U.S. Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Newport News, Virginia (Agency) and National Association of Government Employees, Local R4-7 (Union)

[ v57 p36 ]

57 FLRA No. 12

U.S. DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING, CONVERSION
AND REPAIR, NEWPORT NEWS, VIRGINIA
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-2
(Union)

0-AR-3236
(56 FLRA 339 (2000))

_____

DECISION

March 29, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jerome T. Barrett filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. This award arises out of the remand ordered by the Authority in United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Newport News, Va., 56 FLRA 339 (2000) (Dep't of the Navy). The Union filed an opposition to the Agency's exceptions.

      On remand from the Authority, the Arbitrator addressed the Authority's request to clarify the basis for the initial award. For the reasons set forth below, we find that the award as clarified demonstrates that the Arbitrator properly enforced a provision of the parties' collective bargaining agreement. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitration Award

A.     Initial Award and Authority's Decision

      In the initial award, the Arbitrator resolved the Union's grievance concerning the process by which the Agency interviewed candidates to fill a vacancy for the position of Production Controller, GS-12. The Union had alleged that the Agency violated Article 25, Section 6 of the parties' collective bargaining agreement ("agreement") when it used an unfair process to make its selection for filling a position vacancy. [n2] 

      The Arbitrator found that the rating panel used by the Agency should not 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. As a result, the Arbitrator held that the Agency violated the parties' agreement by running an unfair selection process.

      In terms of a remedy, the Arbitrator ordered the Agency to post a vacancy announcement for the Production Controller position occupied by the selectee "as soon as possible and no later than thirty days from this award"; conduct a selection process for the position that "is proper, correct and fair, and does not include any panelist from the earlier process"; and "[r]emove [the selectee] from the Production Controller position she has occupied since October 1998." See Dep't of the Navy, 56 FLRA at 340. In addition, pursuant to Article 31, Section 6 of the parties' agreement, the Arbitrator ordered the Agency to "pay the full arbitrator's bill since the grievance has been sustained." Id.

      On review of the exceptions, and in response to the Arbitrator's finding that the disputed selection process was not "`in compliance with regulations or the parties' . . . agreement'[,]" Id. at 343 (quoting from the initial award), the Authority; held that it was "unable to determine whether the Arbitrator enforced any particular provision of the parties' agreement." Id. at 344. Accordingly, the Authority remanded the award in order to clarify which section of the parties' agreement had been relied upon by the Arbitrator. Then Chairman Wasserman dissented from the majority regarding the decision to remand, because he found that the Arbitrator properly enforced Article 25, Section 6 as an arrangement under § 7106(b)(3) of the Statute.

B.     Award on Remand

      On remand, the Arbitrator first noted the Agency's position that the Arbitrator's attention should be directed to the Authority's analysis and conclusion [ v57 p37 ] under part IV.C. of Dep't of the Navy (where the Authority held that "[t]he record is insufficient for a determination as to whether the award is contrary to § 7106(a) of the Statute."). Award at 3, citing Dep't of the Navy, 56 FLRA at 342-44. The Arbitrator then noted the Union's position that "the required citations to the contract and regulations are adequately reflected in the positions of the parties as described in the dissent of then-Chairman Wasserman." Id.

      In resolving the case, the Arbitrator stated that he reviewed the entire Authority decision, with a particular emphasis on sections cited by the parties. The Arbitrator "identified the FLRA [then-]Chairman's dissent language as the basis for the September 2, 1999 award," and affirmed the remedy set forth by the original award. Id. at 4; See Dep't of the Navy at 340.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency claims that the award is contrary to law and fails to comply with the Authority's remand order because the Arbitrator did not "specifically . . . identify the law, rule, regulation or agreement provision that was violated." Exceptions at 4. In support, the Agency cites, among other cases, United States Dep't of Labor, Mine Safety and Health Admin., Southeastern Dist., 40 FLRA 937 (1991).

      Second, the Agency contends that the award fails to draw its essence from the parties' agreement. In this regard, the Agency claims that, "[b]y relying on the minority opinion as the basis for his award . . . [t]he [A]rbitrator has again failed to link his award to a violation of the collective bargaining agreement." Exceptions at 5.

