United States Department of,Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Agency) and National Association of Government Employees, Local R5-136 (Union)

[ v57 p72 ]

57 FLRA No. 23

UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS, RALPH H. JOHNSON
MEDICAL CENTER, CHARLESTON
SOUTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
LOCAL R5-136
(Union)

0-AR-3204
(56 FLRA 381 (2000))

_____

DECISION

April 6, 2001

_____

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

Decision by Member Pope for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Williams 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. The Union filed an opposition to the Agency's exceptions. The Arbitrator's award was issued on remand from the Authority's decision in United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 56 FLRA 381 (2000) (Ralph H. Johnson Med. Ctr.).

      For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      As relevant here, the Arbitrator found, in an earlier award (the Initial Award), that the grievant's performance of Windows New Technology (NT) work entitled him to a temporary promotion from a WG-8 Computer Mechanic to a GS-12 Computer Specialist-Systems Manager position. On review of the Agency's exceptions, the Authority found that the record was insufficient "to determine whether the grievant met the [ v57 p73 ] specialized experience requirements [set forth by the Office of Personnel Management (OPM)] at the beginning of the temporary promotion, or whether he met those requirements at some later point." Ralph H. Johnson Med. Ctr., 56 FLRA at 388. The Authority remanded the award to the parties for resubmission to the Arbitrator, absent settlement, and denied the Agency's other exceptions.

      On remand, the Agency requested an additional hearing. In the award at issue here (the Award on Remand), the Arbitrator declined the Agency's request, finding that there was sufficient record evidence to decide the remanded issue.

      Addressing the merits, the Arbitrator considered the grievant's military experience, education, and work-study experience, and found that, at the outset of the temporary promotion period, the grievant possessed the equivalent of one year's experience at the GS-11 level and, therefore, was qualified for temporary promotion to the GS-12 level. The Arbitrator also found that the grievant performed GS-12 work, both prior to and during the temporary promotion period. In so finding, the Arbitrator stated that the grievant's supervisor was not competent to advise others regarding Windows NT.

III.     Positions of the Parties

A.     Agency

      As a preliminary matter, the Agency contends that the Arbitrator "failed and refused to follow the directions of the Authority to allow further submission by the parties," and that this "prejudiced" the Agency. Exceptions at 4-5.

      The Agency also contends that the Arbitrator was biased and denied the Agency a fair hearing. The Agency claims, in this regard, that the Arbitrator made no findings in favor of the Agency; improperly weighed certain testimony; declared the grievant's supervisor incompetent; issued an award for a period during which the grievant was not covered by the parties' agreement; and denied the Agency's request to submit additional evidence on remand.

      Further, the Agency argues that the award is contrary to 5 C.F.R. §§ 302.202, 335.102, and 335.103 because the grievant did not satisfy specialized experience requirements set forth by OPM. [n1]  In particular, the Agency claims that: the grievant does not have work experience at the GS-11 level; the grievant did not learn or perform Windows NT duties until after the beginning of the temporary promotion period; there was expert testimony that the grievant did not have sufficient experience to qualify at the GS-11 or 12 level, which the Arbitrator ignored without discrediting; and the Arbitrator failed to use a "required percentage analysis to show what experience he gave what particular weight." Id. at 10.

      The Agency also argues that the award is contrary to management's right to "determine qualifications" for promotion because the Arbitrator ignored, without discrediting, expert testimony that the grievant lacked sufficient experience. Id. at 16. Further, the Agency contends that the Arbitrator's finding that the grievant's supervisor was incompetent violates management's right to assign work.

      According to the Agency, the Arbitrator exceeded his authority by crediting the grievant's military experience even though evidence regarding that experience was incomplete. Also according to the Agency, the award fails to draw its essence from the parties' agreement because: (1) the grievant was not qualified, under the parties' agreement, for a temporary promotion; (2) the Arbitrator did not base the award on contract provisions concerning temporary promotions; and (3) the grievance was not grievable or arbitrable because the temporary promotion period includes a time period when the grievant was not covered by the parties' agreement.

      Finally, the Agency maintains that the award is based on nonfacts. In particular, the Agency claims that the Arbitrator improperly found that the grievant performed GS-12 duties and was entitled to a temporary promotion.

