U.S. Department of Energy, Oak Ridge Operations Office, Oak Ridge, Tennessee and Office and Professional Employees International Union, Local 268

[ v55 p1293 ]

55 FLRA No. 206

U.S. DEPARTMENT OF ENERGY
OAK RIDGE OPERATIONS OFFICE
OAK RIDGE, TENNESSEE
(Agency)

and

OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 268
(Union)

0-AR-3203

_____

DECISION

January 31, 2000

_____

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

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 Horace W. Rice filed by the Agency under section 7122(a) of 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 granted the grievant reduction-in-force assignment rights to a management analyst position. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant was a GS-12 information dissemination specialist. Her position was abolished and she was released from her competitive level by reduction-in-force (RIF). In evaluating whether she had any assignment rights, the Agency determined that there was one GS-11 management analyst position encumbered by an employee in a lower tenure group for which the grievant met the minimum qualification requirements. However, the Agency concluded that the grievant could not satisfactorily perform the duties of the position without undue [ v55 p1294 ] interruption within the meaning of 5 C.F.R. § 351.702(a)(4). [n1]  Accordingly, the Agency denied the grievant placement in the analyst position, and the grievant retired in lieu of separation by RIF. The Union filed a grievance on the grievant's behalf disputing the Agency's denial of assignment rights.

      Before the Arbitrator, the personnel specialist who conducted the RIF testified that while the grievant met the minimum qualification requirements for GS-11 management analyst positions, the position encumbered by the employee in the lower tenure group included duties related to operational security and safeguards. Consequently, the specialist requested a determination of whether it was possible for someone without the required knowledge of operational security to be able to satisfactorily perform without undue interruption. Management determined that the extent of training and experience required for the position was such that an employee without the requisite knowledge could not perform the required functions of the job without undue interruption. Management further determined that the grievant did not possess the requisite knowledge and that consequently, she was not qualified for assignment.

      The Union contended that the grievant had the requisite knowledge of operational security and safeguards to perform the required work of the analyst position without undue interruption. The grievant testified that she had worked with security requirements for classified documents throughout her career and had served on the security operations committee for a year. She stated that based on the position description, she could perform the major duties because she had performed them before. The Union also noted that the performance standards for the analyst position did not specify any security knowledge for the position. In addition, the Union disputed a management exhibit introduced as a justification of the security requirements for the position because it was not evident whether the justification was prepared for the RIF or for the arbitration. The Union further maintained that the incumbent of the analyst position worked at a shopping center prior to being hired and had no operational security experience and that she had received only 30 days of on-the-job training before being allowed to perform the job alone.

      The Arbitrator determined that the grievant had bumping rights to the analyst position. The Arbitrator noted that management asserted that the position required knowledge of operational security that the grievant could not perform or learn within 90 days, but that the Union countered this assertion by noting that the grievant satisfied the minimum qualification requirements for a GS-11 management analyst position. In the Arbitrator's view, by determining that the grievant was minimally qualified, management was saying that the grievant had the capacity and adaptability for the job, but needed more training to become proficient. In terms of when the grievant could become proficient, the Arbitrator determined that she had the skills and experience to be able to become reasonably proficient within 90 days.

      In making this determination, he rejected management's reliance on the grievant's lack of sufficient knowledge of operational security. He found that because the performance standards of the position did not mention any requirement for operational security knowledge, such requirements could not disqualify the grievant. He also rejected management's reliance on the exhibit it had introduced as a justification of the security requirements of the position. He found that the exhibit was unpersuasive because it was not evident when it was created.

      In sum, the Arbitrator was persuaded that the evidence supported that the grievant was capable of satisfactorily performing the duties of the analyst position without undue interruption within the meaning of section 351.702. In particular, he emphasized the evidence that the incumbent of the position had been hired for the position with no operational security experience from a job in a shopping center and had been allowed to perform the analyst position alone after only 30 days of on-the-job training. In his award, he sustained the grievant's request to bump into the disputed GS-11 management analyst position. [n2] 

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient on three grounds.