      Third, the Agency contends that the Arbitrator's order to rerun the selection action is contrary to law because it directly interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute and its right to select under § 7106(a)(2)(C) of the Statute. In this regard, the Agency claims that the portion of the award requiring the Agency to rerun the selection process, without including any panelist from the earlier process, interferes with management's right to assign work; also, relying on AFGE, Local 31, 49 FLRA 957, 963-65 (1994) (AFGE, Local 31), the Agency claims that the award requires the Agency to weight the interview questions differently, and therefore interferes with management's right under § 7106(a)(2)(C) to determine the qualifications, skills, and abilities needed to perform the work of a position; and relying on Pennsylvania Nat'l Guard, 35 FLRA 478, 490 (1990), the Agency argues that the portion of the award requiring that the selectee be removed from the position interferes with management's right to select and assign work. The Agency claims that the award does not satisfy Prong I of the BEP test (see United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP)), because: (1) "[t]he [A]rbitrator has not cited any violation of the Collective Bargaining Agreement which serves as a basis for his award[,]" and (2) even if Article 25, Section 6 has been put into issue by the Arbitrator, "[i]t is impossible to see how [that provision] would have been violated by the interview questions which were asked or the participation on the panel of the disputed management official." Exceptions at 7-8. The Agency contends that the award abrogates management rights and therefore the award "cannot be found to constitute an appropriate arrangement." Id. at 9. In this connection, the Agency argues that because the award "fashions a remedy requiring management to re-announce the vacancy, use a recommending panel which does not include members from the original panel, and take the previous selectee out of the job[,]" the remedy "precludes management from assigning work and selecting employees" under the management rights section of the Statute. Id. Finally, the Agency claims that the award does not satisfy Prong II of the BEP test because the award is not a recreation of what the Agency would have done had the Agency rated the candidates in accordance with Article 25, Section 6.

      Fourth, relying on Veterans Admin. Medical Ctr., Newington, Conn., 19 FLRA 535 (1985), the Agency claims that the Arbitrator exceeded his authority when he ordered the initial selectee to be removed from her position.

B.     Union's Opposition

      First, the Union contends that the award "specifically adopts the language of then-Chairman Wasserman's dissent[,] which "was based on Article 25, Section 6[ ] of the Negotiated Agreement."  Opposition at 3. In this regard, the Union contests the Agency's assertion that it was improper for the Arbitrator to rely on the dissent, contending that "[t]he Arbitrator here, in the interest of brevity, simply adopted the language of the dissent in much the same way that courts and the FLRA will adopt the language of another decision or a lower court decision as its own without bothering to repeat verbatim what has already been said perfectly well." Id.

      Second, the Union argues that the Arbitrator's award does not violate the Agency's right to assign [ v57 p38 ] work under § 7106(a)(2)(B) of the Statute or the Agency's right to select under § 7106(a)(2)(C) of the Statute. In this regard, the Union asserts that the Authority has held that if a union successfully challenges a selection process as unfair, then "a new panel may be necessary as a remedy in order to provide an untainted selection process." Id. at 4. In support, the Union cites, among other cases, Soc. Sec. Admin., Office of Hearings and Appeals, Orlando, Fla., 55 FLRA 834 (1999); Panama Canal Comm'n, 54 FLRA 1161, 1174 n.10 (1998). The Union also argues that, as the Agency did not in its original exceptions raise the issue of the Agency's right to determine qualifications, the Agency's argument on that issue should be rejected as untimely. In the alternative, the Union argues that the Agency's right to determine qualifications is not at issue here because "[t]he [A]gency's violation was not that it improperly determined the qualifications[,] but [that it] slanted the process used in evaluating those qualifications during the course of the selection process." Opposition at 5.

      Third, the Union contends that the Arbitrator did not exceed his authority when he ordered the selectee to be removed from the position because "[r]emoval of the selectee . . . is simply a part of canceling the selection and requiring the [A]gency to run the selection over[,]" and "[t]his can't be done if the person initially selected is still in the position." Id. at 7.

IV.     Analysis and Conclusions

A.     The Award is Not Contrary to Law

      If an arbitrator's award is challenged on the ground that it is contrary to any law, rule or regulation, then the Authority reviews the legal question de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

1.     The award complies with the Authority's remand order by clarifying the basis for the initial award

      Here, the Arbitrator clarified the basis for the initial award by incorporating by reference then-Chairman Wasserman's dissent in Dep't of the Navy, which cites Article 25, Section 6 of the parties' agreement as the Arbitrator's basis for his award. Specifically, the Arbitrator ruled that he had "identified the FLRA [then-]Chairman's dissent language as the basis for the September 2, 1999 award." Award at 4. We note that in their submissions to the Arbitrator, both parties essentially incorporated by reference sections of the majority and dissenting opinions. Id. at 3. Thus, the Arbitrator's clarification follows the style used by the parties. Because the Arbitrator based his award on Article 25, Section 6, there is no merit to the Agency's claim that the award fails to comply with the Authority's remand order. Likewise, because the Arbitrator based his award on Article 25, Section 6, the award is not incomplete, ambiguous, or contradictory so as to make implementation of the award impossible.

