National Treasury Employees Union, Chapter 90 (Union) and United States, Department of the Treasury, Internal Revenue Service, Pennsylvania Appeals Office, Philadelphia, Pennsylvania (Agency)

[ v58 p390 ]

58 FLRA No. 95

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 90
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PENNSYLVANIA APPEALS OFFICE
PHILADELPHIA, PENNSYLVANIA
(Agency)

0-AR-3532

_____

DECISION

March 27, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Earle W. Hockenberry filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' agreement, an Agency regulation and various laws by improperly ranking and not selecting the grievants for GS-14 positions. For the reasons that follow, we find that the Union has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Agency posted a vacancy announcement for four GS-14 Appeals Officer positions. The Agency determined that eleven of twelve applicants were qualified and selected four for the positions. Subsequently, six non-selectees (grievants) filed grievances alleging that they were not evaluated by the ranking and selecting officials in a fair and objective manner in violation of the parties' agreement, an Agency regulation (Internal Revenue Manual (IRM)) and various laws. When the parties were unable to resolve the grievances, they [ v58 p391 ] were consolidated and submitted to arbitration, where the parties stipulated to the following issues:

Whether the six grievants . . . were improperly ranked and not selected for the GS-14 Appeals Officer Position . . . in violation of Article 13, Section 1A, Section 3, Section 5; Article 4, Section 2 [of the [a]greement]; IRM [§] 0335.263; 5 USC Section 2302(b); the Age Discrimination Employment Act (ADEA); 29 USC Section 791(b); and all other applicable articles, statutes, regulations and manual provisions? In addition, as to Grievant Marcinek, there is an allegation of sex discrimination and/or anti-union animus. As to Grievant Freid and Grievant Polsenski, there is an issue of age discrimination; and as to Grievant Lancaster, there is an issue of disability discrimination.

Award at 7.

      The Arbitrator concluded that the Agency had not violated the agreement, the IRM, or the various laws alleged by the Union in conducting the Agency's ranking and selection process. In so concluding, the Arbitrator found that the ranking official considered the applicable provisions of the agreement, and that the decision of both the ranking and selecting officials to focus on recent experience in working on complex income tax cases as the key factor in evaluating the applicants was permissible because there was a reasonable relationship between this factor and the positions to be filled.

      The Arbitrator also rejected various arguments made by the Union regarding the ranking process, finding that the fact that all but one of the grievants was on the best qualified list (BQL) rendered the Union's arguments moot in this regard. In addition, the Arbitrator found that the selecting official was unaware of the ranking values assigned to the applicants by the ranking official.

      Addressing the Union's discrimination claims, the Arbitrator found that even assuming a prima facie case was established in each instance, the Agency sustained its burden to establish that its reason for not selecting the grievants was legitimate. With specific regard to the non-selections of Marcinek, Lancaster and Freid, and the failure of Polsenski to be placed on the BQL, the Arbitrator found that the Agency had established that these grievants worked primarily on cases other than complex income tax cases in the year prior to the selection. The Arbitrator also examined, and rejected, the Union's claims of pretext with respect to each grievant. Regarding Marcinek, a union official, the Arbitrator also found that various facts indicated the absence of anti-union animus. As the Arbitrator found no persuasive evidence of discrimination, he also rejected the Union's contention that the alleged discrimination constitutes a prohibited personnel practice.

      Consequently, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator's award is contrary to the IRM and the agreement. [n1]  The Union asserts that because the agreement incorporates the IRM, the agreement should be considered "law" and this exception should be reviewed de novo. Exceptions at 8. The Union asserts that the Arbitrator failed to apply the IRM and the agreement and that if the Arbitrator had applied them, then the Arbitrator would have concluded that the Agency improperly: (1) used selective placement factors without stating them in the vacancy announcement; (2) focused on the applicants' last year of experience; (3) downgraded the grievants' appraisal ratings; (4) did not interview all of the applicants' supervisors; and (5) failed to conduct a job analysis prior to the ranking process. The Union also maintains that the Arbitrator violated the IRM and the agreement when the Arbitrator concluded that its arguments concerning the ranking process were moot. The Union further asserts that although the Arbitrator's rationale for his conclusion that no prohibited personnel practice had occurred "was offered in the proper form," it was not accompanied by any analysis. Id. at 15.

