File 2: Opinion of Chairman Wasserman
[ v56 p344 ]
Opinion of Chairman Wasserman, dissenting in part:
I respectfully dissent from the majority regarding its decision to remand the award. As I stated in my dissent in DOD Norfolk, 54 FLRA at 186, I believe that an arbitrator should not be required to explicitly express the provision of the parties' agreement relied upon in formulating a remedy, when the intended meaning of the award is clear. Because the award in this case is clearly intended to enforce a provision of the parties' collective bargaining agreement, I would sustain the award.
In resolving this case, the evidence reviewed by the Arbitrator included the parties' post-hearing briefs and arguments, the testimony of witnesses, and the collective bargaining agreement. As framed by the Arbitrator, the issue concerned the fairness of the process that was used by the Agency to make its selection for filling a position vacancy. I find that the post-hearing brief submitted to the Arbitrator by the Union, and the findings made by the Arbitrator himself, demonstrate that the Arbitrator based the remedy for the Agency's unfair selection process upon a violation of Article 25, Section 6 of the agreement. [n1]
In particular, the Union's post-hearing brief argued that the rating panel designed by the Agency was biased in favor of the selectee. In this connection, the Union argued that the makeup of the panel created an appearance of impropriety because one member of the panel was rumored to be biased in favor of the selectee. In addition, the Union argued that the interview questions used by the panel favored the selectee's supply experience over the ship repair experience of the other applicants. See Union's Post-Hearing Brief, Attachment 3 to the Union's Opposition. In this regard, the Union argued that "Article 25, Section 6 of the Negotiated Agreement is very clear that the rating criteria may not be tailored to fit a particular employee." Id. at 9-10. The Union asserted that the Agency violated Article 25, Section 6 of the agreement by tailoring the rating criteria to fit the selectee's prior work experience. Similarly, the Arbitrator found that the rating panel should not [ v56 p345 ] have contained a member who was perceived to be biased in favor of any candidate, and held that the interview questions used by the selection panel should not have favored supply experience over ship repair experience. The Arbitrator concluded that the Agency violated the parties' agreement by running an unfair selection process.
The Arbitrator's reasoning clearly mirrors the argument that was before him in the form of the Union's post-hearing brief. That fact, coupled with the fact that the language of Article 25, Section 6 precludes the Agency from favoring specific applicants for positions, leaves no room to doubt that Article 25, Section 6 is the basis for the Arbitrator's determination that the selection process used by the Agency violated the parties' agreement. [n2]
I also find that the Arbitrator enforced Article 25, Section 6 as an arrangement under section 7106(b)(3) of the Statute. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 569-73 (1997) (Article 12, Section 4(G)) (provision specifying the qualifications of selection panel members was designed to protect employees by ensuring fair and objective ratings on their qualifications for performing work and constituted an arrangement under section 7106(b)(3) of the Statute). Under our precedent, I find that the award does not abrogate management's right under section 7106(a)(2)(C) of the Statute (see, e.g., Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 412 (1996) (Authority held that arbitrator's direction that appraisal board rerun selection process was not a basis for finding award deficient)), and that the award does not abrogate management's right under section 7106(a)(2)(B) of the Statute (see, e.g., American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, 45 FLRA 124, 132 (1992) (arbitrator's order that reappraisal action could not be overseen by the same supervisor whose conduct violated the agreement did not abrogate management's right to assign work)). Accordingly, I find that the award satisfies Prong I of the BEP analysis.
In addition, I find that the award satisfies Prong II of the BEP analysis. Here, as enforced by the Arbitrator, Article 25, Section 6 of the parties' agreement required the Agency to ensure that the interview questions used during the selection process were not biased in favor of any applicant. The Arbitrator explained that the selection process violated the agreement because "testimony and exhibits indicate" that "the interview questions unfairly favored [the selectee] over the grievant." Award at 9, 10-11. Based upon the Arbitrator's factual findings, I find that, had the Agency acted consistent with its obligations under Article 25, Section 6, the members of the selection panel would not have used interview questions that were biased in favor of any applicant. As directed by the Arbitrator, a proper rerun action must not include the same selection panel members whose conduct violated the parties' agreement in order to ensure compliance with its terms. A new, neutral selection panel thus remedies the improper conduct and constitutes a valid reconstruction of a proper selection procedure. See Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, AFL-CIO, 54 FLRA 1365, 1373-74 (1998) (a rerun action is a proper reconstruction if it is related to what the agency would have done under applicable requirements of law or a collective bargaining agreement); cf. Panama Canal Commission and District No. 1, Marine Engineers Beneficial Association, 54 FLRA 1161, 1174 n.10 (1998) ("[h]ad the [a]rbitrator specifically found that the members of the Appraisal Board exhibited improper favoritism, then the [a]rbitrator's award, directing the appointment of a new, neutral Appraisal Board, may have been a valid reconstruction.").
In sum, I find that the Arbitrator properly enforced Article 25, Section 6 as an arrangement under Section 7106(b)(3) of the Statute, and would deny the Agency's exceptions in full.
File 1: Authority's Decision in 56 FLRA No. 48
File 2: Opinion of Chairman Wasserman
Footnote # 1 for 56 FLRA No. 48 - Opinion of Chairman Wasserman
Article 25 of the parties' agreement, which is entitled Merit Staffing, contains 11 sections addressing the Agency's promotion and selection process. In pertinent part, Article 25, Section 6 states that "[r]ating criteria shall not be tailored to fit a certain employee or applicant." See Article 25, Attachment 1 to the Union's Opposition.
Footnote # 2 for 56 FLRA No. 48 - Opinion of Chairman Wasserman
The Arbitrator was charged with deciding whether the Agency "properly select[ed] for the position of Production Controller[.]" Award at 2. The Arbitrator found, as is clear in this case, that the Agency's selection process was improper. Contrary to my colleagues, I do not believe that it is productive to speculate whether the Arbitrator might have also found that the Agency violated any requirements other than Article 25, Section 6. Although the Union's post-hearing brief references 5 CFR 2635.101 and ¶ 4(b) of the Agency's merit staffing instructions (See Union's Post-Hearing Brief at 6, 7), the Union did not argue that the basis for the Arbitrator's remedy should be a violation of one or both of those provisions. Rather, the Union argued that "it is not even a requirement under [Article 25, section 6] that the bias be intended, merely that the criteria be, in fact, tailored for one employee . . . [a]s such, the [interview] questions and the testimony of the witnesses is sufficient to warrant sustaining the grievance." Union's Post-Hearing Brief at 10. As such, the record demonstrates that the Agency's violation of Article 25, section 6 is sufficient to sustain the award.