National Federation of Federal Employees, Local 1904 (Union) and U.S. Department of Veterans Affairs, Medical Center, New Orleans, Louisiana (Agency)

[ v56 p196 ]

56 FLRA No. 22

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1904
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, NEW ORLEANS, LOUISIANA
(Agency)

0-AR-3210

_____

DECISION

March 21, 2000

____

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

Decision by Member Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Ralph E. Pelhan 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 did not file an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency preselected a particular individual for a position and denied the grievant a fair opportunity to compete for that position. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Agency's deputy chief of staff (hereinafter "the selecting official") created an institution-wide case management program. In so doing, he consulted a case management expert, who was the spouse of a doctor at the hospital. The selecting official had previously met the case management expert once, at a social function.

      Subsequently, the Agency announced a position vacancy for a Performance Improvement Coordinator. The announcement did not state whether or not the position was supervisory. Several individuals, including the grievant and the case management expert, applied for the position.

      The selecting official established a rating and ranking panel, consisting of three Agency officials, to interview applicants. The panel conducted telephone interviews with the applicants, and invited the three highest-ranked individuals to participate in a second round of interviews. The panelists unanimously found the case management expert to be the most qualified candidate, and gave her a perfect rating. The grievant was not ranked as one of the top three candidates, and thus, was denied a second interview.

      When the selecting official subsequently hired the case management expert (hereinafter "the selectee"), the grievant filed a grievance alleging that this constituted preselection, and that the selection process violated the parties' agreement. When the grievance was unresolved, it was submitted to arbitration.

      The issues before the Arbitrator were as follows:

Did the selection process used by the Employer to fill the Performance Improvement/Case Management Nurse position violate the terms of the Parties' Labor-Management Agreement? [and]
Did the Employer violate the Labor-Management Agreement when it failed to select [the grievant] for the position of Performance Improvement/Case Management Nurse?

Award at 1.

      The Arbitrator found that no preselection occurred. In this regard, the Arbitrator determined that the rating and ranking panel had found the selectee to be the most qualified candidate, and had not ranked the grievant among the top three candidates. The Arbitrator further found that, although there was a "potential conflict of interest" because one of the panel members was a subordinate of the selectee's husband, no one exerted improper influence over the panel's decision. Id. at 23.

      The Arbitrator rejected the Union's argument that the selection process conflicted with the Agency's past practices in three respects. First, the Arbitrator found that, even assuming the Agency had a binding past practice of posting vacancy announcements internally before posting them outside the Agency, the Union did not introduce sufficient evidence to support its claim that the Agency acted inconsistent with that practice. Second, the Arbitrator found that there was insufficient evidence to demonstrate that the Agency had a binding past practice of considering in-house candidates prior to considering outside candidates. Third, the Arbitrator found that there was insufficient evidence to demonstrate that the Agency had a binding past practice of indicating, in [ v56 p 197 ] vacancy announcements, whether the advertised positions were supervisory.

      Finally, the Arbitrator determined that, although the Agency violated the parties' agreement by interviewing candidates by telephone, rather than in person, the violation did not disadvantage any particular candidate, including the grievant. The Arbitrator concluded that a re-running of the selection process was unwarranted. However, the Arbitrator stated that the award "should be viewed as having put the [Agency] on notice that any future violations of this nature could result in those interviews being declared invalid." Id. at 23.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Union's Exceptions

      According to the Union, the award is contrary to law. Specifically, the Union contends that the Arbitrator's finding of no preselection is inconsistent with 5 U.S.C. §§ 2301(b)(2) and (8), and 2302(b)(2),(5),(6),(7), and (12). [n1]  In this regard, the Union quotes the Arbitrator's finding that a potential conflict of interest existed because one of the panel members was the subordinate of the selectee's husband. The Union questions the Arbitrator's reliance on that panel member's testimony that no pressure was placed on her to choose the selectee, claiming that the testimony was self-serving.

      The Union also asserts that the Arbitrator's finding of no preselection is "contrary to the contract[.]" Exceptions at 5. In addition, the Union argues that the award fails to draw its essence from the parties' agreement because the Arbitrator failed to recognize that the Agency violated past practices requiring it to: (1) interview and consider in-house candidates prior to interviewing or considering outside candidates; (2) advertise the vacancy announcement in-house prior to advertising it outside of the Agency; and (3) state, in the position description, whether the position was supervisory.