2.     The award does not violate management's rights

      The Agency argues that the award is contrary to management's right to assign work and select under § 7106(a)(2)(B) and (C) of the Statute. Accordingly, we will review the questions of law raised by the Agency's exception and the Arbitrator's award de novo.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under § 7106 of the Statute 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. Under Prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 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.

a.     The award affects management rights

      We find that the award affects management's right to assign work and select under § 7106(a)(2)(B) and (C) of the Statute.

      First, the right of an agency to assign work under § 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. AFGE, Local 3392, 52 FLRA 141, 143 (1996). Employees appointed to ranking panels are performing work for the Agency and the selection of employees involves a work assignment by the Agency. See AFGE, Local 2298, 35 FLRA 1128, 1136 (1990) (AFGE, Local 2298). Here, the Arbitrator ordered that, upon rerunning the selection process, the selection panel "not include any panelist from the earlier process." Dep't of the Navy, 56 FLRA at 340. Consequently, as the award specifies the qualifications of [ v57 p39 ] employees assigned to the selection panel, we find that the award affects management's right to assign work under § 7106(a)(2)(B) of the Statute. See AFGE, Local 2298 (Proposal 4) (proposal that precluded agency from assigning a selecting official to be a member of rating and ranking panel directly interfered with agency's right to assign work).

      Second, 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. See ACT, New York State Council, 45 FLRA 17, 20 (1992) (ACT). In this connection, the parties do not dispute that the Arbitrator's award requires the Agency to reallocate the weight assigned to questions asked at the interview that concern ship repair and supply experience. Based upon Authority precedent, we find that the award affects management's right to determine the qualifications for the position pursuant to § 7106(a)(2)(C) of the Statute. See AFGE, Local 31, 49 FLRA at 963-64 (arbitrator's determination that Agency assigned incorrect weights to selective factors for position directly interfered with management's right under 7106(a)(2)(C) to determine qualifications for position); see also ACT, 45 FLRA 17 (proposal that limited management's right to determine qualification requirements for a civilian national guard position directly interfered with management's right to select under § 7106(a)(2)(C) of the Statute).

b.     The award satisfies Prong I of BEP

      In this case, with regard to Prong I, the award is based on a violation of the selection requirements contained in Article 25, Section 6 of the parties' agreement. The remedy awarded by the Arbitrator, therefore, addresses the Agency's violation of that provision. Because the Agency contends that Article 25, Section 6 is not enforceable as an arrangement within the meaning of § 7106(b)(3) of the Statute, the Authority will review the award based upon the analysis set forth in Dep't of the Treasury, United States Customs Service, 37 FLRA 309 (1990) (Customs Service). Under that framework, the Authority determines whether the collective bargaining provision enforced by the arbitrator: (1) constitutes an arrangement under § 7106(b)(3) of the Statute; and (2) does not abrogate the exercise of a management right. See United States Dep't of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Ga., 53 FLRA 1344, 1348 n.4 (1998) (Warner Robins).

      A collective bargaining provision constitutes an arrangement under § 7106(b)(3) of the Statute if it is intended to provide relief to ameliorate the adverse effects flowing from the exercise of a management right. See BEP, 53 FLRA at 155. As interpreted and applied by the Arbitrator, the Agency violated Article 25, Section 6 by posing interview questions that "unfairly favored" the selectee over the grievant. Dep't of the Navy, 56 FLRA at 340. As such, Article 25, Section 6 is substantially similar to agreement provisions requiring an agency to exercise its management rights fairly and equitably, which have been found by the Authority to constitute arrangements within the meaning of § 7106(b)(3). See, e.g., AFGE, Local 2369, 45 FLRA 124, 131-33 (1992) (AFGE, Local 2369) (provision requiring performance standards to be applied in a fair and equitable manner constituted an enforceable arrangement for employees adversely affected by the agency's right to assign work); NTEU, 25 FLRA 1041 (1987) (Proposal 3) (proposal requiring agency to conduct reductions in force "in a fair and equitable manner" constituted an appropriate arrangement for employees adversely affected by the agency's right to assign work). It is also well accepted that agreement provisions designed to ameliorate the adverse effects on employees that can result from unfair or inaccurate ratings in the selection process constitute arrangements within the meaning of § 7106(b)(3). See NTEU, 53 FLRA 539, 569-73 (1997) (Article 12, Section 4(G)) (PTO) (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 § 7106(b)(3) of the Statute); see also FAA, Washington, D.C., 55 FLRA 1233 (2000) (FAA) (arbitrator enforced arrangement requiring union representation on selection panels, which was designed to ameliorate the adverse effects flowing from the exercise of management's right to select and assign work in the selection process). Accordingly, we find that the Arbitrator enforced an arrangement designed to ameliorate the adverse effects flowing from the exercise of management's right to select and assign work. See PTO, 53 FLRA at 571.

