Analysis and Conclusions

A.     The Award Is Not Based on Nonfacts.

      The Union contends that the Arbitrator erred in finding that several non-selectees under the 1995 announcement re-applied in 1996, and that applicant Cordova timely applied in 1996. We construe these arguments as asserting that the award is deficient because it is based on nonfacts. To establish that an award is based on nonfacts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. See 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). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      Before the Arbitrator, the Union contended that Cordova either failed to apply in 1996, or did not timely apply. The Arbitrator considered, and rejected, the Union's arguments in this regard. Because this matter was contested below, the Union's exception does not provide a basis for finding that the award is based on a nonfact, and we deny the exception in this respect.

      With regard to the Arbitrator's finding that several 1995 non-selectees re-applied in 1996, it is not clear in the award whether this fact was disputed below. However, even if it was not disputed, the Arbitrator's finding in this respect was not a central fact underlying the award. The Arbitrator found that the grievant was not considered for the 1996 position because he failed to re-apply, not because the other 1995 non-selectees had re-applied. As such, the Union has not demonstrated that the award is based on a nonfact, and we deny the exception in this respect as well.

B.     The Award Is Not Contrary to Law.

      Several of the Union's exceptions involve the award's consistency with law. We review questions of law raised by the Union's exceptions and the Arbitrator's award de novo. See 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)). In applying a standard of de novo review, we assess whether the Arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, we defer to the Arbitrator's underlying factual findings. See id.

1.     The Arbitrator Was Not Bound to Apply the Harmful Error Rule.

      The Authority has held that arbitrators are bound by the harmful-error rule set forth in 5 U.S.C. § 7701(c)(2)(A) "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, 52 FLRA 739, 746 (1996) (citations omitted). As this case does not involve an action covered under either of those two statutory sections, the Arbitrator was not required to apply the harmful error rule, and the Union's exception does not provide a basis for finding the award deficient. Accordingly, we deny this exception.

2.     The Arbitrator Did Not Err in Finding that the Agency Did Not Engage in Prohibited Personnel Practices.

      The Union asserts that the Arbitrator erred by finding that the Agency did not commit prohibited personnel practices within the meaning of 5 U.S.C. § 2302(b)(5), (6), and (11). The Arbitrator found that the cancellation of a vacancy announcement does not constitute a "personnel action" within the meaning of 5 U.S.C. § 2302(a)(2)(A). Accordingly, because a finding of a prohibited personnel practice is predicated on a personnel action, the Arbitrator determined, as an initial matter, that the Agency did not commit a prohibited personnel practice when it canceled the 1995 announcement. See Shively, 59 M.S.P.R. at 536; see also Slake v. Department of Treasury, 53 M.S.P.R. 207, 215 (1992)

      Nevertheless, non-selection for a position does constitute a "personnel action". See Embree v. Department of the Treasury, 70 M.S.P.R. 79, 86 (1996), decision after remand, 73 M.S.P.R. 149 (1996). Accordingly, although the Arbitrator correctly found that the cancellation of the 1995 announcement could not be a basis for finding that the Agency committed prohibited personnel practices, the grievant's non-selection for the 1996 position can be considered in assessing whether the Agency committed such practices. Our de novo review of the award leads us to conclude, for the reasons that follow, that the Arbitrator did not err in [ v55 p672 ] finding that the Agency did not engage in prohibited personnel practices.

a.     The Award Is Not Inconsistent with 5 U.S.C. § 2302(b)(5).

      5 U.S.C. § 2302(b)(5) prohibits an employee from "influenc[ing] any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment." This requires a two-part showing: (1) that an employee influenced or attempted to influence a person to withdraw from competition; and (2) that the influence was exerted to improve or injure the employment prospects of another. Special Counsel v. Brown, 61 M.S.P.R. 559, 565 (1994).