      With regard to the Arbitrator's finding that the Agency violated the parties' agreement by conducting phone interviews, the Union claims that the Arbitrator erred by failing to provide a remedy for that violation. The Union also claims that the Arbitrator's failure to issue the award until nearly 8 months after the hearing -- despite a provision in the parties' agreement requesting that awards be issued within 30 days -- is inconsistent with "normal accepted practice." Id. at 7. In addition, the Union argues that the award is incomplete and that there were "too many issues" that the Arbitrator failed to address. Id.

      Finally, the Union contends that the Arbitrator failed to consider pertinent testimony, and erred by relying on unsubstantiated testimony by the selecting official concerning the selectee's professional reputation and the reputation of the selectee's previous employing agency.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law.

      The Union claims that the Arbitrator's finding of no preselection is contrary to 5 U.S.C. §§ 2301(b)(2) and (8), and 2302(b)(2), (5), (6), (7) and (12). The Authority reviews the questions of law raised by the award and the Union's exceptions 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, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. 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). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.

1.     5 U.S.C. § 2301(b)(2) and (8).

      The Authority has held that the merit system principles set forth in 5 U.S.C. § 2301 are hortatory and not self-executing. See, e.g., National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, Southwest Region, Dallas, Texas, 54 FLRA 706, 713 (1998). As such, those principles do not, by themselves, form a basis for finding that an arbitral award is contrary to law. Applying this precedent, the Union's citation to the merit system principles set forth in 5 U.S.C. § 2301(b)(2) and (8) does not, without more, provide a basis for finding the award deficient. Accordingly, we deny the exception. [ v56 p 198 ]

2.     5 U.S.C. § 2302(b).

      The Union cites various subsections of 5 U.S.C. § 2302(b). Because each of the cited subsections contains a distinct legal standard, we address each of those subsections separately below.

a.     2302(b)(2).

      Under section 2302(b)(2) of title 5, an employee who has authority to take or direct personnel actions may not consider any recommendation or statement regarding an individual who is under consideration for a personnel action, unless that recommendation or statement is based on "the personal knowledge or records of the person furnishing it[,]" and consists of either "an evaluation of the work performance, ability, aptitude, or general qualifications of such individual[,]" or "an evaluation of the character, loyalty, or suitability of such individual[.]" 5 U.S.C. § 2302(b)(2).

      The Arbitrator found that there was no evidence that, in rating the selectee, the panel members relied on anything other than their personal understandings of the selectee's qualifications. See Award at 35. In this connection, the Arbitrator specifically determined that the panel member who is the subordinate of the selectee's husband credibly testified that she considered the selectee to be the best qualified candidate. See id. at 24. We defer to the Arbitrator's factual findings, which support a conclusion that the award is consistent with 5 U.S.C. § 2302(b)(2). Accordingly, we deny the exception.

b.     2302(b)(5).

      Establishing a violation of 5 U.S.C. § 2302(b)(5) 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. 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) (BIA Albuquerque) (citing Special Counsel v. Brown, 61 M.S.P.R. 559, 565 (1994)).

      The Union claims that the selecting official informed the grievant that she was not qualified for the position, and that he intended to hire someone from outside the Agency. However, the Arbitrator did not make any finding in this regard. Moreover, even assuming the truth of the Union's claim, there is no evidence that the selecting official made such statements with the intent of injuring the grievant's prospects, or impairing the selectee's prospects, for employment. In this connection, the panel, not the selecting official, found that the grievant did not merit a second interview, and the panel members unanimously found the selectee to be the most qualified candidate. As such, the Union has not established that the award is inconsistent with 5 U.S.C. § 2302(b)(5). Accordingly, we deny the exception.

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 a preference to a particular individual for the purpose[] of improving her prospects for employment." BIA Albuquerque, 55 FLRA at 672 (citing Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993)). Section 2302(b)(6) does not require that an unauthorized promotion actually result in an advantage, but only that the purpose of the personnel action be to give an advantage. See BIA Albuquerque, 55 FLRA at 672 (citing Special Counsel v. DeFord, 28 M.S.P.R. 98, 104-105 (1985)). Where an arbitrator finds that there is no evidence indicating that the agency's consideration of an applicant was the result of a personnel action intended to give the applicant a preference, the Authority will hold that the award is not contrary to section 2302(b)(6). See BIA Albuquerque, 55 FLRA at 672.