B.     Union

      As a preliminary matter, the Union asserts that certain attachments to the Agency's exceptions are not properly before the Authority because the information contained in them has not been subject to cross-examination, and because some of them are irrelevant. In particular, the Union challenges Attachments 1, 2, 4, 5, 6, 10, 19, and 20. The Union also asserts that, on the merits, the Agency's arguments also do not demonstrate that the award is deficient. [ v57 p74 ]

IV.     Preliminary matter: The Authority will consider Attachment 10 to the exceptions but will not consider Attachments 1, 2, 4, 5, 6, 19 or 20.  [n2] 

      Under 5 C.F.R. § 2424.5, the Authority will not consider evidence that could have been, but was not, presented to the Arbitrator. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 829, 833 n.6 (2000).

      Attachments 1 and 19 are written statements by an Agency position classification specialist explaining why the grievant did not perform GS-12 level duties. Although these attachments were not created until after the Arbitrator issued the Initial Award, the information contained therein could have been submitted to the Arbitrator prior to that time. As the Agency could have submitted that information to the Arbitrator prior to issuance of the Initial Award, but failed to do so, we decline to consider Attachments 1 and 19.

      Attachments 2, 4, 5 and 6 address the Arbitrator's findings that the grievant's supervisor was incompetent. For the reasons discussed infra, section V.B.2., the Agency's arguments regarding this aspect of the award are not properly before the Authority. Consistent with this, we decline to consider Attachments 2, 4, 5 and 6.

      A review of the exhibits submitted to the Arbitrator in connection with the Initial Award demonstrates that all of the documents in Attachment 10 were submitted to the Arbitrator. See Joint Exhibits 1 and 2; Agency Exhibits 1 through 6; and Union Exhibits 1 through 11. As such, the Union does not provide a basis for declining to consider them here.

      Attachment 20 consists of several documents that appear to relate to the Agency's arguments that the grievant did not meet specialized experience requirements at the outset of the temporary promotion period. The issues of whether and when the grievant was entitled to a temporary promotion were directly before the Arbitrator in the Initial Award. As the Agency could have submitted Attachment 20 to the Arbitrator at that time but failed to do so, we decline to consider Attachment 20.

V.     Analysis and Conclusions

A.     The Agency has not demonstrated that the Arbitrator was biased and/or failed to conduct a fair hearing.

      As the Agency combines its bias and fair hearing arguments, we consider the arguments together. See United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000). To demonstrate that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Med. Ctr., North Chicago, Ill., 52 FLRA 387, 398 (1996). To establish that an arbitrator failed to conduct a fair hearing, a party must demonstrate that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceedings as a whole. See AFGE, Local 1668, 50 FLRA 124, 126-27 (1995).

      The award was remanded to the Arbitrator because the record before the Authority did not permit a resolution of all of the Agency's initial exceptions. See Ralph H. Johnson Med. Ctr., 56 FLRA at 387-88. The Authority made no finding that the Arbitrator had insufficient evidence before him to resolve the grievance. Further, the Authority has held that an arbitrator did not deny a fair hearing by declining, on remand, to reopen the record and hold a hearing. See NLRB, Wash., D.C., 48 FLRA 1337, 1341-42 (1994). Thus, the Agency has not demonstrated that the award is deficient in this regard.

      The Authority has also held that an arbitrator will not be found biased solely on the basis that he or she made no findings in favor of a party. See AFGE, Local 4042, 51 FLRA 1709, 1714 (1996). Further, the Agency's arguments that the Arbitrator improperly weighed evidence do not demonstrate that he refused to hear evidence and, thus, do not demonstrate that the Arbitrator denied the Agency a fair hearing. See NTEU & NTEU, Chapter 48, 54 FLRA 1197, 1209 (1998).

      The Agency's remaining arguments also do not demonstrate that the Arbitrator was biased or denied the Agency a fair hearing. Accordingly, we deny the exception. [ v57 p75 ]

B.     The Award on Remand is not contrary to law.

      The Authority reviews the questions of law raised by the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with applicable standards of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     5 C.F.R. §§ 335.102 and 335.103

      To determine whether the grievant was qualified for a temporary promotion to the GS-12 level, the Arbitrator addressed whether the grievant had a minimum of one year experience at the GS-11 level. In so doing, the Arbitrator set forth the OPM specialized experience required for a GS-11 computer specialist position: "[e]xperience that demonstrated accomplishment of computer project assignments that required a range of knowledge of computer requirements and techniques," and "coordination with others outside the organizational unit." Award on Remand at 13 (emphasis in original). Accord OPM's Operating Manual: Qualification Standards for General Schedule Positions at IV-B-50.