      First, the Agency contends that the award is contrary to 5 C.F.R. part 351. The Agency argues that the award conflicts with section 351.702(a)(4) because the Arbitrator misconstrued the definition of "undue interruption." The Agency also argues that the Arbitrator interpreted the section "to mean that if an employee [ v55 p1295 ] meets minimum qualifications for the position the Agency must determine that no undue interruption will occur." Exceptions at 10 (emphasis in original).

      The Agency maintains that the Arbitrator misconstrued the definition of "undue interruption" because the grievant did not have the "special skills" needed to satisfactorily perform the duties of the disputed analyst position without undue interruption within the meaning of section 351.702(a)(4). The Agency claims that the Arbitrator erred by refusing to consider the operational security duties of the analyst position as clearly set forth in the position description in determining whether the grievant could perform without undue interruption. The Agency notes that under decisions of the Merit Systems Protection Board (MSPB), the duties and responsibilities of the official position descriptions have been, and continue to be, a necessary means by which to determine the composition of the competitive level. The Agency asserts that the Arbitrator's determination is deficient because the Arbitrator ignored the testimony presented as to the grievant's lack of experience and training and because the Arbitrator could not use the fact that generic performance standards did not specify the operational security duties of the position as a basis for refusing to address whether the grievant possessed the requisite operational security knowledge and skills.

      The Agency further maintains that the Arbitrator's determination that the grievant could satisfactorily perform the duties of the position without undue interruption because she met the minimum qualifications of a GS-11 management analyst is contrary to MSPB case precedent. The Agency maintains that the MSPB has held that the undue interruption provision authorizes an agency, in appropriate circumstances, to deny assignment rights to an otherwise qualified employee.

      Second, the Agency contends that the award is based on nonfacts. The Agency asserts that the award is based on "three `findings:'" (1) the performance standards of the disputed analyst position did not mention the security duties of the position; (2) the Arbitrator's finding that the management exhibit, which he rejected as unpersuasive, was introduced to establish the security requirements of the analyst position; and (3) the Arbitrator's statement that the incumbent of the analyst position was performing the job alone after only 30 days of training. Id. at 10. As to the first finding, the Agency acknowledges that the standards do not reflect the security duties of the disputed analyst position because they are generic, but argues that the duties are found in the official position description. As to the second finding, the Agency argues that there is no support for the Arbitrator's characterization of the exhibit as establishing the security requirements of the position. As to the third finding, the Agency argues that it is unsupported and conflicts with unrebutted testimony cited by the Arbitrator.

      Third, the Agency contends that the award is based on evidence submitted after the hearing and without the knowledge of the Agency. The Agency maintains that the Agency and the Union submitted a copy of the parties' current collective bargaining agreement, dated December 1995, as joint exhibit 1. The Agency notes that the Arbitrator quotes in his award an Article 21 (Performance Appraisal), but the Agency maintains that the language quoted in the award is not found in the current agreement. The Agency claims that the language cited as Article 21, Sections 1-3 is from the parties' prior agreement, dated May 1983, but that such language was neither submitted as evidence nor testified to during the hearing. The Agency claims that Section 4 quoted in the award has never existed as part of any agreement between the parties.

      The Agency also explains that the Arbitrator contacted the Agency's representative after the arbitration hearing to clarify the Union's references to Article 21 in its post-hearing brief. The representative stated to the Arbitrator that Article 21 of the parties' 1995 agreement states only that the article would be negotiated when new regulations are issued.

      The Agency asserts that arbitration decisions must be based on evidence submitted at or before the hearing. In terms of this case, the Agency contends that the award references information contained in the Union's post-hearing brief on the Article 21 language of the prior agreement. Accordingly, the Agency claims that the award is deficient because "it is clear that the arbitrator, in reaching his conclusions, relied on information from both the obsolete negotiated agreement and an unidentified source, neither of which were presented at the hearing." Exceptions at 6.

B.     Union's Opposition

      In opposition, the Union contends that the Agency has failed to establish that the award is deficient.