      The Arbitrator found, as a factual matter, that "the preponderance of the evidence does not establish deliberate intent by the [Agency] to prevent [the grievant] from applying under the 1996 announcement or to induce him to withhold such application and/or withdraw from the competition." Award at 10. We defer to the Arbitrator's factual finding. See Army Research, 53 FLRA at 1710. This factual finding supports a conclusion that the Agency did not influence or attempt to influence the grievant to withdraw from the 1996 competition. As such, the first showing necessary to a finding of a 2302(b)(5) violation has not been established here. Accordingly, the Union fails to demonstrate that the award is inconsistent with 5 U.S.C. § 2302(b)(5), and we deny this exception.

b.     The Award Is Not Inconsistent with 5 U.S.C. § 2302(b)(6).

      A prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(6) requires an intentional or "purposeful taking of a personnel action in such a way as to give preference to a particular individual for the purposes of improving her prospects for employment." Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993). 5 U.S.C. § 2302(b)(6) does not require that an unauthorized promotion result in an advantage, but only that the purpose of the promotion is to give an advantage. See Special Counsel v. DeFord, 28 M.S.P.R. 98, 104-105 (1985) (employee granted individual a retroactive promotion in order to give her advantage in anticipated RIF; fact that RIF never occurred did not change fact that promotion violated 2302(b)(6)).

      Consistent with the foregoing, the fact that Cordova was not ultimately selected for the position would not mitigate a finding of a 2302(b)(6) violation, if he was granted an illegal preference. However, the Arbitrator found that a preponderance of the evidence did not establish that Cordova either applied late or did not apply at all and, as discussed supra, the Union has not demonstrated that the Arbitrator's finding in this regard was deficient. As such, there is no evidence indicating that the Agency's consideration of Cordova's application was the result of a personnel action intended to give him a preference, as opposed to a typical consideration of an application for a position. Thus, even assuming that the grievant has standing to assert that the Agency committed a prohibited personnel practice by considering Cordova's application, the Union has not demonstrated that the Agency committed a 2302(b)(6) violation. Accordingly, we deny this exception.

c.     The Award Is Not Inconsistent with 5 U.S.C. § 2302(b)(11).

      If a party claims that a prohibited personnel practice was committed under 5 U.S.C. § 2302(b)(11), that party must: (1) identify the merit system principle at issue; (2) identify the law or regulation that has been violated; and (3) explain the way in which the law or regulation implements or directly concerns the identified merit principle. Reimer v. Department of Interior, 71 M.S.P.R. 205, 210 (1996) (Reimer) (citing, inter alia, 5 C.F.R. 1203.11(b)(2)).

      The Union argues, in its exceptions, that the Agency committed the prohibited personnel practice of "[un]equal treatment" in its selection process. Exceptions at 1. In its post-hearing brief to the Arbitrator, the Union specifically cites in support of its claim 5 U.S.C. §2301(b)(1), [n6]  which states, in pertinent part, that "selection and advancement should be determined . . . after fair and open competition which assures that all receive equal opportunity." We construe the Union's arguments as specifically pertaining to that merit principle.

      The Union makes several arguments, in its post-hearing brief, that the Agency committed prohibited personnel practices within the meaning of 5 U.S.C. § 2302(b)(11). Specifically, the Union relies on the Merit Promotion Plan, the parties' agreement, 44 BIAM 335, and 5 C.F.R. § 335. With regard to the Merit Promotion Plan and the parties' agreement, the Union does not demonstrate that these constitute "laws or regulations" implementing or directly concerning the asserted merit system principle. Reimer, 71 M.S.P.R. at 210. As a result, even assuming that the Agency violated the Merit Promotion Plan and the parties' agreement, the Union has not demonstrated that such violations constitute prohibited personnel practices within the meaning of 5 [ v55 p673 ] U.S.C. § 2302(b)(11). We now address the Union's contention that the Agency violated 44 BIAM 335 and 5 C.F.R. § 335, and that such violations constitute prohibited personnel practices under 5 U.S.C. § 2302(b)(11).

i.     44 BIAM 335

      The Union cites three sections of 44 BIAM 335 in support of its argument that the Agency violated 5 U.S.C. § 2302(b)(11): 44 BIAM 335.1.19.G, 44 BIAM 335.1.20.A, and 44 BIAM 335.1.22.A.