      In addition, the Union contends that the Arbitrator erred in denying the individual discrimination claims. With respect to each claim, the Union asserts that discrepancies in the ranking and selection process establish discriminatory intent by the Agency. The Union also contends that the Arbitrator erred by not finding that the Agency discriminated against: (1) Marcinek based on anti-union animus in violation of § 7116(a)(2) of the Statute and based on gender in violation of Title VII of the Civil Rights Act (Title VII); (2) Freid and Polsenski based on their age in violation of the Age Discrimination in Employment Act (ADEA); and (3) Lancaster based on his handicap in violation of the Rehabilitation Act. The Union argues that the Agency's proffered reason for not selecting these grievants is pretextual and [ v58 p392 ] that the Arbitrator's failure to find discrimination ignores hearing evidence.

      The Union also contends that the Arbitrator's award relied on the nonfact that the selecting official was unaware of the applicants' ranking values assigned by the ranking official. The Union further claims that the Arbitrator exceeded his authority by failing to resolve the claims of grievants O'Hara and Malatesta, and by not explaining his justification for ignoring prior arbitral awards and failing to rule on the application of IRM § 0335 to the non-selection of the grievants.

B.     Agency's Opposition

      The Agency contends that the award does not violate the IRM and the agreement and that the Arbitrator correctly determined that the Agency's reason for not selecting the grievants was legitimate and not pretextual. The Agency further claims that the Arbitrator correctly determined that no prohibited personnel action occurred. The Agency also claims that the Union has failed to show that the award is based on a nonfact or that the Arbitrator exceeded his authority.

IV.     Analysis and Conclusions

A.     The award is not contrary to law, rule, or regulation.

      The Union's assertions that the award is contrary to the IRM, § 7116(a)(2) of the Statute, Title VII, the ADEA, and the Rehabilitation Act involve the award's consistency with law. The Authority reviews questions of law raised by the award and the agency's exceptions de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). For purposes of § 7122(a)(1), the Authority has defined rule or regulation to include governing agency rules and regulations. See NATCA, 54 FLRA 1354, 1359 (1998). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making this determination, the Authority defers to the arbitrator's underlying factual findings. Id.

1.     The award is not inconsistent with the IRM or the agreement.

      The Union contends that the award is contrary to the agreement, which should be considered a matter of "law" because the agreement incorporates the IRM. However, it is well-settled that collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which both apply. See United States Dep't of the Navy, Naval Training Ctr, Orlando, Fla., 53 FLRA 103, 108 (1997). When a collective bargaining agreement incorporates an agency regulation, the matter becomes one of contract interpretation. See United States Dep't of Defense, Hale Koa Hotel, 55 FLRA 651, 652 (1999). Consequently, as the Agency regulation relied on by the Union is incorporated into the agreement, the Authority applies the deferential "essence" standard to the Arbitrator's contract interpretation, not the de novo review standard. See id.

      The Authority will find an award deficient as failing to draw its essence from a 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 purpose 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) (OSHA).

      The Union argues that the Arbitrator did not apply the agreement and that if he had, he would have found the disputed provisions violated. However, the Arbitrator specifically found that the Agency did not violate the agreement in conducting its ranking and selection process for the disputed GS-14 positions. See Award at 17. In particular, the Arbitrator found that the decisions of the ranking and selecting officials to focus on performance and experience in working on complex income tax cases within the year prior to the selection was permissible. Although the Arbitrator did not specifically address each disputed provision, the Authority has held repeatedly that there is no obligation to do so. See, e.g., United States Customs Serv., Office of Regulations and Rulings, 49 FLRA 1610, 1621 (1994). In addition, while the Union asserts that the Agency officials did not follow certain procedures in conducting the ranking and selection process, it does not identify provisions mandating those procedures and provides no other argument establishing that the Arbitrator's award is implausible, irrational, or in manifest disregard of the parties' agreement. Accordingly, we find that the Union has not demonstrated that the award fails to draw its essence from the parties' agreement.