      With regard to computer skills, the Arbitrator found that the grievant: gained experience during his military service that "prepared him to comprehend . . . Windows NT;" "spent two years at a junior college learning . . . Windows NT;" and "work[ed] in the start up and implementation of Windows NT[]" during his work study with the Agency. Award on Remand at 23, 22. With regard to coordination outside the grievant's organizational unit, the Arbitrator found that the grievant trained others in the military and had "numerous contacts with those outside of his unit" while working for the Agency. Id. at 23. These factual findings support the Arbitrator's conclusion that the grievant met the GS-11 level specialized experience requirements. The Agency provides no support for its claim that the grievant's two years' work study are not equivalent to one year's work at the GS-11 level, and the Agency does not demonstrate that the Arbitrator erred in any other respect in applying the OPM standards.

      The Agency's assertions that the grievant did not perform Windows NT duties before the temporary promotion period, and that the Arbitrator erred by finding that the grievant developed training skills while in the military, challenge the Arbitrator's factual findings, to which the Authority defers. [n3]  Similarly, while the Agency contends that the Arbitrator ignored testimony that the grievant was not qualified for the temporary promotion, the Arbitrator effectively discredited that testimony by finding that the Agency presented "no competent or credible witness with personal knowledge of the [g]rievant's work[.]" Award on Remand at 3. As the Agency's contention challenges the credibility finding, it does not provide a basis for finding the award deficient. See United States Dep't of Labor, Wash., D.C., 55 FLRA 1019, 1023 (1999).

      With regard to the grievant's education, OPM guidelines provide that applicants who have one year of appropriate specialized experience "are not required . . . to have . . . education above the high school level." OPM's Operating Manual: Qualification Standards for General Schedule Positions at IV-A-13-17. Consistent with the Initial Award, which has not been shown deficient on this point, the grievant possessed at least one year of experience equivalent to that of a GS-11 computer specialist. Accordingly, the Agency's argument regarding the grievant's education does not demonstrate that the Award on Remand is deficient.

      Finally, although the Agency maintains that the Arbitrator did not use the "required percentage analysis to show what experience he gave what particular weight," the Agency cites no authority requiring an arbitrator to conduct such analysis. Exceptions at 10. Accordingly, in this connection, and with regard to the Agency's remaining arguments, the Agency has not demonstrated that the award is contrary to law.

      In sum, the Agency has not demonstrated that the Award on Remand is contrary to 5 C.F.R. §§ 335.102 and 335.103.

2.     Management's right to assign work

      The Agency challenges the Arbitrator's finding, first made in the Initial Award and then reiterated in the Award on Remand, that the grievant's supervisor was incompetent. Where a party fails to except to an arbitrator's finding on a particular issue the party cannot, in exceptions to a later award, collaterally attack the previously-unexcepted-to findings. See United States Dep't of HHS, Navajo Area Indian Health Serv., Window Rock, Ariz., 56 FLRA 1035, 1038 (2000) (Indian Health Serv.). As the Agency could have made its management's rights argument in its exceptions to the Initial Award but failed to do so, the Agency is precluded from now collaterally attacking the Arbitrator's finding on this issue. [ v57 p76 ]

C.     The Agency has not established that the Arbitrator exceeded his authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See United States Dep't of Defense, Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      The issue before the Arbitrator on remand was whether the grievant possessed specialized experience from the beginning of the temporary promotion period. The Arbitrator's findings that the grievant possessed the necessary experience are directly responsive to that issue. In addition, as the Arbitrator was charged with determining whether the grievant possessed specialized experience equivalent to one year at at least the next lowest grade to a GS-12, see Ralph H. Johnson Med. Ctr., 56 FLRA at 387-88, it was appropriate for the Arbitrator to consider the GS-12 position description and whether the grievant had performed the duties of that position. Thus, the Agency has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception.