      According to the Union, the Agency did not meet the requirements set forth in 44 BIAM 335.1.19.G, because it failed to timely notify the grievant that the 1995 announcement had been canceled. [n7]  However, as discussed supra, cancellation of a vacancy announcement does not constitute a personnel action within the meaning of 5 U.S.C. § 2302(a)(2)(A), and as such, a violation of 5 U.S.C. § 2302(b)(11) cannot be premised on the Agency's activity with regard to cancellation of the 1995 announcement.

      The Union asserts that the Agency "violated its policy to provide Indian preference eligibles with every opportunity for employment" under 44 BIAM 335.1.20.A. [n8]  Union Post-Hearing Brief at 13. In this connection, the Union contends that the Agency was aware that the grievant, an Indian preference eligible, continued to express interest in the 1995 position before and during the 1996 application period, but that the Agency: (1) chose not to timely notify him of his non-selection in 1995; (2) chose not to timely notify him of the 1996 re-advertisement of the position; and (3) declined to carry over the grievant's 1995 application. The Union has not demonstrated that 44 BIAM 335.1.20.A. required the Agency to take those steps. In this regard, the Arbitrator found that there was nothing requiring the Agency to personally notify the grievant that the position was re-advertised, and that the grievant had the same opportunity to re-apply as the other 1995 non-selectees, some of whom the Arbitrator found did re-apply in 1996. With regard to the Agency's failure to carry over the 1995 applications, the Arbitrator found that such a determination represented a "judgment call on [m]anagement's part," and that a "preponderance of the evidence [did] not support the conclusion that this decision was made in bad faith or was arbitrary." Award at 9.

      Additionally, the Union contends that the Agency failed to meet the requirements set forth in 44 BIAM 335.1.22.A, [n9]  because Cordova's application was lacking a postmark and date-received stamp. However, nothing in the Agency regulation requires that specific information. The Union has not demonstrated that the award is inconsistent with 44 BIAM 335. [n10] 

ii.     5 C.F.R. § 335

      The Union also asserts that the Agency violated 5 C.F.R. § 335.103, and thereby committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(11). Although the Union's exceptions do not specify what subsection(s) of 5 C.F.R. § 335.103 has been violated, in its post-hearing brief, the Union made arguments relating specifically to 5 C.F.R. § 335.103(4) and (5). [n11]  Accordingly, we construe the Union's exceptions as arguing that the Agency violated 5 C.F.R. § 335.103(4) and (5).

      The Arbitrator found that the Agency is not required to select a candidate solely because the candidate has received the Tribe's endorsement. The Union does not demonstrate that the Agency, in determining the source or sources from which to select candidates, failed to consider which source(s) were "most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals." 5 C.F.R. § 335.103(b)(4). As the Union has not established a violation of 5 C.F.R. § 335.103(b)(4), even assuming that regulation directly concerns or implements a merit system principle, the [ v55 p674 ] Union fails to demonstrate that the Agency committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(11) in that respect.

      Finally, the Union argues that the Agency violated 5 C.F.R. § 335.103(5) because Cordova's application did not contain either a postmark or date-received stamp. Especially given the fact that Cordova was not offered the position, and as there is no authority cited or apparent interpreting that regulation as mandating a postmark or date-received stamp, there is no basis for finding that the omission of this information from Cordova's application indicates that the Agency failed to "maintain a temporary record of [the 1996] promotion sufficient to allow reconstruction of the promotion action[.]" 5 C.F.R. § 335.103(b)(5). As the Union has not shown a violation of that regulation, we find that the Union has not established that the Agency violated 5 U.S.C. § 2302(b)(11) violation in that regard.

      For the foregoing reasons, we conclude that the Union has not demonstrated that the Arbitrator erred in finding that the Agency did not commit a prohibited personnel practice under 5 U.S.C. § 2302(b)(11), and we deny this exception.

