National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, U.S. Army Armament Research Development and Engineering Center, Picatinny Arsenal, New Jersey

[ v55 p1166 ]

55 FLRA No. 190

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1437
(Union)

and

U.S. DEPARTMENT OF THE ARMY
U.S. ARMY ARMAMENT RESEARCH
DEVELOPMENT AND ENGINEERING CENTER
PICATINNY ARSENAL, NEW JERSEY
(Agency)

0-AR-3193

_____

DECISION

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

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 Roger I. Abrams 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 which challenged the Agency's determination not to select the grievant for promotion to a vacant position.

      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. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

      The grievant, a GS-13 General Engineer, applied for a vacant Rapid Force Projection Initiative Project (RFPI) Management Engineer position. He was one of fifteen candidates and exercised his right to priority consideration under the collective bargaining agreement. The Agency did not select him for the position. Instead, the Agency selected another candidate (the selectee) who earlier had been assigned to the position on a temporary basis for 120 days. The Union filed a grievance, alleging that the Agency failed to provide the grievant priority consideration.

      The grievance ultimately led to three arbitration awards: two awards by Arbitrator Stanley J. Siegel and a subsequent award by Arbitrator Abrams. The exceptions before the Authority were filed to the Abrams award.

      In his first award, Arbitrator Siegel concluded that the Agency violated the collective bargaining agreement by applying competitive promotion procedures to a priority consideration candidate. In this regard, Arbitrator Siegel found that the Agency panel of Subject Matter Experts (SMEs) erroneously considered the applications of the grievant and the other candidates together under competitive procedures. To remedy the violation of the agreement, Arbitrator Siegel directed the Agency to assemble a new panel of SMEs to reevaluate the grievant separately. Neither party appealed the award to the Authority.

      The Agency assembled a new panel of SMEs and that panel evaluated the grievant separately. The new panel rated the grievant "2" on each of his knowledge, skills and abilities (KSAs) for the position and found that he was a highly qualified candidate. [n2]  Award at 4. After the panel's decision, however, the Agency raised to "3" the KSAs rating level required to find an applicant to be a highly qualified candidate for the position, and did not forward the grievant's application to the [ v55 p1167 ] selecting official. Id. at 4-5. The Union grieved the Agency's decision to raise the KSAs rating level.

      In his second award, Arbitrator Siegel found that the Agency improperly changed the KSAs rating level required to find an applicant to be a highly qualified candidate. To remedy this improper action, Arbitrator Siegel directed the Agency to submit the grievant's application to the selecting official. Neither party appealed the award to the Authority.

      The Agency submitted the grievant's application to the selecting official. The selecting official, among other things, evaluated the collective bargaining agreement, the job description and the crediting plan with the relevant KSAs, the grievant's application, and an interview of the grievant conducted by the selecting official. In view of that evaluation, the selecting official found that the grievant lacked the requisite KSAs to perform the major duties of the position. See id. at 7 and 18-19. In particular, the selecting official found that the grievant lacked sufficient experience in "the development and acquisition end" and with "smart munitions." Id. at 8. The Union filed a grievance, challenging the selecting official's decision that the grievant lacked the requisite KSAs to perform the major duties of the position.

      The grievance was submitted to Arbitrator Abrams, on the following stipulated issues:

Is the Union's claim that the Employer violated 5 U.S.C. [§] 2302(b)(6) properly before the Arbitrator? If so, did the Employer violate 5 U.S.C. [§] 2302(b)(6) in making a selection for the position in Merit Promotion Announcement 13-96? If so, what shall be the remedy?
Did the Employer violate Article 30.5c(3) when it failed to select [the grievant] for the position in Merit Promotion Announcement 13-96? If so, what shall be the remedy? [n3] 

Id. at 2.

      Arbitrator Abrams summarized the contentions made before him by the parties. The Arbitrator noted, among other things, the Union's contention that the evidence demonstrated that the selectee was preselected. According to the Arbitrator, the Union argued that the applicants for the position were not given an equal opportunity to participate in the promotion process. The Arbitrator also noted the Union's contention that the Agency violated the collective bargaining agreement when it failed to select the grievant. The Arbitrator pointed out that the Union claimed that the grievant satisfied the KSAs for the position. The Arbitrator also pointed out that the Union asserted that the selecting officer's memorandum providing justification for not selecting the grievant "was full of errors, misquotes, and ignorance of fact after fact." Id. at 13. As a remedy, the Union requested that the Agency select the grievant for the position.