      First, the Union argues that the award is not contrary to 5 C.F.R. part 351. The Union claims that the Agency is disagreeing with the Arbitrator's factual findings and his evaluation of the evidence and testimony in concluding that the grievant could satisfactorily perform the duties of the analyst position without undue interruption. The Union maintains that such disagreement cannot establish that the award is contrary to sections 351.701 or 351.702. The Union claims that the Arbitra- [ v55 p1296 ] tor clearly and consistently applied the proper interpretation and application of "undue interruption" and that the basis for the award is that management simply failed to present factual evidence that the grievant could not satisfactorily perform the duties of the position without such undue interruption.

      Second, the Union argues that the Agency fails to establish that the award is deficient as based on nonfacts. The Union claims that all three asserted nonfacts were discussed and disputed at arbitration and, consequently, cannot provide a basis on which to find the award deficient.

      Third, the Union contends that the Article 21 language from the 1983 agreement quoted by the Arbitrator was jointly submitted as part of the 1995 agreement exhibit and was the subject of testimony before the Arbitrator. The Union explains that when the Arbitrator contacted the union representative after the arbitration hearing, he reminded the Arbitrator that the parties had agreed to use the Article 21 language of the 1983 agreement as a joint exhibit and that he had argued to the Arbitrator at the hearing that such language was in full force and effect until renegotiated.

IV.     Analysis and Conclusions

A.     The award is not contrary to 5 C.F.R. part 351.

      When a party's exception challenges an arbitration award's consistency with title 5 of the Code of Federal Regulations, the Authority reviews the questions of regulation raised in the exception and the award de novo. See American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429 (1997). When applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the regulatory standard, based on the arbitrator's factual determinations. In making that assessment, the Authority defers to the arbitrator's underlying findings of fact. The findings are given deference because the parties have bargained for the facts as found by the arbitrator, not the Authority.

      For the reasons which follow, we conclude that the Agency fails to establish that the award is contrary to 5 C.F.R. part 351. We find that the Agency has misconstrued the award in contending that it is contrary to part 351. In our view, contrary to the contention of the Agency, the Arbitrator did not interpret part 351 "to mean that if an employee meets minimum qualifications for the position the Agency must determine that no undue interruption will occur." Exceptions at 10 (emphasis in original). We find no such ruling by the Arbitrator. Instead, the award, as a whole, demonstrates that he assessed the grievant's abilities, including, among other things, the Agency's determination that she was minimally qualified for GS-11 management analyst positions and weighed the incumbent's security experience and training. It was on the basis of this particularized, factual assessment that he determined that the grievant had the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the analyst position without undue interruption within the meaning of section 351.702(a)(4).

      We also find that the Arbitrator's legal conclusions are fully consistent with the definition of undue interruption under section 351.203  [n3]  and the qualification requirements of section 351.702(a)(4). Consistent with the definition of "undue interruption" set forth in section 351.203, the Arbitrator applied the 90-day standard of the definition in evaluating the degree of interruption.

      The Agency's exception fails to establish any regulatory deficiency. Instead, the exception disputes the Arbitrator's finding that the grievant possessed the necessary capability, adaptability, and special skills to satisfactorily perform the duties of the position within 90 days. In our view, this is a purely factual assessment to which we defer. Accordingly, we deny the exception. See American Federation of Government Employees, Local 701 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Pekin, Illinois, 55 FLRA 631, 635 (1999) (exception was denied because the exception was contradicted by the factual findings of the arbitrator); American Federation of Government Employees, Local 3475 and U.S. Department of Housing and Urban Development, 55 FLRA 417, 419 (1999) (exception, which contended that the award was contrary to the Statute, was denied because the union was disputing the "purely factual assessment" of the arbitrator).

      The Agency's position description arguments do not establish otherwise. The Agency argues that the Arbitrator erred because he refused to consider the operational duties as specifically set forth in the official [ v55 p1297 ] position description, as allegedly required by MSPB precedent. To the extent the Agency is arguing that the Arbitrator made the undue interruption determination without considering the operational security duties, we again find that the Agency has misconstrued the award. In our view, the award clearly shows an assessment of the grievant's capability, adaptability, and special skills in terms of operational security.

