U.S. Department of Defense, the Adjutant General, National Guard Bureau, Tennessee Air National Guard (Agency) and Association of Civilian Technicians, Music City Chapter (Union)

[ v56 p588 ]

56 FLRA No. 92

U.S. DEPARTMENT OF DEFENSE
THE ADJUTANT GENERAL
NATIONAL GUARD BUREAU
TENNESSEE AIR NATIONAL GUARD
(Agency)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
MUSIC CITY CHAPTER
(Union)

0-AR-3254

_____

DECISION

August 25, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Thomas K. Goldie 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 found that the Agency violated the parties' collective bargaining agreement in filling a position. The Arbitrator ordered the Agency to vacate the position and, if it decided to fill the position, to rerun the selection process in compliance with the parties' agreement. For the following reasons, we conclude that the Agency has failed to establish 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

      The Agency announced a vacancy in the position of Safety and Occupational Health Manager. The Agency determined that two of thirteen applicants were qualified and selected one for the position (hereinafter "the selectee"). The Union filed a grievance challenging the Agency's actions. When the grievance was not resolved, it was submitted to arbitration, where, as relevant here, [n1]  the Arbitrator set forth the issue as follows:

[D]id the Agency violate . . . Article 5 of the Labor Management Agreement or applicable regulations and statutes by the manner in which it selected a candidate and filled a vacancy on the Safety and Occupational Health Manager position . . . . If so, what is the proper remedy?

Award at 9. The Arbitrator concluded that, in two respects, the Agency acted improperly in filling the vacant position.

      First, the Arbitrator found that the Agency violated Article 5, Paragraph 8c of the parties' agreement when it failed to timely notify unqualified applicants or the Union that they had been deemed unqualified. [n2]  The Arbitrator stated that the intent of that contract provision "is to provide notification to applicants who are deemed to be not qualified and to the Union so that they can prepare and 'plead their cases' to the appropriate Agency Representative . . . before the vacancy is filled." Award at 32.

      Second, the Arbitrator found that the Agency violated Article 5, Paragraphs 7 and 8 of the parties' agreement, as well as paragraph 3-5 of the Agency's merit placement regulation  [n3]  because the selectee's application form did not demonstrate that he satisfied the specialized experience requirement for the disputed position. [n4]  [ v56 p589 ] The Arbitrator found, in this connection, that consistent with the parties' agreement and the Agency regulation, qualifications determinations must be made based on information supplied in an applicant's application form. Examining the selectee's application form, the Arbitrator found that only 12 months of qualifying experience -- in the selectee's most recent position, Safety Superintendent -- could be counted.

      The Arbitrator rejected the Agency's argument that additional experience could be counted based on the selectee's previous position as a Safety Specialist. According to the Arbitrator, experience in that previous position could not be counted because the selectee failed to include in the application form a description of his duties and responsibilities in that position. In addition, the Arbitrator considered testimony from Agency witnesses, including the selectee, that the selectee was qualified. The Arbitrator found that while the selectee's specialized experience might be sufficient to meet the requirement, the testimony did not specify the selectee's duties and responsibilities in his previous position and, as such, was not "sufficient to overcome the . . . violations" of the parties' agreement and the Agency regulation. Id. at 40.

      Based on the foregoing, the Arbitrator concluded that the Agency "improperly considered [the selectee] to have met the 36 months of specialized experience requirement for the. . . position based on his application form and related documents[.]" Id. at 41. The Arbitrator directed the Agency to vacate the position and, if the Agency determined to fill the position in the future, to rerun the vacancy in compliance with the parties' agreement and the Agency regulation.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the selectee was qualified for the position, and that the Arbitrator's finding to the contrary is a nonfact. The Agency claims that it is "inconceivable" that four of its staffing specialists could conclude that the selectee was qualified "while the [Arbitrator came up with a different conclusion." Exceptions at 3.