      In addition, the Arbitrator noted, among other things, the Agency's contention that the Union presented no evidence supporting its allegation of preselection. According to the Arbitrator, the Agency claimed that it demonstrated that the grievant did not satisfy the KSAs for the position. The Arbitrator also cited the Agency's argument that the Arbitrator's role in reviewing the selection action "is not to make an independent judgment." Id. at 14.

      Arbitrator Abrams concluded that the Union's claim that the Agency violated 5 U.S.C. § 2302(b)(6) was properly before him. As to the merits of that claim, the Arbitrator concluded that, based on the evidence in the record, the Union did not establish that the Agency violated 5 U.S.C. § 2302(b)(6). The Arbitrator stated that 5 U.S.C. § 2302(b)(6) "prohibit[ed] the Agency from granting any preference or advantage to [the selectee] not authorized by law." Id. at 15. The Arbitrator found that the fact that the Agency had temporarily assigned the selectee to the position before he was selected permanently did not violate 5 U.S.C. § 2302(b)(6). The Arbitrator stated that it "is a regular occurrence in [the] [F]ederal [government]" to assign one of the candidates for a vacancy to fill that vacancy on a temporary basis. Id. at 16.

      The Arbitrator determined that he did not have to decide whether the selectee was "preferred" over other candidates because of the KSAs the selectee obtained during his temporary assignment in the position. Id. Nevertheless, the Arbitrator reasoned that, even assuming the selectee was provided preference because of the [ v55 p1168 ] KSAs he obtained, such preference did not affect the grievant's selection and is "irrelevant" because of the grievant's priority consideration status. Id. In this regard, the Arbitrator stated that, as a priority consideration candidate, the grievant is considered separately under priority consideration procedures and, if found qualified, would be selected, regardless of any preference for the selectee. In sum, the Arbitrator determined that "[d]espite its protestations, the Union has not established that the promotion was wired for [the selectee]." Id.

      Furthermore, Arbitrator Abrams concluded that the Agency did not violate Article 30.5c(3) of the collective bargaining agreement when it failed to select the grievant for the position. In this regard, the Arbitrator found that, under the collective bargaining agreement, an arbitrator's scope of review of challenges to selection actions is "limit[ed]." Id. at 20 n.4. The Arbitrator stated that the parties did not intend "to have their arbitrators sit as lay selecting officials weighing each piece of information long after the event and reaching an independent judgment on a candidate's qualification[s]." Id. The Arbitrator also stated:

One area where an arbitrator has competence is in reviewing the procedures followed during the process. (That is what Arbitrator Siegel did in the earlier phases of this case.) No one can criticize the procedures [the selecting official] followed. On the substance, the review must, by necessity, be more circumspect. Clear errors can, and should, be corrected. But an arbitrator would do harm to the integrity of the parties' complex personnel arrangement if he took it upon himself to decide each case on a clean slate.

Id.

      Arbitrator Abrams further found that, under the collective bargaining agreement, the selecting official must select a candidate "who has `priority consideration,'" unless the selecting official determines that the "`candidate lacks the specific knowledge and/or abilities essential to performance of the major duties of the position.'" Id. at 17. The Arbitrator stated that, "[i]f [the selecting official] acted in accordance with the contract, the Arbitrator should not disturb [the selecting official's] judgment." Id. at 20.

      The Arbitrator concluded that the selecting official was not "manifestly wrong" in determining that the grievant lacked the requisite KSAs to perform the major duties of the position. Id. The Arbitrator stated that the selecting official considered the grievant's application separately, and did not compare him to the selectee. See id. at 19. The Arbitrator found that the record supported the selecting official's determination that the grievant lacked sufficient experience in "the development and acquisition end" and with "smart munitions." See id. at 19-20.

      The Arbitrator noted and rejected the Union's argument that the selecting official "was flat out wrong[]" and that the grievant "had the `right stuff' for the RFPI job." Id. at 19. The Arbitrator also noted and rejected the Union's arguments that "pick[] apart" the selecting official's memorandum setting forth the justifications for not selecting the grievant. Id. In response to those arguments, the Arbitrator stated that "[t]here is a risk . . . of being lost in the minutiae." Id. The Arbitrator also stated that, although the grievant has had an impressive career at the Agency, "[t]he promotion is not a reward for lifelong service." Id. The Arbitrator further found that the record showed that the grievant "had some experience at the development end, but most of his career experience was at the production end." Id. at 19-20. The Arbitrator also found that, although the grievant had "work[ed] on a much earlier generation of smart munitions in the Copperhead program," the selecting official viewed that experience as "too little and too long ago[.]" Id. at 20.

