U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, Defense Distribution Depot Red River, Texarkana, Texas (Agency) and National Association of Government Employees, Local R14-52 (Union)
[ v56 p637 ]
56 FLRA No. 102
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION CENTER
DEFENSE DISTRIBUTION DEPOT
RED RIVER, TEXARKANA, TEXAS
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-52
September 13, 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 Donald P. Goodman 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 a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) when it gave a temporary promotion to an employee other than the Grievant. The Arbitrator found that the employee who was promoted did not meet all of the qualifications for the position, contrary to the explicit requirements of the CBA.
The Arbitrator ordered that the selection be rerun, excluding both a candidate who previously declined the appointment, and the person selected, who was not qualified. The Arbitrator ordered that if the Grievant, who is presently retired, is selected, he would be entitled to be made whole, by retroactive pay, to the date of his retirement.
For the following reasons, we conclude that the Agency has not demonstrated that the award is deficient. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Decision
This case concerns a non-competitive assignment to a temporary not-to-exceed-one-year vacancy for a Motor Vehicle Operator Leader, WL-5703-08.
A number of unit employees had been assigned to lower graded positions. These employees were paid at the rates for their previous, higher graded positions, and were designated as repromotion eligible. The Agency is permitted to fill vacancies non-competitively with these individuals provided they meet minimum qualifications for the vacant position. According to the Arbitrator, among the repromotion eligibles were the Grievant, and two other unit employees. One of the others, like the Grievant, was in the Material Movement Branch, and is designated hereafter as "Employee M." Another employee, a Materials Handler Leader, was ultimately selected and is designated as "the Selectee." [n1]
The Agency considered both the Grievant and Employee M for the temporary WL-08 position. Employee M declined the position. The Agency stated that the Grievant had never before held a position equivalent to the WL-08 level. He had held a WG-10 position, one that was higher graded but apparently one that did not include leader responsibilities. The Grievant was a Motor Vehicle Operator.
The Agency then looked elsewhere in the Warehousing Division. It determined that the Selectee, a Materials Handler Leader, had held a position equivalent to the WL-08 position and assigned her to the WL-08 Motor Vehicle Leader position.
Subsequently, the Grievant filed a grievance claiming that the Selectee did not meet the requirements for the WL-08 position and that he--the Grievant--should have been assigned to the position.
B. Contract Terms
Article XXV Detail and Temporary Promotion
Section 6 Non-competitive temporary assignments to higher-graded positions will be accomplished on a rotational basis, to the extent practicable from [ v56 p638 ] among employees in the normal line of progression (at the next lower Level) in the immediate organization. Employees selected must meet the requirements of the prospective assignment.
Section 7 Employees temporarily assigned to perform duties of a higher graded position will be temporarily promoted when the assignment exceeds 30 days and the employee is qualified for the promotion. Competitive procedures will be used for temporary promotions exceeding 120 days.
Award at 1-2.
C. Arbitrator's Decision
Based on the record, the Arbitrator determined that the Selectee was not qualified to operate all vehicles driven by Motor Vehicle Operators at the time of her promotion, a fact known by Lawing, the selecting official. The Arbitrator disagreed with the Agency's argument that the CBA permits an employee who is otherwise qualified a reasonable time to obtain a required vehicle operator's license. The Arbitrator stated,
One of the requirements of the WL-08 position was to be able to drive all vehicles including a semi [a tractor- trailer truck]. At the time of her selection, [the Selectee] was not licensed to drive a semi. A review of the Job Description includes the requirement that she train others. She could not train others to drive semis if she was not licensed to drive one herself.
Award at 7. Whatever the Agency's arguments about how rarely the WL-08 position required its incumbent to drive semis, the Arbitrator ruled, "the job requirements were established by the Agency and once established the Agency must follow what it proscribes [sic]." Id.
The Arbitrator noted that Article XXV, Section 6 provides that "Employees selected must meet the requirements of the prospective assignment." Id. He stated that the CBA requires selectees to meet all the requirements of the job, and the Selectee did not possess all of the requirements.