D.     The Agency has not established that the Award on Remand fails to draw its essence from the parties' agreement.

      To demonstrate that an award fails to draw its essence from a collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575-77 (1990).

      The Agency's argument that the grievant was not qualified, within the meaning of the parties' agreement, challenges the Arbitrator's finding that the grievant was qualified to perform GS-12 work. As the Agency has not demonstrated that the Arbitrator erred in finding that the grievant was qualified to perform GS-12 work, the Agency also has not demonstrated that the award fails to draw its essence from the agreement.

      With regard to the Agency's assertion that the Arbitrator effectively made a classification determination, the Authority concluded, in its decision denying the Agency's exceptions to the Initial Award, that the grievance concerned a temporary promotion, not a classification matter. See Ralph H. Johnson Med. Ctr., 56 FLRA at 386. The Agency did not request reconsideration of the Authority's first decision, and any attempt to do so here is untimely. See 5 C.F.R. § 2429.17. To the extent the Agency asserts that the grievant could not receive a temporary promotion that began with his date of hire, the Agency cites no provision of the parties' agreement that prohibits such a temporary promotion. Accordingly, that assertion does not demonstrate that the award fails to draw its essence from the parties' agreement on this basis.

      The Agency also argues that the award fails to draw its essence from the parties' agreement because the Arbitrator erred in finding that the grievant's supervisor was incompetent, and because the grievance was not grievable or arbitrable under the parties' agreement. As discussed above, where a party fails to except to arbitral findings on a particular issue, the party cannot, in exceptions to a later award, collaterally attack the previously-unexcepted-to findings. See Indian Health Serv., 56 FLRA at 1038. Also as discussed above, the Arbitrator found, in the Initial Award, that the supervisor was incompetent, but the Agency did not challenge that finding in its exceptions to the Initial Award. Likewise, in the Initial Award, the Arbitrator awarded the grievant a temporary promotion for the same specific time period as the Award on Remand, but the Agency did not argue in its exceptions that the period included a period of time when the grievant was not covered by the parties' agreement. As the Agency could have made these arguments in its exceptions to the Initial Award, but failed to do so, the Agency cannot now collaterally attack the Arbitrator's findings. See id.

      The Agency also challenges, on essence grounds, the Arbitrator's determination that the grievant was qualified for the GS-12 position. However, the Agency does not explain what contractual provision the Arbitrator allegedly misinterpreted. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the agreement on this point.

      Based on the foregoing, we deny the exception.

E.     The Award on Remand is not based on nonfacts.

      To establish that an award is based on a 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. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority [ v57 p77 ] will not find an award deficient on the basis of a determination on a factual matter that was disputed at arbitration. See id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Agency's exceptions to the Initial Award challenged the Arbitrator's finding that the grievant performed GS-12 duties. The Authority denied that exception because the matter had been disputed before the Arbitrator. See Ralph H. Johnson Med. Ctr., 56 FLRA at 385. The Agency did not request reconsideration of the Authority's decision, and any attempt to do so here is untimely. See 5 C.F.R. § 2429.17. Accordingly, the Agency has not demonstrated that the award is deficient in this connection. Further, although the Agency disputes the Arbitrator's finding that the grievant was entitled to a temporary promotion on the basis that the Arbitrator failed to take into account periods of time that the grievant was performing non-Windows NT duties, the Agency provides no basis for concluding that the Arbitrator was required to do so. Accordingly, the Agency does not demonstrate that the award is based on nonfacts.

V.     Order

      The Agency's exceptions are denied.



Footnote # 1 for 57 FLRA No. 23

   5 C.F.R. § 335.102 provides, in pertinent part, that an agency's authority to promote an employee is "[s]ubject to § 335.103." 5 C.F.R. § 335.103 provides, in pertinent part, that to be eligible for promotion, "candidates must meet the minimum qualification standards prescribed by the Office of Personnel Management (OPM)." 5 C.F.R. § 335.103(b)(3). The Agency also cites 5 C.F.R. § 302.202. However, as noted in the Authority's original decision, that regulation does not apply to competitive service positions such as the position involved here. See Ralph H. Johnson Med. Ctr., 56 FLRA at 387 n.5.


Footnote # 2 for 57 FLRA No. 23

   The remaining attachments are not in dispute.


Footnote # 3 for 57 FLR