      In summary, the Arbitrator stated as follows:

The Arbitrator can conclude based on all the evidence presented that a reasonable selecting official could find that [the grievant] lacked the "specific knowledge and/or abilities essential to performance of the major duties of the position." We can state with some certainty that [the grievant] lacked the technical expertise, particularly at the development end, to perform the essential requirements of the position.

Id. at 21. Therefore, the Arbitrator denied the grievance, but stated that the grievant's priority consideration status remained in effect.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award is contrary to 5 U.S.C. § 2302(b)(6). In support, the Union argues that the Arbitrator failed to apply the correct legal standard to analyze a violation of that statutory provision by failing to determine whether the Agency defined the requirements of the vacant position in a manner to grant the selectee a preference and advantage for selection. The Union asserts that it argued before the Arbitrator [ v55 p1169 ] that the Agency defined the requirements of the vacant position in a manner to grant the selectee a preference and advantage for selection. The Union notes that the Arbitrator found that the selectee's assignment to the position on a temporary basis prior to his permanent selection did not constitute preselection and that any preference for the selectee was irrelevant because the grievant was evaluated under priority consideration procedures. See Exceptions at 14. However, the Union asserts that those findings by the Arbitrator "do not relate to the legal standard used to determine a violation of the statute and do not address the Union's arguments as to how the violation occurred." Id.

      The Union maintains that it did not raise the issue of temporary assignment of the selectee to the position prior to his permanent selection. See id. at 15. Rather, the Union claims it raised the issue of the Agency defining the requirements of the position in a manner to grant the selectee a preference and advantage for selection.

      The Union argues that it introduced "clear proof" that the selection process violated 5 U.S.C. § 2302(b)(6), showing that "the minimum requirements for the position were set so that [the selectee's] prospects of promotion would be greatly improved, if not guaranteed, and the prospects for all others would be greatly diminished, if not eliminated entirely." Exceptions at 15-16. The Union asserts that Union Exhibit 2, a memorandum, dated July 1, 1996, in which the Agency responded to another candidate's complaints about the selection action, contains "Agency admissions that, prior to its advertisement of the vacancy, it did not believe anyone else was qualified for the position." Id. at 14. The Union asserts that Union Exhibit 2 also demonstrates "that the Agency believed that [the selectee] possess[ed] special qualifications and expertise so unique that it almost made him" a candidate who was qualified to bypass competitive procedures. Id. at 14-15.

      Furthermore, the Union contends that the award fails to draw its essence from the collective bargaining agreement on two grounds. First, the Union contends that the Arbitrator manifestly ignored the language of the agreement by placing the burden of proof on the Union to show that the Agency erred in finding that the grievant did not qualify for the position. The Union states that the agreement "creates a heavy presumption in favor of the selection of a priority [consideration] candidate" since the agreement provides that priority consideration candidates who are highly qualified should be selected. Id. at 17. Thus, according to the Union, the agreement places the burden of proof on the Agency, and not the Union, to demonstrate "that a priority consideration candidate lacks the requisite specific knowledge or abilities." Id.

      The Union states that the Authority previously has sustained awards in which arbitrators placed the burden of proof on the Agency to demonstrate that a priority consideration candidate lacked qualifications for a position. The Union cites Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 2006, 50 FLRA 578 (1995) (SSA) and 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) (DHSS).

      Second, the Union contends that the Arbitrator manifestly ignored the language of the agreement by limiting his scope of review of the challenge to the selection action to whether the Agency committed a clear mistake. The Union maintains that the Arbitrator "limited his review to the formalities of procedure followed by the selecting official" in that he evaluated the grievant's application against the position requirements, but ignored the Union's arguments and evidence that refuted the Agency's justifications for not selecting the grievant. Exceptions at 19-20. The Union asserts that the Arbitrator dismissed its arguments and evidence as "minutiae." Id. at 18.

      As a remedy, the Union requests that the Authority promote the grievant to the disputed position. Alternatively, the Union requests that the other candidates who were not selected be granted priority consideration.

