Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employees, Local 3627

[ v55 p834 ]

55 FLRA No. 144

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
ORLANDO, FLORIDA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3627
(Union)

0-AR-3162

_____

DECISION

September 24, 1999

_____

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

Decision by Member Wasserman for the Authority.

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator D.L. Howell 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.

      On remand from the Authority, the Arbitrator addressed the parties' request to consider an appropriate remedy consistent with the Authority's decision in Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employees, Local 3627, 54 FLRA 609, 614 (1998) (SSA Orlando).

      For the following reasons, 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

      In SSA Orlando, 54 FLRA 609, the Authority granted the Agency's exceptions to the initial award by Arbitrator George Munchus in this case. In the initial award, Arbitrator Munchus resolved the Union's grievance over the Agency's failure to select the grievant, a Hearing Office Clerk, for promotion to one of five vacant Legal Assistant positions. The grievant was among fifteen individuals who applied for a promotion to one of those vacant positions. All of the applicants, including the grievant, were placed on the Best Qualified List. However, the grievant was not one of the five selectees.

      Arbitrator Munchus determined that the Agency violated the "promotion principles" set forth in Article 26 of the parties' collective bargaining agreement because the selection process was "arbitrary and capricious." [n1]  SSA Orlando, 54 FLRA at 610. Based on his determination that the Agency's selection process was "arbitrary and capricious," the Arbitrator concluded that the "final [promotion] action taken by the Agency [was] without merit[,]" and that the grievant was entitled to promotion to a Legal Assistant position. Id. at 611. As a remedy, he ordered the grievant promoted with backpay as of the date the original selections were made.

      On review, the Authority found that Arbitrator Munchus' order of a retroactive promotion with backpay was contrary to the Back Pay Act because the Arbitrator failed to find that the grievant would have been selected but for the Agency's actions. The Authority modified the award by striking the order of a retroactive promotion with backpay. Although the Authority struck Arbitrator Munchus' remedy, the Authority left unaffected his finding that the selection process violated the parties' agreement. Thus, the Authority remanded the award to the parties for consideration of a remedy consistent with its decision in SSA Orlando.

      On remand, the parties were unable to reach a settlement and submitted the issue of an appropriate remedy to another arbitrator, Arbitrator D.L. Howell. Arbitrator Howell conducted a hearing. The parties permitted Arbitrator Howell to frame the issue. Arbitrator Howell framed the issue as follows:

What is the appropriate remedy for an Award by Arbitrator George Munchus . . . that will be consistent with the decision of the Federal Labor Relations Authority (54 FLRA No. 64) and the National Agreement between the parties?

Award at 3. [ v55 p835 ]

      Before Arbitrator Howell, the parties disputed the application of Article 26, Section 8(B)(1) and (2) of the collective bargaining agreement in fashioning an appropriate remedy. Relying specifically on Article 26, Section 8(B)(2), the Union argued that, because the promotion process was without merit, the promotion actions should be vacated and the grievant granted priority consideration. Citing Article 26, Section 8(B)(1), the Agency argued that the selectees should be retained in the positions pending a corrective action of priority consideration.

      Arbitrator Howell determined that, based on Article 26, Section 8(B)(2) of the collective bargaining agreement, the promotion actions should be vacated and the grievant granted priority consideration for the vacated positions. In reaching that determination, Arbitrator Howell found that Article 26, Section 8(B)(1) and (2) provides "for an employee to be entitled to priority consideration" in two distinct circumstances. Award at 10. In this regard, the Arbitrator found that Article 26, Section 8(B)(1) provides for a remedy of priority consideration where the erroneous selection action was "allowed to stand." Id. In contrast, Arbitrator Howell found that Article 26, Section 8(B)(2) provides for a remedy of priority consideration where the erroneous selection action was ordered vacated. Arbitrator Howell further found that, in the initial award, "[r]ightly or wrongly," Arbitrator Munchus did not grant the grievant priority consideration for a future vacancy, but rather, ordered the Agency to promote the grievant immediately to a Legal Assistant position that was encumbered. Id. at 11. Thus, Arbitrator Howell found that the remedy fashioned by Arbitrator Munchus "implicitly involve[d] [Article 26,] Section 8(B)(2)." Id.

      Consequently, relying on Article 26, Section 8(B)(2), Arbitrator Howell directed the Agency to vacate the promotion actions. He further directed that "the grievant shall be considered for promotion to [a] vacated position before candidates are considered under a new promotion or other placement action[.]" Id. at 13.