The Arbitrator agreed with the Agency's argument that only the Agency determines whether employees are qualified to perform an assignment. However, he stated that an arbitrator is not precluded from reviewing those determinations and reversing a clearly erroneous evaluation of qualifications.
The Arbitrator also addressed the Agency's argument that he had no authority to reverse the actions of management, protected by section 7106(a). He stated that an agency's exercise of rights under section 7106 may be reversed "if it is found that management exercised such rights based on erroneous conclusions, evaluations, qualification assessments or information." Id. at 8.
The Arbitrator distinguished this case from National Labor Relations Board and National Labor Relations Board Union, 54 FLRA 56 (1998), which concerned an allegation that an award was contrary to law because it affected the agency's right to select from any appropriate source. The Arbitrator stated that the Union in this case is not contesting the Agency's right to determine from which source the vacancy will be filled but rather that once the source has been determined, the position is to be filled from among those eligible within that source. He stated that the Agency determined the source would be repromotion eligibles but it violated Article XXV, Section 6 by selecting an unqualified person. The Arbitrator referenced cases cited by the Agency, including U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134 (1993), which he stated held that management retained the right to assign employees under section 7106(a) including permanent as well as temporary assignments, and to determine the qualifications and skills needed to perform the work. Here, he stated, "the Union is not challenging that but rather that once the Agency determined the qualifications it chose a person who did not possess those qualifications." Award at 8.
The Arbitrator agreed with the Agency's argument that retroactive promotion and back pay would not be proper because there is no proof that the Grievant would have been selected. He also agreed that priority consideration for a future vacancy would not be appropriate since the Grievant is now retired. Therefore, the Arbitrator concluded that the only remedy would be a rerun of the selection, since he found that the selection action did not conform to the requirements of the CBA because the individual chosen was not qualified for the vacancy.
The Arbitrator ordered that the selection process be rerun using the same criteria as used when the Selectee was chosen. He ordered that Employee M not be considered, "as she declined the appointment." Id. at 9. Further, the Arbitrator directed that the Selectee will not be considered as she was not qualified at the time the vacancy was filled. Finally, the Arbitrator ordered [ v56 p639 ] that if the Grievant is selected, he shall be entitled to retroactive pay from November 1, 1998 the date of the improper selection, until the date of his retirement.
III. Positions of the Parties
A. Agency's Exceptions
1. The Award Is Contrary To Law, Rule or Regulation, and Does Not Meet the Requirements of BEP
The Agency contends that the award violates the right to assign work contained in section 7106(a)(2)(B). According to the Agency, this right includes the right to determine the particular qualifications and skills needed to perform the work "and to make judgments as to whether particular employees meet those qualifications[.]" Exceptions at 6.
The Agency asserts that it "had previously determined that the WL 5703-08 did not require having a CDL [commercial driver's license] to drive heavy equipment." Id. at 7, boldface type in original. It states further that the supervisor who chose the Selectee and "who held the same position previously as a supervisor did not have either [a CDL or a government license] when he took the position." Id.
The Agency argues that the question is whether the Selectee met the requirements of the assignment as determined by management, and that management's right to make the selection "can only be abridged if the arbitrator finds a direct connection between improper agency action and the failure of a specific employee to be selected." Id. at 8.
In addition, the Agency states that an arbitrator may not substitute his own determination of qualifications for management's, citing Bureau of Engraving and Printing, Washington, D.C. and International Association of Machinists, Franklin Lodge 2135, Washington, D.C., 32 FLRA 531 (1988) (BEP and IAM); Social Security Administration, Office of Hearings and Appeals and National Treasury Employees Union, Chapter 224, 31 FLRA 1172 (1988) (SSA).
Regarding the remedy, the Agency claims that under prong I of U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997) (BEP), "the contract provision _meets the requirement of the prospective assignment' as interpreted by the arbitrator affects management's right to assign work under section 7106(a)(2)(B). [Sic.] It denies management's right to determine what qualifications the assignment needed and whether it could allow a selectee, who had the ability to perform all of the other duties of the PD except for driving a semi, a short period of time in which to obtain one minor skill." Id. at 9.