B.     Agency's Opposition

      The Agency disputes the Union's contention that the award is contrary to law because the Arbitrator failed to apply the correct legal standard to analyze a violation of 5 U.S.C. § 2302(b)(6). The Agency argues that the Union has not supported its position that the requirements for the position were designed to advantage the selectee. The Agency adds that the Union is attempting to relitigate a matter that was raised before the Arbitrator.

      Further, the Agency disputes the Union's contention that the Arbitrator manifestly ignored the language of the agreement. The Agency argues that, while the collective bargaining agreement provides that justification is required for the nonselection of a priority consideration candidate, the collective bargaining agreement does not address how an arbitrator should review challenges to such selection actions. The Agency maintains that the Arbitrator's approach in this case was consistent [ v55 p1170 ] with a plausible reading of the relevant contract provision.

      The Agency states that the plain language of the agreement does not require the Arbitrator "to conduct a completely independent review of the grievant's qualifications," and substitute the Arbitrator's "judgment on technical matters for that of the selecting official." Opposition at 15. The Agency maintains that, in any event, the Arbitrator took into account the Union's arguments that the grievant was qualified for the position. See id. at 17.

IV.     Analysis and Conclusions

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

      This exception involves the award's consistency with law. We review the questions of law raised by the Union's exceptions and the Arbitrator's award 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)). In applying the 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.

      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." See National Federation of Federal Employees, Local 1658 and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque, New Mexico, 55 FLRA 668, 672 (1999) (quoting Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993)). One of the two examples of an unauthorized preference given in 5 U.S.C. § 2302(b)(6) is defining the requirements for any position in order to give preference to a particular individual for the purposes of improving that individual's prospects for employment.

      The Union has not demonstrated that the award is contrary to 5 U.S.C. § 2302(b)(6). The Union argues that the Arbitrator failed to apply the correct legal standard to analyze a violation of that statutory provision by failing to determine whether the Agency defined the requirements of the vacant position in a manner to grant the selectee a preference and advantage for selection. The Union asserts that it argued before the Arbitrator that the Agency defined the requirements of the vacant position in a manner to grant the selectee a preference and advantage for selection. The record, however, does not support the Union's claim to have raised that issue before the Arbitrator at the hearing or in its post-hearing brief (see Union Post-Hearing Brief at 4-6), and, therefore, the issue is not properly before the Authority. Moreover, we concluded that the Arbitrator's disposition of the specific 5 U.S.C. § 2302(b)(6) claim that was actually before him is not contrary to that statutory provision.

      The record establishes that, before the Arbitrator, the Union contended that both the temporary assignment of the selectee to the position prior to his permanent selection, and admissions made by the Agency in certain documents, demonstrate that the Agency preselected the grievant for the position. See Union Post-Hearing Brief at 4-6. The Arbitrator concluded that, based on the evidence in the record, the Union did not establish that the Agency violated 5 U.S.C. § 2302(b)(6). Specifically, the Arbitrator stated that "the Union has not established that the promotion was `wired' for [the selectee]." Award at 16. The Arbitrator found that the temporary assignment of the selectee to the position prior to his permanent selection was not for unlawful purposes under 5 U.S.C. § 2302(b)(6), and that it was consistent with "a regular occurrence in [the] [F]ederal [government]." Id. 15-16. In addition, the Arbitrator found that the grievant "lacked the technical expertise, particularly at the development end, to perform the essential requirements of the position." Id. at 21. In light of the factual determinations that the selectee's prior assignment was benign and that the grievant was not qualified, there is an insufficient basis to find a violation of law. Accordingly, the Union has not demonstrated that the award is contrary to 5 U.S.C. § 2302(b)(6).

      It is possible to construe the Union's exception to be an assertion that the Arbitrator exceeded his authority by failing to address one of the Union's claims. In particular, the Union alleges that the Arbitrator failed to address its contention that the Agency violated 5 U.S.C. § 2302(b)(6) by defining the requirements of the vacant position in a manner to grant the selectee a preference and advantage for selection. For the reasons stated below, we find no merit to the Union's argument.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or [ v55 p1171 ] awards relief to persons who are not encompassed within the grievance. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Union), 51 FLRA 1371, 1378 (1996). Nevertheless, "the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement." Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518-19 (1986).