      The Agency also argues that the Arbitrator misapplied an Agency regulation concerning qualification requirements. [n5]  In this connection, the Agency contends that under the regulation, which provides that part time military service is considered as full time experience when determining qualifications for the disputed position, the selectee possessed the requisite specialized experience.

      The Agency also asserts that the award is deficient because it conflicts with management's rights to assign work and make selections under section 7106(a)(2)(B) and (C) of the Statute, respectively. The Agency claims, in this regard, that the Authority's two-prong test 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) (BE), has not been satisfied. In particular, according to the Agency, the Arbitrator's finding that the selectee was not qualified "does not reflect a reconstruction of what management would have done if management had acted properly." Exceptions at 5-6.

B.     Union's Opposition

      The Union contends that the Arbitrator's award is not based on a nonfact. The Union asserts that the Arbitrator properly relied on the vacancy announcement, the selectee's application and witness testimony in determining that the selectee was not qualified for the position.

      The Union also contends that because the Arbitrator found that the evidence failed to establish the qualification of the selectee, the Arbitrator's order that the selectee vacate the position pending a rerun of the placement action does not violate management's rights. The Union claims that arbitrators have the authority to assess the qualifications of applicants and to invalidate placement actions on the ground that the selectee was not shown to be qualified. [ v56 p590 ]

IV.     Analysis and Conclusions

A.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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 on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      In this case, the Arbitrator found that the selectee's application did not establish that he was qualified for the position. The Agency disputes this determination as a nonfact. However, the record establishes that this matter was disputed before the Arbitrator. In particular, the Arbitrator examined the evidence and testimony concerning the selectee's qualifications and determined that the selectee's application did not properly list the experience required for the position. See Award at 36-41. Further, the Arbitrator found that testimony regarding the selectee's experience, because it did not explain the duties and responsibilities of the selectee's previous position, was not "sufficient to overcome" the Arbitrator's finding that the application form did not demonstrate that the selectee was qualified for the position. Id. at 39-41. As the Arbitrator's finding resolved a matter disputed by the parties, the Agency provides no basis upon which to find the award deficient as based on a nonfact.

B.     The award is not contrary to the Agency regulation.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation. For purposes of section 7122(a)(1), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. See National Federation of Federal Employees, Local 1984 and U.S. Department of Defense, Defense Contract Management Command, Boeing Helicopters, Philadelphia, Pennsylvania, 56 FLRA 38, 40 (2000). In circumstances where a party's exceptions involve an award's consistency with law, rule, or regulation, the Authority must review the questions of law raised by the arbitrator's award and the party'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 an 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.

      The Agency argues that the Arbitrator misapplied an Agency regulation concerning qualification requirements, which provides that full time credit is given for part time military service. In this regard, the Agency contends that although the Arbitrator acknowledged the content of this regulation, he improperly found that the selectee did not possess the requisite specialized experience.

      Contrary to the Agency's position, the Arbitrator did not find that the selectee's part time service did not qualify as specialized experience under the regulation. Rather, he found that qualifications determinations must be made based on information supplied in an applicant's application form, and that based on the selectee's application form, only 12 months of qualifying experience could be counted. Under this interpretation of the contract and regulations, which the Agency does not contest, the Arbitrator was precluded from crediting the selectee with the required specialized experience because the selectee's application form did not include a description of his part time service duties and responsibilities. Accordingly, the Agency has failed to demonstrate that the award is inconsistent with the regulation.

C.     The award does not conflict with the Agency's rights to assign work and select employees under section 7106(a)(2)(B) and (C) of the Statute.

      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 BEP, 53 FLRA at 151-54. 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, 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. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would [ v56 p591 ] have done if management had not violated the law or contractual provision at issue. Id. at 154.

      The Agency argues that the award affects its rights to assign work and make selections under section 7106(a)(2)(B) and (C) of the Statute, respectively. With respect to the Agency's 7106(a)(2)(C) claim, an award that orders an agency to rerun a selection action for a particular position affects that management right. See Social Security Administration, Chicago North District Office and American Federation of Government Employees, Local 1346, 56 FLRA 274, 277 (2000) (SSA Chicago). Consequently, it is necessary to apply the BEP framework.