In addition, the Agency argues that the Arbitrator's remedy does not relate to the selection of an "allegedly unqualified employee[.]" Id. The order not only denies the job to the person selected, but also the prior candidate who had rejected the offer of the position, according to the Agency.
The Arbitrator's order is to fill vacancies with repromotion individuals provided they meet minimum qualifications. The Agency contends that there were only two repromotion eligible employees in the division in which the position was located, Employee M, who declined the offer, and the Selectee. "By eliminating the only two repromotion eligibles in the division the arbitrator left the Agency with no other candidate to select thereby limiting management's right to select from other appropriate sources." Id. at 10. Therefore, claims the Agency, the award fails to meet the reconstruction test of prong II of BEP.
According to the Agency, filling the position rotationally is not what it would have done had it found the Selectee unqualified. "There is nothing in the remedy or award, which requires the Agency to choose other than repromotion eligibles for its source. Had the Agency intended to use that source it would have." Id.
2. The Arbitrator Exceeded His Authority
The Agency argues that the Arbitrator exceeded his authority by determining what the requirements of the prospective assignment were and that the Selectee did not meet those requirements. Therefore, it argues, the Arbitrator substituted his determination for that of management.
B. Union's Response to Exceptions
1. The Award Is Not Contrary To Law
According to the Union, the Agency elected, as was its right, to fill the position from any appropriate source. When it chose to make a non-competitive temporary promotion, the Agency was obligated to follow Article XXV, Section 6. That provision requires that the person be qualified for the position, and does not provide a grace period during which the person selected may obtain the necessary qualifications.
The qualifications of the work leader position include requiring the person selected to have a commercial [ v56 p640 ] driver's license and various other licenses reflecting their ability to operate tractor-trailers. The Union recites evidence that it contends establishes this fact. For example, the letter given to the Selectee after she received the position informed her that she had to obtain the licenses within thirty days. The Union also asserts that testimony of Agency witnesses confirmed this requirement. Thus, an Agency witness testified that she was given thirty days to get the licenses "and become . . . fully qualified for the position[.]" Opposition at 6, quoting Tr. at 73, emphasis added.
The Union states that "[t]here are numerous cases involving determinations by arbitrators as to whether or not an employee meets the established qualifications of a position. The agency's assertion that it has an unreviewable right to determine when a particular employee has met these qualifications is simply not true." Id. at 8.
The Union cites cases that it contends demonstrate that the Authority has upheld contract provisions that establish which employee among several who are qualified are to be selected for overtime, temporary duty assignments and other aspects of employment. [n2]
The Union asserts that
[s]ince the Grievant was unquestionably qualified to hold the temporary promotion, the only question is whether the agency complied with the procedures for choosing among qualified employees. In this case, that would be the rotational process described in Article XXV, Section Six."
The Union asserts that unfettered discretion by the Agency to decide whether an employee is qualified "would moot any type of overtime roster or claim for equitable distribution of overtime, assignment of leave or TDY." Id. at 9. If such were the case, the Union contends, there would be no way for it to bargain or grieve over overtime distribution because the Agency "would simply claim an unreviewable right to assign qualifications and assign work." Id.
The Union states that the Authority rejected such "unfettered management rights to determine qualifications" in U.S. Department of Defense, Defense Logistics Agency, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 55 FLRA 523 (1999) (Red River Army Depot). According to the Union, the arbitrator in that case rejected the Agency's argument that grievants were not as qualified as the person being assigned the overtime because they performed the same type of work during their regular hours. According to the Union, this "establishes that once an agency uses its discretion in establishing qualifications it may not informally alter that determination to suit its desires in a particular case." Opposition at 9.
The Union also sets out what it calls several examples of the Authority requiring an arbitrator to determine whether an employee met qualification standards for a position. For example, U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611 (1998).
