Social Security Administration, Chicago North District Office (Agency) and American Federation of Government Employees, Local 1346 (Union)

[ v56 p274 ]

56 FLRA No. 37

SOCIAL SECURITY ADMINISTRATION
CHICAGO NORTH DISTRICT OFFICE
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1346
(Union)

0-AR-3191

_____

DECISION

April 28, 2000

_____

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

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator James L. Stern 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.

      The Arbitrator sustained the grievance, determining that the Agency violated the parties' collective bargaining agreement in filling the temporary position of Adjudication Officer in the District Office, and ordered the initial selections be set-aside and the selection process be redone in accordance with the parties' agreement.

      For the reasons set forth below, we find that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      In an effort to expedite the processing of disability claims at the Administrative Law Judge (ALJ) level, the Agency created the new temporary position of Adjudication Officer (AO). In June of 1997 the Agency posted a vacancy announcement that stated it would be looking to hire up to 3 AOs at various locations. The vacancy announcement included a basic position description as well as the methods by which candidates would be evaluated.

      The Agency has a National Promotion Plan (the Plan) which details the procedures that the Promotion Committee uses when filling the AO positions. Under the Plan the Promotion Committee evaluates each candidate and assigns a point value based on the weights and factors for the position. A Personnel Management Specialist then puts together a best qualified list (BQ List) in alphabetical order and sends it to the selecting official. The Agency also has special rules under Section VIII.B. of the Plan that apply when a bargaining unit position is being filled. Section VIII.B. of the Plan provides:

When filling AFGE positions only, through the use of competitive promotion procedures, AFGE bargaining unit employees must receive special consideration, as outlined below.
The selecting officer will first consider all priority consideration candidates. The selecting officer must next consider only AFGE candidates on the BQ list for a period of 10 workdays, prior to considering candidates from outside the AFGE bargaining unit. The SPO will forward to the selecting officer the names and applications of those AFGE candidates who are on the BQ list. If the selecting officer decides to choose one of these candidates, he/she may do so immediately. If the selecting officer does not make a selection from among this group of candidates, the SPO will furnish the entire BQ list (including unit and nonunit candidates) for consideration after the 10-day waiting period expires. [Emphasis in original.]

      The parties' collective bargaining agreement also has a clause (Article 26, Section 7.B.) which pertains to the consideration of unit employees for job openings. That clause provides:

For a period of ten workdays prior to considering candidates from outside the AFGE bargaining unit, the Employer agrees to first consider for selection internal candidates.

Award at 5.

      The Promotion Committee ranked the candidates and a Personnel Management Specialist sent an initial best qualified list of 27 bargaining unit members to the selecting official. The selecting official ultimately chose one candidate from the Union list and one candidate from a subsequent non-Union list to fill the two [ v56 p275 ] vacancies. The grievant filed a grievance protesting her non-selection for either of the two AO positions.

      As the parties were unable to agree to a stipulated issue, the Arbitrator framed the issue as follows:

Did the Agency violate the Collective Bargaining Agreement in filling the temporary position of Adjudication Officer in the Social Security's Chicago North District office. If so, what is the remedy?

Award at 1.

      The Arbitrator felt that the key question to be resolved was "whether the grievant and other AFGE represented employees on the best qualified list were `considered' for the AO position." Award at 6. He noted that the Union viewed "considers" to mean that the Agency must select from the Union list unless no one on it was qualified. The Agency's view of "considers" was only that it must delay its decision for ten days for it to receive additional lists. Id. The Arbitrator discounted both interpretations and stated that consideration of the Union list must be "real and meaningful, not just a rote exercise supposedly meeting a contractual requirement." Id.

      The Arbitrator found that the Selecting Official did not first consider the Union list prior to making his selection. Id. Two key pieces of testimony at the hearing supported his conclusion that the Union list was not properly considered. The first was the Selecting Official's testimony that he wanted to see all of the lists prior to making his decision. Id. The Arbitrator felt this testimony "suggests that any gain from being on the first list is wiped out" and also makes clear that the Selecting Official "had no intention of selecting from the AFGE lists until he had seen the subsequent lists of non bargaining unit candidates." Id.

      The second piece of testimony was given by the Personnel Management Specialist in charge of sending all candidate lists to the selecting officials. She testified that a selection in the first ten days, based on just the Union lists, takes place only two or three percent of the time. Id. at 5. The Arbitrator felt this showed that meaningful consideration was not given in this and in other situations. Id. at 6-7.