      The Union also contends that the Arbitrator's award violates the IRM and the agreement because he declared the Union's arguments concerning the ranking process moot. However, the Union does not specify the [ v58 p393 ] provisions with which the award allegedly conflicts, and the record does not disclose a provision applicable to the Union's claim. Moreover, although the Arbitrator stated that the Union's arguments concerning the ranking process were moot, he did address those arguments by determining that the ranking official considered the applicable agreement provisions and followed them when creating the BQL. Thus, construing the Union's contentions as claims that the award is contrary to the IRM and fails to draw its essence from the agreement, we find that the Union has not demonstrated that the award is deficient on these grounds.

2.     The award is not contrary to § 7116(a)(2) of the Statute.

      The Union asserts that the award is contrary to § 7116(a)(2) of the Statute because the Agency discriminated against Marcinek based on protected activity in making the selection. When a grievance under § 7121 of the Statute involves an alleged unfair labor practice (ULP), the arbitrator must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under § 7118. See, e.g., AFGE, Local 3529, 57 FLRA 464, 465 (2001). In a grievance alleging a ULP by an agency, the Union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. See id. As in other arbitration cases, the Authority defers to an arbitrator's findings of fact. See id.

      In Letterkenny Army Depot, 35 FLRA 113, 117-23 (1990) (Letterkenny), the Authority addressed the analytical framework to be applied in cases alleging a violation of § 7116(a)(2) of the Statute. Under this framework, if the required prima facie showing is made, an agency may seek to establish the affirmative defense that there was a legitimate justification for its action and that the same action would have been taken even in the absence of protected activity. Letterkenny, 35 FLRA at 118.

      The Arbitrator's findings -- that assuming the Union established a prima facie case, the Agency established a legitimate justification for its action -- are consistent with the Letterkenny requirements. Specifically, the Arbitrator determined that the Agency had established that Marcinek had worked primarily on cases other than complex income tax cases within the last year, and the Arbitrator rejected the Union's assertion that the Agency's reason for not selecting Marcinek was pretextual. In so doing, the Arbitrator determined that Marcinek and the selecting official had a generally positive relationship despite disagreements, that the selecting official did not take any action against Marcinek for uttering an anti-management epithet, and that one of the selectees was a union official.

      The Union disputes the Arbitrator's finding, claiming that Marcinek and the selecting official had a contentious labor-management relationship. However, the evidence provided by the Union fails to establish that the Arbitrator erred in finding that a generally positive relationship existed. Although the Union cites examples of disagreements between Marcinek and the selecting official, the Arbitrator noted that some disagreements occurred. In addition, the Union does not dispute that no action was taken against Marcinek or that one of the selectees was a union official. The Union has therefore not established that the Arbitrator's evaluation of the evidence and his conclusion based thereon are improper. Thus, as we defer to an arbitrator's factual findings, we find that the Union has not demonstrated that the award is contrary to § 7116(a)(2) of the Statute.

3.     The award is not contrary to Title VII, the ADEA or the Rehabilitation Act.

      The Union alleges that the award is contrary to Title VII of the Civil Rights Act, the ADEA, and the Rehabilitation Act. There is no dispute that the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (McDonnell Douglas) applies in this case. Under this framework, if a prima facie case is established, then the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. If the employer meets this requirement, then the burden shifts to the employee "to show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." Id. at 804. The determination as to whether an employer's proffered justification for not selecting an applicant is pretext is a factual one. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

      Here, the Arbitrator applied the McDonnell Douglas framework and there is no challenge to the Arbitrator's assumption that a prima facie case was made with respect to each discrimination claim. The issues are whether the Arbitrator erred in concluding that the Agency's reason for not selecting the grievants was legitimate and whether the Arbitrator erred in concluding that this reason was not pretextual.

a.     The Arbitrator did not err in concluding that the Agency had a legitimate reason for its action.