The Union states that the Authority itself has made determinations on qualifications in setting aside temporary promotions where the employee at issue did not meet the requirements to hold the position to which management temporarily promoted them. U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 50 FLRA 383 (1995). It claims that the Authority also has upheld arbitration awards reversing erroneous determinations that an applicant was unqualified for the position despite the finding by an agency. U.S. Department of Health and Human Services, Family Support Administration, Washington, D.C. and National Treasury Employees Union, Local 250, 42 FLRA 347 (1991).
2. The Arbitrator Did Not Exceed His Authority
In response to the Agency's argument that the Arbitrator exceeded his authority, the Union states that the Arbitrator properly reviewed a determination as to whether a particular employee in fact meets the qualifications for particular work.
According to the Union, the remedy properly placed the Grievant in the same position he would be in but for the Agency's violation of the negotiated agreement. [ v56 p641 ]
IV. Analysis and Conclusions
A. The Award Is Not Contrary To Law
The Authority reviews the legal questions raised by an exception claiming that an award is contrary to law de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In doing so, 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) (NFFE Local 1437). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Authority's framework for examining whether an award violates management's rights under section 7106 is set forth in BEP, 53 FLRA at 151-54. Upon finding that an award affects a management right under 7106(a), 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 BEP, 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 Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 53 FLRA 1426, 1430-31 (1998).
1. The Award Affects Management Rights
a. The Award Affects Management's Right To Assign Work: Section 7106(a)(2)(B)
The Agency's principal argument in its exceptions is that the Award is contrary to law because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The right to assign work under section 7106(a)(2)(B) focuses on the assignment of duties and includes the right to determine the particular duties and work to be assigned to employees or positions and the particular employees to whom, or positions to which, the work will be assigned. See, e.g., American Federation of Government Employees, Local 1985 and U.S. Department of Veterans Affairs Medical Center Dublin, Georgia, 55 FLRA 1145, 1152 (1999), citing National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd, 691 F.2d 553 (D.C. Cir 1982). The Authority has long held that the right to assign work includes establishing the qualifications and skills needed for a position or duties and judging whether particular employees meet those qualifications and skills. See, e.g., Id. at 1152 citing, Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703, 706 (1982). The principle that determining whether employees are qualified is a management right was most recently affirmed by the Authority in U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 55 FLRA 596, 600 (1999) (Naval Surface Warfare Center) (an award requiring an agency to adhere to objective criteria in assigning overtime benefits affects management's right to assign work under section 7106(a)(2)(B) of the Statute).
As noted by the Agency in its exceptions, "the right to assign work includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether particular employees meet those qualifications." Exceptions at 6, citing American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1502 (1993). By requiring the Agency to rerun the selection action with a reduced pool of applicants, based in part upon the Arbitrator's findings regarding the applicants' qualifications, the Award affects the Agency's right to assign work.
b. The Award Affects Management's Right To Select: Section 7106(a)(2)(C)
The Agency also contends that the award interferes with its right to make selections for appointments from any appropriate source. It states that by eliminating the only two repromotion eligibles in the division in which the position was located, "the arbitrator left the Agency with no other candidate to select thereby limiting management's right to select from other appropriate sources." Exceptions at 10. [ v56 p642 ]
The Authority has made it clear that 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). Social Security Administration, Chicago North District Office and American Federation of Government Employees, Local 1346, 56 FLRA 274, 277 (2000) (SSA, Chicago). Moreover, the Authority has stated that management's right to select includes the right to determine the qualifications, skills, and abilities needed to perform the work of a position and to determine whether applicants possess such qualifications, skills, and abilities. U.S. Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Newport News, VA and National Association of Government Employees, Local R4-2, 56 FLRA 339, 343 (2000).
2. Prong I of BEP Is Satisfied
In this case, with regard to prong I, the Arbitrator found that the Agency violated the selection requirements contained in Article XXV, Section 6 of the CBA. In order to satisfy prong I of BEP, the award must provide 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.