      The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement because it did not give "first consideration" to the Union list. Id. at 7. The Arbitrator ordered the initial selections set aside and the selection for the AO positions redone in accordance with the current agreement. Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award: (1) fails to draw its essence from the parties' agreement; (2) is contrary to law, rule or regulation in that it violates management's right to select under section 7106(a)(2)(C) and is contrary to 5 C.F.R. § 335.103(b)(4); and (3) is based on a nonfact.

      First, the Agency maintains that the award fails to draw its essence from the parties' collective bargaining agreement and the National Promotion Plan. Exceptions at 2. The Agency alleges that the Arbitrator's award denies it the ability to select employees, who have been properly ranked and qualified, for promotion unless they are union candidates. Id. at 3. The Agency claims that the award does this by misinterpreting the "first consideration" clause in Article 26, Section 7.B. of the parties' agreement. Id. The Agency also cites to Section VIII.B. of the National Promotion Plan as support for this.

      Second, the Agency claims that the award violates 5 U.S.C. § 7106(a)(2)(C) because it interferes with its right to select. The Agency asserts that it has the right to select employees for positions as long as the selection is from among properly ranked and certified candidates or from any other appropriate source as long as the action is not prohibited by law or regulation. Id.

      The Agency also argues that the award is contrary to 5 C.F.R. § 335.103(b)(4), [n1]  which deals with agency promotion programs. The Agency alleges that the Arbitrator violated this regulation because his award did not allow management to not select from the "first consideration" list. Exceptions at 5.

      Finally, the Agency claims that the award is based on a nonfact because the Union list is not an "area of consideration." By finding the Union list to be a "area of consideration," the Agency alleges that the Arbitrator based his award on a nonfact, and that "but for" such a finding there would have been a materially different result. Id. at 6. [ v56 p276 ]

B.     Union's Opposition

      The Union contends that the Agency's essence claim fails to meet any of the requisite criteria that have been established in Authority case law. The Union claims that the Agency is merely disagreeing with the conclusions drawn by the Arbitrator and is attempting to relitigate the merits of the case before the Authority. Opposition at 6.

      The Union also argues that the award does not violate 5 U.S.C. § 7106(a)(2)(C) because the provision of the parties' agreement providing for "first consideration" is an arrangement for employees that are adversely affected by management's right to select. Id. at 7. Further, the Union asserts that the Arbitrator did not remove management's right to select, he only required that the Agency give real and meaningful consideration to the Union list of best qualified applicants prior to considering other candidates. The Union cites to Department of Defense, National Guard Bureau, New York Army and Air National Guard, Latham, NY and New York State Council, ACT, 94 FSIP 27 (1994), stating that the Federal Service Impasses Panel (Panel) has concluded that "the modest benefit of first consideration for vacant bargaining-unit positions should be given [to] bargaining unit applicants." Opposition at 8. The Union asserts the Panel has consistently found that first consideration clauses are appropriate arrangements as long as they do not prevent management from timely considering other applicants or expanding the area of consideration. Id.

      Finally, the Union contends that the Agency's nonfact claim is incorrect. The Union claims that the term "area of consideration" as used by the Arbitrator is a term of art. Id. The Union states that to prove an award is based on a nonfact an excepting party must show that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. The Union argues that a central fact relied on by the Arbitrator is that the selecting official did not properly consider the Union list for ten days, and not that he referred to the Union list as an "area of consideration." Id. The Union claims the Agency's contention is nothing more than disagreement with the Arbitrator's finding of fact and does not otherwise provide a basis for finding the award deficient.

IV.     Analysis and Conclusions

A.     The Award Draws Its Essence From The Parties Agreement

      The Agency's essence exception challenges the Arbitrator's interpretation of the collective bargaining agreement. In reviewing challenges to 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) (SSA Baltimore). 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); SSA Baltimore; 54 FLRA at 159. 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." 34 FLRA at 576.

      The Agency disagrees with the Arbitrator's interpretation of the term "first consideration" in Article 26, Section 7.B. The Agency asserts that the award will require it to always select from the Union list, and therefore fails to draw its essence from the parties' agreement. The Agency also cites to Section VIII.B. of the Plan as support for the claim that the Agency always has the right to consider the entire BQ list prior to making a selection.