      The Arbitrator found that there was no evidence that the Agency's consideration of the selectee was the result of a personnel action intended to give her a preference. See Award at 36. Specifically, the Arbitrator found that no one spoke with the rating panel members about the candidates' qualifications, or attempted to influence their rankings. See id. at 33. Additionally, as discussed above, the rating and ranking panel unanimously rated the selectee the most qualified candidate. We defer to the Arbitrator's factual findings, which support a conclusion that the award is consistent with 5 U.S.C. § 2302(b)(6). Accordingly, we deny the exception.

d.     2302(b)(7).

      Section 2302(b)(7) of title 5 prohibits an agency employee with the authority to take or direct personnel actions from appointing, employing, promoting, advancing, or advocating for appointment, employment, promotion, or advancement, within that agency, "any individual who is a relative" of that employee. 5 U.S.C. § 2302(b)(7).

      The Arbitrator did not find, and the Union does not argue, that the selecting official, or any of the members of the rating and ranking panel, are related to the selectee. Although one of the panel members reports to [ v56 p 199 ] the selectee's husband, the Arbitrator found that there was no evidence that the husband took any actions to promote his wife's selection. In this connection, the Arbitrator credited that panel member's testimony that no pressure was placed on her to choose the selectee, and that she sincerely believed the selectee was the most qualified candidate. See Award at 24. We defer to the Arbitrator's factual findings, which support a conclusion that the award is consistent with 5 U.S.C. § 2302(b)(7). Accordingly, we deny the exception.

e.     2302(b)(12).

      If a party claims that a prohibited personnel practice was committed under 5 U.S.C. § 2302(b)(12), 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 merit system principle. See BIA Albuquerque, 55 FLRA at 672 (citing Reimer v. Department of Interior, 71 M.S.P.R. 205, 210 (1996)).

      The Union has cited the merit system principles set forth in 5 U.S.C. § 2301(b)(2) and (8). Additionally, the Union has cited 5 U.S.C. § 2302(b)(2), (5), (6), and (7), which implement and directly concern the merit system principles set forth in section 2301(b)(2) and (8) of title 5. However, as discussed above, the Union has failed to establish a violation of any of the cited subsections of section 2302(b). Additionally, the Union has cited no other laws that implement or directly concern merit system principles. As the Union has not demonstrated a violation of a law implementing or directly concerning the cited merit system principles, the Union has not established a violation of 5 U.S.C. § 2302(b)(12). Accordingly, we deny the exception.

B.     The Award Is Not Based on Nonfacts.

      To the extent that the Arbitrator's finding of no preselection constitutes a "factual matter," we construe the Union's argument that the Arbitrator erred in finding no preselection as an assertion that the award is based on a nonfact. Additionally, insofar as the Union's argument that the award is inconsistent with the parties' past practices challenges the Arbitrator's factual findings, we construe that argument as an assertion that the award is based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is 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). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. See id. at 594 (citation omitted).

      As the issues of preselection and the parties' past practices were disputed before the Arbitrator, the Union's exceptions do not provide a basis for finding the award deficient. Accordingly, we deny the exceptions.

C.     The Award Draws its Essence from the Parties' Agreement.

      We construe the Union's assertion that the Arbitrator's finding of no preselection is "contrary to the contract" as an argument that the award fails to draw its essence from the parties' agreement. Exceptions at 5. The Union also asserts that the award is inconsistent with the parties' past practices and, therefore, does not "dr[aw] its essence from the collective bargaining agreement or standard labor relations practices." Id. at 6. In this regard, the Union cites Article 8, Section 5 of the parties' agreement, which provides that "[p]ast practices shall not be abridged as a result of not being enumerated in this Agreement." Id. at 4.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from 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, 575-77 (1990).

      The Union cites no provisions of the parties' agreement that prohibit preselection. Accordingly, the Union has not demonstrated that the Arbitrator's finding of no preselection fails to draw its essence from the parties' agreement.

      With regard to the Union's first past practice argument, the Arbitrator specifically found that there was insufficient evidence to support a finding that, in this case, the in-house notification was posted after the outside notice was posted. See Award at 8-9. As set forth above, the Union has not demonstrated that the Arbitrator erred in reaching that conclusion. Thus, even assuming that the parties had a binding past practice in this regard, the Union has not demonstrated that the Agency failed to act in accordance with that practice. Accordingly, [ v56 p 200 ] the Union has not established that the award fails to draw its essence from Article 8, Section 5 of the parties' agreement in this regard.