      The Arbitrator found that the Agency had established that Marcinek, Freid, Polsenski and Lancaster had not worked on complex income tax cases in the year [ v58 p394 ] prior to the selection action, and that this provided a legitimate, non-discriminatory basis for their non-selections. [n2]  Contrary to the Union's assertion, there is no indication in the record that the Arbitrator found discrepancies in the Agency's ranking and selection process. In this regard, the Arbitrator specifically determined that the decision of both the ranking and selecting officials to focus on recent experience in working on complex income tax cases as the key factor was permissible.

      Nothing in the award indicates that the Arbitrator erred in finding that the Agency did not act improperly in determining what aspects of the job and the applicants' backgrounds were most important in distinguishing among the applicants. The Arbitrator found that the Agency had established that the grievants had less recent experience relevant to the position than the selectees, and that explained why the selectees were ultimately selected. As there is nothing in the Arbitrator's award or the record demonstrating that he applied a standard that is contrary to law, and because we defer to the Arbitrator's factual findings, we conclude that this argument does not provide a basis for finding the award deficient.

b.     The Arbitrator did not err in concluding that the Agency's reason was not pretextual.

      The Union alleged, with respect to each grievant, that the Agency's reason for non-selection was pretextual. The Arbitrator specifically rejected the allegations.

      With respect to Marcinek, the Union asserted that the selecting official discriminated against her based on gender. However, as stated previously, the Arbitrator disagreed, finding that despite disagreements, Marcinek and the selecting official had a "generally positive" relationship. Award at 16. Regarding Freid and Polsenski, the Union asserted that alleged comments by the selecting official and the ranking official indicate discrimination based on their age. The Arbitrator determined, however, that these contentions were not persuasive and that the Union did not establish that the Agency's actions were pretextual. Finally, the Union contended that Lancaster was performing higher-graded duties at the time the selections were made and, therefore, the Agency's basis for not selecting Lancaster was based on his handicap. The Arbitrator, based on the record evidence indicating that Lancaster's recent work did not involve complex income tax cases, rejected the Union's pretext assertion.

      Nothing in the Arbitrator's award or the Union's exceptions demonstrates that the Arbitrator applied a standard that is contrary to law in this case. Instead, the Arbitrator's finding that the Union's assertions did not sufficiently establish pretext is a finding of fact based on the evidence before him. Because we defer to an arbitrator's factual findings, we find that this argument does not provide a sufficient basis for finding the award deficient.

      Based on the foregoing, we find that the Union has not demonstrated that the award is contrary to Title VII, the ADEA or the Rehabilitation Act.

B.     The Arbitrator's determination that no prohibited personnel practice occurred is not deficient.

      The Union asserts that the Arbitrator erred in failing to find a prohibited personnel practice. In this regard, the Union contends that although the Arbitrator's rationale for his conclusion that no prohibited personnel practice had occurred "was offered in the proper form," it was not accompanied by any analysis. Exceptions at 15. As this argument is supported by no cited authority and no further explanation, it is a bare assertion that provides no basis for finding the award deficient. See, e.g., AFGE, Local 2052, 56 FLRA 604, 607 (2000). Accordingly, we deny this exception.

C.     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, e.g., SSA, Chicago North Dist. Office, 56 FLRA 274, 278 (2000). 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 hearing. See id.

      The Union asserts that the Arbitrator erred in finding that the selecting official was unaware of the applicants' ranking values. The parties disputed that matter at hearing. See Award at 14. Therefore, it cannot now be challenged as a nonfact. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 502 (2000). Accordingly, we find that the Union has not demonstrated that the award is based on a nonfact. [ v58 p395 ]

D.     The Arbitrator did not exceed 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 by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996).

      The Union contends that the Arbitrator exceeded his authority by failing to resolve the claims of O'Hara and Malatesta. Contrary to the Union's assertion, however, the record demonstrates that the Arbitrator's award included these two grievants. In this regard, the Arbitrator referred to "grievants" throughout the analysis portion of the award addressing the ranking and selection process, with one exception, [n3]  and only referred to specific grievants when discussing the discrimination claims, claims not alleged by either O'Hara or Malatesta. See Award at 14-17. Further, the Arbitrator concluded that the Union did not sustain its burden to prove that the Agency violated the parties' agreement or the law in its ranking and selection of the "six [g]rievants." Award at 17. Thus, we find that the Arbitrator did resolve the claims of O'Hara and Malatesta.