      With regard to prong I, the Arbitrator was interpreting and enforcing Article 5, paragraph 8 of the parties' agreement, as well as the Agency's merit promotion regulation. These provisions, as interpreted and enforced by the Arbitrator, require the Agency to: (1) notify the Union and applicants who are deemed unqualified that applicants have been determined to be unqualified; and (2) make qualifications determinations based on information contained in an employee's application form.

      With respect to the first requirement, the Authority has long held that provisions requiring an agency to provide notification of various matters constitute procedures under section 7106(b)(2) of the Statute. See, e.g., American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 531 (1987) (proposal requiring the agency to provide employees notice of action of promotion board held procedural under section 7106(b)(2) of the Statute); National Association of Government Employees, Local R4-75 and U.S. Department of The Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56, 58-60 (1986) (provision requiring the agency to provide employees advance written notice of disciplinary actions held procedural under section 7106(b)(2) of the Statute).

      With respect to the second requirement, provisions requiring use of particular forms to record and assess various types of information have been held procedural under section 7106(b)(2). See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration, Payment Center Locals, Local 1760, 36 FLRA 466, 470-74 (1990) (proposal establishing application form for vacancies held procedural under section 7106(b)(2) of the Statute); American Federation of Government Employees, Local 1923, AFL-CIO and Department of Health and Human Services, Office of the Secretary, Headquarters, Office of the General Counsel, Social Security Division, 21 FLRA 178, 181-84 (1986) (proposals requiring use of negotiated performance evaluation form held procedural under section 7106(b)(2) of the Statute).

      Applying the foregoing precedent, we find that the Arbitrator's award resulted from enforcement of provisions negotiated under section 7106(b). Thus, the award satisfies prong I of BEP. 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 vacated the improper action and ordered the Agency, if it wished to fill the position, to do so in accordance with the contract and regulations. This remedy reconstructs the status quo and leaves the selection decision to Agency officials. The Authority has consistently held that, where an arbitrator finds that a selection process did not conform to contractual requirements, the arbitrator may order that the selection be rerun or reconstructed as a corrective action. See Panama Canal Commission and Marine Engineers Beneficial Association, District No. 1, 56 FLRA 451, 460 (2000) (prong II of BEP is satisfied when an arbitrator orders a selection rerun which did not conform to law or a collective bargaining agreement); SSA Chicago, 56 FLRA at 277 (same). The award in this case is consistent with the Arbitrator's findings concerning the disputed elements of the selection process, and the award directs a reconstruction of what the Agency would have done had it acted properly.

      Accordingly, we find that the award also satisfies prong II of the BEP analysis, and thus does not violate the Agency's rights to assign work and select employees under section 7106(a)(2)(B) and (C) of the Statute. As such, the Agency's exception does not demonstrate that the award is deficient.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 92

   The Arbitrator also set forth, and resolved, several procedural issues and other claims. As none of these matters remains in dispute, we do not address them in this decision.


Footnote # 2 for 56 FLRA No. 92

   Article 5, Paragraph 8 provides, in pertinent part:

EVALUATION AND RANKING:
a.     Initial evaluating and rating will be accomplished by the Staffing Section . . . . All applicants will be clearly marked "Qualified" or "Unqualified" . . . .
b.     Applicants will be screened . . . to determine if they meet minimum qualifications . . . . Any applicant who does not meet the minimum mandatory qualification will not be rated. Each applicant who meets the minimum qualification will be rated . . . .
c.     All technician applicants who have been designated as "Unqualified" . . . will be notified . . . by mail. The Union will be notified of all applicants who are deemed unqualified.

Award at 4.


Footnote # 3 for 56 FLRA No. 92

   The record does not set out the exact terms of Article 5, Paragraph 7. Paragraph 3-5 of the Agency's regulation, entitled "Application Procedures,