      With regard to the Union's second and third past practice arguments, the Arbitrator specifically found that there was insufficient evidence to demonstrate that these were binding past practices. See id. at 11, 17. As set forth above, the Union has not demonstrated that the Arbitrator's findings regarding the parties' past practices were erroneous. As such, the Union has not established that the award fails to draw its essence from Article 8, Section 5 of the parties' agreement in this regard.

      Based on the foregoing, we conclude that the Union has not demonstrated that the award fails to draw its essence from the parties' agreement, and we deny the exceptions. See Tidewater Virginia Federal Employees, Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 52 FLRA 316, 318 (1996).

D.     The Arbitrator Did Not Exceed His Authority.

      We construe the Union claims that the Arbitrator improperly declined to grant the Union's requested remedy, and failed to issue the award until 8 months after the hearing, as arguments supporting its assertion that the Arbitrator exceeded his authority.

      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 awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995). An arbitrator is not required to provide a party with a remedy, even when the arbitrator finds that a contractual violation has occurred. See U.S. Department of Health and Human Services, Social Security Administration, Region X, Office of Hearings and Appeals and American Federation of Government Employees, Local 3937, 49 FLRA 691, 696 (1994) (SSA, Region X).

      The Arbitrator determined that the Agency violated the parties' agreement by conducting phone interviews, rather than interviewing candidates in person. Nevertheless, the Arbitrator found that this contractual violation affected all of the candidates equally and, as such, it was unnecessary to re-run the selection process. Consistent with the Authority's decision in SSA, Region X, 49 FLRA at 696, the fact that the Arbitrator did not provide the Union with its requested remedy does not render the award deficient. We note, however, that the Arbitrator stated that the award constituted notice to the Agency that future violations could result in interviews being declared invalid. See Award at 23. This notice constitutes a remedy -- albeit not the requested remedy -- for the contractual violation. As the Union has submitted no evidence indicating that the Arbitrator resolved an issue not submitted to arbitration, disregarded specific limitations on his authority, or awarded relief to persons who were not encompassed within the grievance, the Union has not demonstrated that the Arbitrator exceeded his authority by declining to grant the requested remedy.

      With regard to the Union's assertion that the award was not timely issued, the Authority has held that an exception claiming, only after an award is issued, that the award is deficient because it was not timely, does not provide a basis for finding the award deficient. See American Federation of Government Employees, Local 2029 and U.S. Department of Defense, Defense Distribution Region West, Tracy Depot, Tracy, California, 48 FLRA 95, 100-101 (1993). Additionally, although the Union cites Article 7, Section 5 of the parties' agreement, that provision states only that the arbitrator "will be requested" to render a decision within 30 days. Exceptions, Joint Hearing Exhibit 1 at 17. It does not mandate, and the Union does not claim that it mandates, the issuance of awards within 30 days. Thus, the Union's assertion does not provide a basis for finding the award deficient.

      Based on the foregoing, we deny the exceptions.

E.     The Award Is Not Incomplete.

      The Union asserts that the award is incomplete and that the Arbitrator failed to address several issues. The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. See American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 49 FLRA 1508, 1509 (1994) (Hill Air Force Base). An arbitrator's failure to set forth specific findings, or to specify and discuss all allegations in a grievance, does not provide a basis for finding an award deficient on this ground. See id. In this connection, the Authority has held that the fact that an award does not mention a particular issue does not establish that the award is deficient. See Police Association of the District of Columbia and U.S. Department of the Interior, National Park Service, United States Park Police, 49 FLRA 1568, 1571 (1994). [ v56 p 201 ]

      The Union does not specify what issues the Arbitrator failed to address. However, even assuming that the Arbitrator failed to address all of the allegations that were before him, that does not provide a basis for finding the award deficient because it is incomplete. See Hill Air Force Base, 49 FLRA at 1509. Accordingly, we deny the exception.

F.     The Arbitrator Did Not Deny the Union a Fair Hearing.

      We construe the Union's assertions that the Arbitrator failed to consider pertinent testimony and improperly relied on unsubstantiated testimony as arguments that the Arbitrator failed to provide a fair hearing. An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See 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 Uni