      With respect to the second part of the Customs Service test, a provision interpreted and applied by an arbitrator "abrogates" a management right when it "precludes [the A]gency from exercising" that right. Warner Robins, 53 FLRA at 1349 (citation omitted). In this case, the Agency argues that the award "precludes management from assigning work and selecting employees" and therefore "cannot be found to constitute an appropriate arrangement." Exceptions at 9. The Agency supports its argument by relying on cases which it claims stand for the proposition that the award "interferes" with management's rights to select and assign work. The Agency does not explain, however, how the [ v57 p40 ] Arbitrator's application of the provision prevents it from exercising those rights. As relevant to the Customs Service analysis, arguments that an arbitrator's interpretation and application of a provision interferes with management's rights do not demonstrate that the application of the provision abrogates those rights. See, e.g., FAA, 55 FLRA at 1237 (rejecting agency's argument that award abrogated management rights, in part because "negotiability cases employing an `interference' analysis do not control the abrogation analysis required under Customs Service").

      Under the facts of this case, we find that the Arbitrator's enforcement of the parties' agreement does not abrogate the exercise of management's right to assign work or select employees. Cf. AFGE, Local 2369, 45 FLRA at 132 (enforcement of collective bargaining agreement to preclude grievant's reappraisal by same supervisor whose conduct violated agreement did not abrogate management's right to assign work because it preserved management's discretion to determine the identity of the reappraising supervisor); Panama Canal Comm'n, 52 FLRA 404, 412 (1996) (arbitrator's enforcement of a collective bargaining agreement to require a rerun of the selection process did not abrogate management's right to select because management's selection discretion remained unconstrained). Therefore, we find that the Arbitrator's interpretation and application of the parties' agreement does not abrogate management's right to assign work or select employees.

      Accordingly, we find that the award satisfies Prong I of the BEP analysis.

3.     The award satisfies Prong II of the BEP analysis

      Under Prong II of the BEP analysis, the remedy awarded must reflect a reconstruction of what management would have done if management had not violated the agreement. See BEP, 53 FLRA at 154. In this connection, the Arbitrator determined that the collective bargaining agreement required the Agency to ask interview questions that did not unfairly favor any applicant. In addition, by adopting the then-Chairman's dissent in the underlying decision, the Arbitrator has effectively found that the disputed contract provision applies not only to rating criteria but also to the interview panel responsible for implementing those criteria. He also found, by incorporation, that "a proper rerun action must not include the same selection panel members [who] violated the parties' agreement." Dep't of the Navy, 56 FLRA at 345. In this regard, consistent with his earlier ruling that the selection process must be rerun in a fair, unbiased fashion, the Arbitrator affirmed the remedy set forth in the original award. Ordering an agency to rerun a selection so as to be in accord with contractual requirements satisfies Prong II of the BEP analysis. See Soc Sec Admin., Chicago North Dist. Office, 56 FLRA 274, 277 (2000) (SSA Chicago); Soc Sec Admin., Office of Hearings and Appeals, 54 FLRA 1365, 1373 (1998).

      Also, it is well accepted that an arbitrator's order to rerun a selection action may include a requirement that the initial selection be set aside. See, e.g., Panama Canal Comm'n, 56 FLRA 451 (2000) (Authority upheld rerun action which included arbitrator's order that initial selectees be removed from their positions); SSA Chicago, 56 FLRA 274 (same). Consequently, we reject the Agency's claim that the Arbitrator had no authority to issue an award requiring that the initial selection be set aside.

B.     The Award Does Not Fail to Draw its Essence From the Agreement

      In reviewing 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); AFGE, Council 220, 54 FLRA 156, 159 (1998). 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 Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). 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." Id. at 576.

      We reject the Agency's contention that the clarified award fails to specify a violation of the parties' agreement, and, therefore, does not draw its essence from that agreement. As we found above, the Arbitrator's incorporation by reference of the dissent in Dep't of the Navy constitutes a finding that the Agency violated Article 25, Section 6 of the parties' agreement. The Agency has not demonstrated that, in this respect, the award is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, we deny the exception for failing to demonstrate that the award does not draw its essence from the agreement.

V.     Decision

      The Agency's exceptions are denied. [ v57 p41 ]


APPENDIX

ARTICLE 25
MERIT STAFFING

Section 6. All unit employee applications which meet minimum qualifications for a vacancy announcement are