      In this case, as relevant here, the issue stipulated by the parties was "did the Employer violate 5 U.S.C. [§] 2302(b)(6) in making a selection for the position in Merit Promotion Announcement 13-96?" Award at 8. Therefore, it is apparent that the issue, as stipulated, did not specifically concern whether the Agency defined the requirements of the vacant position in a manner to grant the selectee a preference and advantage for selection. In addition, as noted above, our review of the record does not reveal that the specific issue of defining the requirements was presented to the Arbitrator at the hearing or in the Union's post-hearing brief.

      In our view, the Arbitrator's interpretation of the issue before him -- focusing on preselection through prior temporary assignment -- was entirely reasonable. His decision is directly responsive to the issue as stipulated by the parties. Accordingly, the Arbitrator did not fail to resolve an issue submitted to arbitration. Based on the foregoing, we find that there is no basis on which to conclude that the Arbitrator exceeded his authority. Therefore, the exception provides no basis for finding the award deficient. We deny the exception.

B.     The Award Draws Its Essence from the Collective Bargaining Agreement

      The Union contends that the award fails to draw its essence from the collective bargaining agreement on two grounds. First, the Union contends that the Arbitrator manifestly ignored the language of the agreement by placing the burden of proof on the Union to show that the Agency erred in finding that the grievant did not qualify for the position. Second, the Union contends that the Arbitrator manifestly ignored the language of the agreement by limiting his scope of review of the challenge to the selection action to whether the Agency committed a clear mistake.

      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 agreement; (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.

1.     The Arbitrator's Determination of the Burden of Proof Draws Its Essence from the Collective Bargaining Agreement

      The Union has not established that the Arbitrator's determination of the burden proof fails to draw its essence from the collective bargaining agreement. The Union has not shown that the parties' agreement required the Agency to bear the burden of proving that it did not err in finding that the grievant did not qualify for the position. In the absence of any established burden of proof, the Arbitrator was free to determine which party was required to bear the burden of proof. See American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 52 FLRA 320, 324 (1996). While it is not clear from the award that the Arbitrator placed the burden of proof on the Union, as the Union claims, nothing would prevent the Arbitrator from doing so in this case. Cf. U.S. Department of Veterans Affairs, Medical Center, Providence, Rhode Island and Laborers' International Union of North America, Rhode Island Laborers' District Council, Local Union 1056, 49 FLRA 110, 113 (1994) (claim that arbitrator erroneously shifted the burden of proof from the agency to the union provided no basis for finding the award deficient). In these circumstances, the Union has not established that the Arbitrator's determination of the burden of [ v55 p1172 ] proof is implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement.

      The Union cites SSA and DHSS for the proposition that the Authority has previously sustained awards in which arbitrators placed the burden of proof on the Agency to demonstrate that a priority consideration candidate lacked qualifications for a position. However, SSA and DHSS are distinguishable from this case. The contract provisions concerning priority consideration in SSA and DHSS are worded differently from the contract provision in this case. Further, neither SSA nor DHSS involved exceptions that challenged the arbitrator's determination of the burden of proof, and the Authority did not address that matter in those decisions.

      Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement on this basis.

2.     The Arbitrator's Determination of the Standard of Review He Would Apply to the Grievance Draws Its Essence from the Collective Bargaining Agreement

      The Union has not established that the Arbitrator's determination of the standard he would apply in reviewing the selection action in this case fails to draw its essence from the collective bargaining agreement. Specifically, the Union has not shown that the parties' agreement required the Arbitrator to apply a particular scope of review. The Arbitrator found that, under the collective bargaining agreement, an arbitrator's scope of review of challenges to selection actions is "limit[ed]." Award at 20 n.4. The Arbitrator stated that the parties did not intend "to have their arbitrators sit as lay selecting officials weighing each piece of information long after the event and reaching an independent judgment on a candidate's qualification[s]." Id. In light of the fact that the Union has not shown that the parties' agreement required the Arbitrator to apply a particular scope of review in this case, the Union has not established that the Arbitrator's determination of the scope of review is implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement on this basis.

      Therefore, the exception provides no basis for finding the award deficient. We deny the exception.