C.     The Award Is Not Inconsistent with Tribal Consultation Rights.

      The Union asserts that the award is inconsistent with Tribal consultation rights. Specifically, the Union contends that the award violates Tribal self-rule and self-determination, as "guaranteed by statue [sic] and tribal constitution[,]" and does not comport with President Clinton's proclamation to "build[] a more effective day to day working relationship reflecting respect for the rights of self-government due the sovereign tribal governments." Exceptions, Attachment 3. The Union does not explain what, if any, actions the Agency was required to take to consult the Tribe in reaching its selection decision. Moreover, as the Agency asserts, Opposition at 6-7, the Arbitrator rejected this argument, finding that "available evidence fails to establish that [T]ribal preference necessarily determines the outcome of a selection procedure," and the Agency "has the managerial discretion necessary" to select candidates for positions. Award at 9 (citing 5 C.F.R. § 335.103(4)) (emphasis added). Accordingly, the Union has not established that the award is deficient because the Agency violated Tribal consultation rights by declining to select the grievant, and we deny this exception.

D.     The Award Was Not Procured by Fraud.

      The Union argues that Cordova and the Agency witness made false statements under oath. We construe this argument as an assertion that the award is deficient because it was procured by fraud. In order to demonstrate that an arbitration award is deficient on this ground, the excepting party must demonstrate that the fraud: (1) must not have been discoverable on the exercise of due diligence prior to arbitration; (2) must materially relate to an issue in the arbitration; and (3) must be established by clear and convincing evidence. Wright-Patterson, 53 FLRA at 1608.

      As discussed supra, the attachments to the Union's exceptions are not properly before us for consideration in resolving those exceptions. As the record contains no other evidence to contradict the testimony provided by Cordova and the Agency witness at the hearing, the Union has not established, by clear and convincing evidence, that the award was procured by fraud. Accordingly, we deny this exception.

E.     The Agency Did Not Violate the Merit Promotion Plan.

      The Union contends that the Agency violated the Merit Promotion Plan by failing to provide "prospective and actual candidates with an equal opportunity to participate in a fair and open competition." Exceptions, Attachment 3. However, the Union does not explain how the Agency failed to do so. Moreover, the Arbitrator specifically found that the Agency "provided prospective and actual candidates with an equal opportunity to participate in a fair and open competition." Award at 11. As the Union has not supported its contention that the Agency deprived candidates of an equal opportunity to participate in a fair and open competition, the Union has not established that the Agency violated the Merit Promotion Plan in that regard, and we deny this exception. [n12] 

VI.     Decision

      The Union's exceptions are denied.






Footnote # 1 for 55 FLRA No. 117

   5 C.F.R. § 335.103(b)(4) provides, in pertinent part: "In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals."


Footnote # 2 for 55 FLRA No. 117

   5 U.S.C. § 2302(b)(11) provides, in pertinent part, that it is a prohibited personnel practice to "take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles[.]"


Footnote # 3 for 55 FLRA No. 117

   5 U.S.C. § 2302(b)(5) provides, in pertinent part, that it is a prohibited personnel practice to "influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment[.]"


Footnote # 4 for 55 FLRA No. 117

   5 U.S.C. § 2302(b)(6) states, in pertinent part, that it is a prohibited personnel practice to

grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.

Footnote # 5 for 55 FLRA No. 117

   On July 21, 1998, the Authority issued an Order, notifying the Union that it had failed to comply with Authority regulations because, as relevant here, the Union did not include a statement of service with its exceptions. The Order gave the Union until August 4, 1998 to cure this deficiency, and the Union subsequently filed a statement of service.


Footnote # 6 for 55 FLRA No. 117

   The Union actually cites 5 U.S.C. § 2302(b)(1), but it quotes the language of 5 U.S.C. § 2301(b)(1).


Footnote # 7 for 55 FLRA No. 117

   44 BIAM 335.1.19.G provides, in pertinent part: "Within two weeks after a selection has been made, the appointing office will inform the non-selected candidate whether they were among those on the certificate and will give the name of the candidate selected for the position." Union Post-Hearing Brief at 10.


Footnote # 8 for 55 FLRA No. 117

   44