      The Agency's exception misinterprets the award. The Arbitrator stated that the collective bargaining agreement required that real and meaningful consideration must be given to employees on the Union list, but the Arbitrator expressly rejected interpreting the agreement (as argued by the Union) to require that someone on the Union list had to be selected unless none of those candidates was qualified. The Arbitrator's interpretation also corresponds with the language of the Plan which, like the parties' agreement, requires that the selecting official only consider the Union list for ten days before looking at the entire BQ list. The Agency [ v56 p277 ] has thus not shown that the Arbitrator's interpretation of the phrase "first consideration" in Article 26, Section 7.B. is an irrational, unfounded, or implausible interpretation of the parties' agreement or a manifest disregard of it. Therefore, the Agency has not shown that the award fails to draw its essence from the parties' agreement.

B.     The Award Is Not Contrary to Law, Rule or Regulation

      The Agency's next exceptions -- that the award is contrary to management's right to select and contrary to 5 C.F.R. § 335.103(b)(4) -- challenge the award's consistency with law, rule or regulation. The Authority reviews the legal questions raised by such 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 de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     The Award Is Not Contrary to Management's Right to Select under Section 7106(a)(2)(C)

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a) of the Statute, the Authority applies a two-prong test to determine if the award is deficient.

      Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II.

      Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. See U.S. Department of Veterans Affairs Medical and Regional Center Togus, Maine and American Federation of Government Employees, Local 2610, 55 FLRA 1189, 1195 (1999).

      An award that orders an agency to rerun a selection action for a particular position affects management's right to select under section 7106(a)(2)(C) of the Statute. See, e.g., Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 411-12 (1996). Consequently, the award affects management's right to select, and we must evaluate the award under the BEP framework.

      With regard to prong I, the Arbitrator was interpreting Article 26, Section 7.B. of the parties' agreement. The Authority has previously found provisions which require an agency to give priority consideration to employees within a bargaining unit, but that do not prevent management from timely considering other applicants or expanding the area of consideration, to be negotiable procedures under section 7106(b)(2) of the Statute. See Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 687 (1994). Accordingly, we find the award enforces a contract provision that was negotiated pursuant to section 7106(b). We therefore proceed to the prong II analysis.

      Under prong II, the question is whether the Arbitrator's remedy is a proper reconstruction of what the Agency would have done had it not violated the parties' agreement. Here, the Arbitrator did not order that the grievant be retroactively promoted. Instead, the Arbitrator ruled that the selection process should be rerun to ensure that the Agency gave real and meaningful consideration to the employees on the Union list.

      Ordering an agency to reaccomplish a selection action so as to accord with contractual requirements is an action satisfying prong II of the BEP analysis. See Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, AFL-CIO, 54 FLRA 1365, 1373 (1998) (prong II of BEP is satisfied when an arbitrator orders a selection rerun which did not conform to law or a collective bargaining agreement). Consequently, the award satisfies prong II of the BEP analysis. [ v56 p278 ]

2.     The Award Is Not Contrary To 5 C.F.R. § 335.103(b)(4)

      5 C.F.R. § 335.103(b)(4) provides, in pertinent part:

Selection procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources[.]

The Office of Personnel Management (OPM) added this to part 335 effective January 1, 1995. It previously had been set forth in Federal Personnel Manual (FPM) chapter 335 and had been provisionally retained when the FPM was abolished. See 59 Fed. Reg. 67,121 (1994).

      The Agency alleges that the Arbitrator's interpretation of the contract does not allow management the right to not select from the Union list, thereby conflicting with § 335.103(b)(4). However, the award requires only that the Agency give real and meaningful consideration to the Union list prior to looking at the entire best qualified list, and does not require the Agency to select from the Union list or the grievant to be selected. As the award does not require the Agency to select from the Union list, or prohibit it from expanding the pool of candidates, the award does not violate 5 C.F.R. § 335.103(b)(4).

C.     The Award Is Not Based On A Nonfact

      To establish that an award is based on 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). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, the fact that the appealing party disputes an arbitral finding does not provide a basis for finding the award is based on a nonfact. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996).

      The Agency claims that the Arbitrator wrongfully considered the Union list to be an "area of consideration" and "but for" his reliance on this nonfact there would have been a materially different finding in this case. Exceptions at 6. The Agency argues that the appropriate area of consideration, as shown by the National Agreement, is SSA region-wide and that it cannot be required to only select from the Union list. Id. However, contrary to the Agency's allegation, the Arbitrator did not equate the first consideration provision at issue with an "area of consideration." Instead, the Arbitrator stated that once it is accepted that an area of consideration can be established by negotiation, then the first consideration provision at issue can be enforced. Award at 7. Thus, the Agency has not established that the Arbitrator's reference to the Union list as an "area of consideration" is clearly erroneous and but for which a different result would have been reached by th