The Authority has held that if management retains the right to determine the qualifications for assignment of work and whether individual employees possess such qualifications, then the procedure by which one of the qualified employees is assigned such work is negotiable under section 7106(b)(2) of the Statute. For example, U.S. Department of the Air Force, Dover Air Force Base, 436th Air Lift Wing, Dover, Delaware and American Federation of Government Employees, Local 1709, 55 FLRA 935 (1999) (Dover Air Force Base). A provision in that case, as interpreted by the arbitrator, provided the agency the right to determine the requisite qualifications necessary to perform the particular work at issue, but required the agency to use the negotiated procedure to select. The Authority stated that such a provision was "clearly in keeping with Authority precedent under § 7106(b)(2)." Id. at 939.
In this case, the Arbitrator enforced Article XXV, which mandates that "Employees selected must meet the requirements of the prospective assignment." Award at 1-2. The Arbitrator found that the employee selected was not qualified, and that the Grievant was qualified. This is similar to the arbitrator's determination in Red River Army Depot that the agency's assignment of work to one employee over another based on the agency's assessment of their relative qualifications was incorrect under the CBA. In that case, the arbitrator was enforcing a provision that required equitable rotation among qualified employees, which provision was found by the Authority to be a section 7106(b)(2) procedure. Id. at 524-25. Likewise, in this case, the Arbitrator's interpretation of the CBA and his finding that the Agency violated it demonstrate that the Arbitrator was enforcing a provision in the parties' agreement that constitutes a procedure within the meaning of section 7106(b)(2) of the Statute. See Dover Air Force Base, 55 FLRA at 939. Thus, prong I of BEP has been satisfied. See BEP, 53 FLRA at 153.
3. Prong II of BEP: the Award Is A Proper Reconstruction
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 CBA. Here, as in SSA, Chicago, the Arbitrator did not order that the Grievant be retroactively promoted. Instead, he directed that the selection process be rerun, using the same criteria as used at the time the Selectee was chosen. Ordering an agency to redo a selection action so as to accord with contractual requirements is an action satisfying prong II of BEP. SSA, Chicago. See also 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 rerun of a selection that did not conform to law or a CBA).
The question remains as to whether the Arbitrator's order that Employee M and the Selectee not be considered undermines the reconstruction requirement of prong II of BEP. The Arbitrator excluded the two because the Selectee was not qualified, and Employee M had turned down the appointment during the selection that is being reconstructed.
The Authority's task under prong II is to examine whether the award reflects a reconstruction of what management would have done had it complied with the contract provision. BEP, 53 FLRA at 154. Management decided to select noncompetitively, thus requiring it to comply with Article XXV Section 6 of the CBA.
We find that the Selectee's exclusion from the rerun selection is consistent with a reconstruction under prong II of BEP. The CBA requirement, as interpreted by the Arbitrator, is that the selection be made from employees who meet the requirements of the assignment at the time of selection. The Authority, like the Federal courts, will accord an arbitrator's interpretation [ v56 p643 ] of a collective bargaining agreement substantial deference. See American Federation of Government Employees, Local 4052, Council of Prison Locals and U.S. Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, San Juan, Puerto Rico, 56 FLRA 414, 417 (2000); U.S. Department of the Treasury, Internal Revenue Service, Oxon Hill, Maryland and National Treasury Employees Union, Chapter 65, 56 FLRA 292, 298 (2000). The Selectee was determined by the Arbitrator not to be qualified, a factual determination to which we defer. See NFFE Local 1437. Because the CBA required that the selection be on a rotational basis from employees who meet the requirements of the assignment, the exclusion of the Selectee from consideration is proper.
We also find that Employee M's exclusion from the rerun selection is consistent with a reconstruction under prong II of BEP. Since BEP requires that a reconstruction represent what management would have done had it complied with the contract provision, the rerun should properly exclude Employee M as well. She removed herself during the original selection and the Agency moved forward to select another candidate. Eliminating her from consideration in the rerun puts the Grievant, and the selection process, in the same position as would have obtained but for the Agency's violation of the CBA.
In view of the foregoing, we conclude that the Arbitrator's award satisfies the reconstruction requirement of BEP. The exception that the award is contrary to law provides no basis for finding the award deficient.
B. The Arbitrator Did Not Exceed His Authority
The Agency argues that the Arbitrator exceeded his authority because he substituted his own