      Although the Arbitrator's assessment was not strictly guided by the official position description, the Agency fails to establish such a requirement. The Agency cites MSPB precedent holding that the position description is a necessary means by which to determine competitive levels. This reflects the requirement of section 351.403(a)(2) that competitive level determinations be "based on each employee's official position[.]" However, there is no such reference to position descriptions in the regulatory requirements concerning undue interruption, and the Agency cites no MSPB case precedent relating to official position descriptions and undue interruption determinations. Consequently, the Agency fails to establish any regulatory requirement on how the position description must be considered in making undue interruption determinations.

      Accordingly, we deny the Agency's exception. [n4] 

B.     The award is not deficient as based on a nonfact.

      To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. 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 AFB). The Authority will not find an award based on a nonfact on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. 48 FLRA at 594.

      The Agency fails to establish that the award is based on a nonfact. As to the first asserted nonfact (performance standards did not mention security duties), the Agency concedes that the Arbitrator's finding as to the performance standards is correct. Exceptions at 11 ("The Agency acknowledges that the performance standards for the Management Analyst position do not reflect specific duties or knowledge requirements of the position."). Consequently, no basis is provided for finding that the award is based on a nonfact. See National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Memphis, Tennessee, 52 FLRA 787, 793 (1996) (exception denied where excepting party failed to show arbitrator erred). As to the second asserted nonfact (characterization of exhibit as establishing the security requirements of the analyst position), the meaning and impact of the document were disputed at arbitration. Consequently, regardless of how the characterization is viewed, no basis is provided for finding that the award is based on a nonfact. See Lowry AFB, 48 FLRA at 594. As to the third asserted nonfact (incumbent was performing the job alone after only 30 days of training), this matter was contested before the Arbitrator and cannot provide a basis for finding that the award is based on a nonfact. See id.

      Accordingly, we deny the Agency's exception.

C.     The award is not based on evidence submitted after the hearing.

      Clearly, there is confusion in this case as to the appearance of the language of Article 21 of the parties' 1983 agreement in the Arbitrator's award. However, this is relevant only if the Agency has established that the Arbitrator relied on this language in determining that the grievant could satisfactorily perform the duties of the analyst position without undue interruption.

      The Agency has again misconstrued the award in contending that the Arbitrator relied on Article 21. We find that the Agency fails to establish that the undue interruption determination is based on the Article 21 language from the 1983 agreement. The award, as a whole, demonstrates that the Arbitrator's undue interruption determination is based on his application of the regulatory standards and his factual assessment of the grievant's capability, adaptability, and special skills within the meaning of section 351.702.

      Accordingly, we deny the Agency's exception.

Decision

      The Agency's exceptions are denied.



Footnote # 1 for 55 FLRA No. 206

   Under section 351.702(a)(4), to be qualified for assignment, an employee must have "the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption."


Footnote # 2 for 55 FLRA No. 206

   The Arbitrator denied the grievant's requests to bump or retreat into other positions, but the Union has not excepted to those portions of the award.


Footnote # 3 for 55 FLRA No. 206

   Section 351.203 defines "undue interruption" as

a degree of interruption that would prevent the completion of required work by the employee 90 days after the employee has been placed in a different position under this part. The 90-day standard should be considered within the allowable limits of time and quality, taking into account the pressures of priorities, deadlines, and other demands. However, a work program would generally not be unduly interrupted even if an employee needed more than 90 days after the reduction in force to perform the optimum quality or quantity of work.

Footnote # 4 for 55 FLRA No. 206

   Member Cabaniss believes that the Arbitrator misinterpreted 5 C.F.R. § 351.702(a)(4) by determining that finding an employee minimally qualified implies that the employee can perform the job without undue interruption. However, she agrees that the Arbitrator found, as a factual matter, that the grievant would be able to perform the duties of the analyst position in a reasonably proficient manner within 90 days. Based on this factual finding, Member Cabaniss