      Arbitrator Howell stated that his remedy was based on the findings of fact by Arbitrator Munchus that the selection process was arbitrary and capricious. He reasoned that it did not matter that the selectees might be qualified for the Legal Assistant positions because the remedy corrected an arbitrary and capricious selection process as found by Arbitrator Munchus. See id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient on two grounds. First, the Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency states that the Arbitrator misinterpreted Article 26, Section 8(B)(1) and (2) to require the Agency to vacate the promotion actions. The Agency evaluated and interpreted the intent of Article 26, Section 8(B)(1) and (2), and asserts that either portion of that contractual provision is intended to allow selectees in erroneous promotion actions to be retained in their positions pending a remedy of priority consideration.

      Second, the Agency contends that the award is contrary to law, rule and regulations. Specifically, the Agency argues that, because the Arbitrator did not find that the selectees originally could not have been properly promoted, his order to vacate the promotion actions is contrary to: (1) Federal Personnel Manual (FPM) Chapter 335, Appendix A, section A-4b and Authority decisions interpreting that FPM provision, (2) 5 C.F.R. § 335, and (3) 5 U.S.C. §§ 2301 and 2302.

B.     Union's Opposition

      The Union maintains that the Authority should deny the exceptions. The Union contends that the award draws its essence from the agreement and is consistent with law and regulations. The Union asserts that the Arbitrator's finding that the selection process was "without merit" constituted a finding that "all merit principles were ignored such that no one could have properly been selected from the lists." Opposition at 10 (emphasis deleted). 

IV.     Analysis and Conclusions

A.     The Award Draws its Essence from the Collective Bargaining Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agree- [ v55 p836 ] ment; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Agency challenges the determination of Arbitrator Howell that, based on Article 26, Section 8(B)(2), the promotion actions should be vacated pending priority consideration for the grievant. The Agency disagrees with the Arbitrator's interpretation of Article 26, Section 8(B)(1) and (2), entitled "Priority Consideration," arguing that either portion of that contractual provision allows selectees in erroneous promotion actions to be retained in their positions. [n2] 

      In reaching his result, Arbitrator Howell found that Article 26, Section 8(B)(1) and (2) provides "for an employee to be entitled to priority consideration" in two distinct circumstances. Award at 10. Arbitrator Howell found that Article 26, Section 8(B)(2), and not Article 26, Section 8(B)(1), provides for a remedy of priority consideration where the erroneous selection action was ordered vacated. In light of finding that, in the initial award, Arbitrator Munchus effectively ordered the promotion actions to be vacated, Arbitrator Howell found that Article 26, Section 8(B)(2) was controlling in this case. The Agency has not demonstrated that Arbitrator Howell's determination that, based on Article 26, Section 8(B)(2), the promotion actions should be vacated is implausible, irrational or in manifest disregard of the parties' collective bargaining agreement. Thus, the Agency has not established that the Arbitrator's interpretation of Article 26, Section 8(B)(1) and (2) fails to draw its essence from the collective bargaining agreement on this basis.

B.     The Award is not Contrary to Law, Rule or Regulation

      The Agency argues that, because the Arbitrator did not find that the selectees originally could not have been properly promoted, his order to vacate the promotion actions is contrary to: (1) Federal Personnel Manual (FPM) Chapter 335, Appendix A, section A-4b and Authority decisions interpreting that FPM provision, (2) 5 C.F.R. § 335, and (3) 5 U.S.C. §§ 2301 and 2302. If the arbitrator's decision is challenged on the ground that it is contrary to any law, rule or regulation, the Authority reviews the legal question de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. 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). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     FPM Chapter 335, Appendix A, section A-4b and Authority Cases Interpreting that FPM Provision are Not Applicable to this Case

      The FPM was abolished effective December 31, 1994. Specifically, FPM Chapter 335, Appendix A, section A-4b.(1)(b)(i) stated, in pertinent part, that an erroneously promoted employee "may be retained in the position only if. . . [r]econstruction of the promotion action shows that he or she could have been selected had the proper procedures been followed at the time the action was taken[.]" The principles set forth in that FPM provision have not been codified elsewhere.

      In the instant case, the events that give rise to the grievance occurred during 1996. In view of the abolishment of the FPM in 1994, FPM Chapter 335, Appendix A, section A-4b.(1)(b)(i) and Authority cases interpreting that FPM provision are not applicable to this case.                               

2.     The Award Is Not Contrary to 5 C.F.R. § 335

      5 C.F.R. § 335 is entitled, "Promotion and Internal Placement." The Agency does not specify the portion of this provision with which the award allegedly conflicts, and the record does not disclose a portion which is directly applicable to the Agency's claim. Thus, the Agency has not demonstrated that the award is contrary to 5 C.F.R. § 335.

3.     The Award Is Not Contrary to 5 U.S.C. §§ 2301 and 2302

      5 U.S.C. §§ 2301 and 2302 are entitled, respectively, "Merit system principles" and "Prohibited personnel practices." The Agency does not specify the portions of these provisions with which the award allegedly