C.     The Arbitrator Did Not Fail to Conduct a Fair Hearing

      In its exceptions, the Union maintains that the Arbitrator "limited his review to the formalities of procedure followed by the selecting official" in that he evaluated the grievant's application against the position requirements, but ignored the Union's arguments and evidence that refuted the Agency's justifications for not selecting the grievant. Exceptions at 18-19. The Union asserts that the Arbitrator dismissed its arguments and evidence as "minutiae." Id. at 18. We construe the Union's argument as a claim that the Arbitrator failed to conduct a fair hearing.

      The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to hear or consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).

      The Union has not demonstrated that the Arbitrator prejudiced the Union or affected the fairness of the proceedings as a whole. Even though the Arbitrator referred to the Union's evidence and arguments that refuted the Agency's justifications for not selecting the grievant as minutia, the record establishes that the Arbitrator did not ignore them, as the Union claims. The Arbitrator made numerous findings and conclusions regarding the Union's evidence and arguments. In this regard, the Arbitrator stated that, although the grievant has had an impressive career at the Agency, "[t]he promotion is not a reward for lifelong service." Award at 19. The Arbitrator found that "[t]he record shows that [the grievant] had some experience at the development end, but most of his career experience was at the production end." Id. at 19-20. The Arbitrator also found that, although the grievant "[had] work[ed] on a much earlier generation of smart munitions in the Copperhead program," the selecting official viewed that experience as "too little and too long ago[.]" Id. at 20.

      In light of these findings and conclusions, the Arbitrator did not refuse to consider evidence and arguments that refuted the Agency's justifications for not selecting the grievant. Therefore, the exception provides no basis for finding the award deficient. See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 55 FLRA 498, 501-02 (1999). We deny the exception. [n4] 

V.     Decision

      The Union's exceptions are denied. [ v55 p1173 ]


APPENDIX

Article 30, Section 30.5 provides in pertinent part:

Order of Placement Consideration:

b.     Selection will be subject to prior consideration of candidates entitled to special consideration in descending order as follows: . . .
(4)     Priority consideration after failure to receive proper consideration: . . .
c.     Methods of Application: . . .
(3)     Candidates in category 4 above are eligible for Priority Consideration. This includes careerists who are entitled to a one-time priority consideration for failure to be properly considered in the past. Such an employee must be properly considered for the next appropriate vacancy for which application is made before it is filled by competitive procedures. An appropriate vacancy for which application is made is one that meets all the following conditions: (a) the employee is considered a high quality candidate for the position, (b) the position is in the employee's stated area of availability, (c) the position is subject to the same promotion plan under which the error in consideration occurred. (Each career program is considered a separate plan). Justification for non-selection must be approved. Such approvals will normally be granted if it is demonstrated that the candidate(s) lacks the specific knowledge and/or abilities essential to performance of the major duties of the position....

Award at 3.



Footnote # 1 for 55 FLRA No. 190

   Chair Segal recused herself from this decision.


Footnote # 2 for 55 FLRA No. 190

   The KSAs were as follows:

KSA #1          Ability to formulate and execute strategic plans for overall mission accomplishment, i.e. short/intermediate/long-range plans and level of responsibility for planning, development of budget, resources, time and money required for conduct of program, milestones, and other technical date, etc.
KSA #2          Ability to communicate, persuade and resolve conflicts, i.e. type and level of contacts for organizational representation (internal to Picatinny and external, e.g. contractors, committees, program reviews, ad hoc working groups, public, multi-service DOD, foreign contacts, etc.) And level of authority/responsibility for organizations, types and levels of conflicts, etc.
KSA #3          Knowledge of and experience with the Material Acquisition Process and Lifecycle management of Smart munitions, Weapons and Fire Control.
KSA #4          Knowledge of Precision Munitions to include tube and gun launched applications, sensors, software, guidance and control, performance and system analysis etc.

Award at 6-7.


Footnote # 3 for 55 FLRA No. 190

   The pertinent text of the collective bargaining agreement is set forth in the Appendix to this Decision. Furthermore, 5 U.S.C. § 2302(b)(6) provides as follows:

(b)     Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--
. . . .
(6) 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 # 4 for 55 FLRA No. 190

   In a footnote in its exceptions, the Union states that certain of the Arbitrator's comments "suggests issues of arbitrator bias." Exceptions at 6 n.1. No further discernible argument with respect to this assertion is made. Without more, the Union's argument is merely a bare assertion that the Arbitrator was biased, and in accordance with Authority precedent, it must be denied. See, e.g., National Association of Government Employees, Local R4-45 and U.S. De