      The Union also contends that the Arbitrator exceeded his authority by not explaining his justification for ignoring prior arbitration awards and failing to rule on the application of IRM § 0335 to the non-selection of the grievants as required by the agreement, Article 42, § 8 and Articles 4 and 13, respectively. Even assuming that the Arbitrator did disregard prior arbitration awards and did not specifically rule on the application of IRM § 0335, he was not obligated to explain his reason for doing so and his failure to do so provides no basis for finding the award deficient. See United States Dep't of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, N.C., 41 FLRA 56, 61 (1991) (there is no general obligation to set forth specific findings or rationale to support an award). Thus, we find that these arguments provide no basis on which to find the award deficient.

      Based on the foregoing, we find that the Union has not demonstrated that the Arbitrator exceeded his authority.

V.     Decision

      The Union's exceptions are denied.


Appendix

2.     IRM § 0335 provides, in pertinent part, that:

§ 335.213 Applicability of Higher Order Regulations on Promotion Evaluation and Selection Procedures
(1) FPM Supplement 990-1, Part 300, Subpart A states that employment practices that affect the recruitment, measurement, ranking, and selection of individuals . . . shall be based on a job analysis.
. . . .
§ 0335.214 Definitions
(15) Job Analysis - the critical process necessary to determine the minimum qualification requirements, to ascertain the KSAOs to be used to identify the candidates who can be expected to perform in a successful manner, and to determine the applicability of appropriate measuring instruments (methods). A thorough job analysis, which fully defines the requirements of the vacancy, should provide the necessary information and documentation to meet the validity and job-relatedness requirements of FPM 335 and the content validity requirements of the Uniform Guidelines on Employee Selection Procedures.
. . . .
§ 0335.24(5)
(b) Vacancy announcements are to be clearly written, with sufficient information for the employee to understand what . . . qualifications . . . are required, what evaluation methods are to be used and what the employee has to do in order to apply
. . . .
(c) [V]acancy announcements . . . must contain . . .
6. minimum qualification required, including selective placement factors . . . .
8. evaluation methods to be used by the ranking official or panel;
. . . .
§ 0335.261 Developing the Evaluation Process
(1) Developing the evaluation process is an extremely important step towards an effective job placement process. IRS managers, with assistance [ v58 p396 ] provided by the Personnel Office, should give careful consideration to this important process.
(2) A comprehensive job analysis provides the basis for the evaluative process. Vacancies must be analyzed to determine what knowledges, skills, abilities, and other personal characteristics (KSAOs) are needed and at what level they are required . . . .
(3) The result of the job analysis is the development of specific evaluation criteria, and standardized instructions for their use.
. . . .
§ 0335.263 Evaluation Methods
(1) Anyone responsible for the placement of individuals on various jobs needs to take into account as much pertinent information as is available on the candidates for the positions in mind. Such information typically is available from application forms, performance appraisals, interviews, employment records and other sources. These sources should reveal the differences among job candidates in terms of the knowledges, skills, abilities, and other personal characteristics needed to perform, or to learn to perform the jobs under consideration.
. . . .
(3)(c)(3) [A] patterned or standardized interview process should be used.
. . . ..
§ 0335.264 Ranking Official and Evaluation Panels
(4) Responsibilities of . . . Ranking Officials:
(a) Ranking officials . . . should be carefully selected and trained in their responsibilities, and in the merit promotion process, so that evaluations by different raters will be comparable and dependable.
(b) Ranking officials . . . should be rotated periodically to provide all managers with an opportunity to develop expertise in promotion operations, and also to ensure they do not become "stale."
(c) Ranking officials . . . must be instructed by the Personnel representative to avoid discriminatory non-merit considerations . . . .

3.     The agreement provides, in pertinent part, that:

Article 2 Precedence of Law and Regulation
Section 2 To the extent that provisions of the IRM Manual are in specific conflict with this Agreement, the provisions of this Agreement will govern.
. . . .
Article 13 Promotions/Other Competitive Actions
Section 3 Vacancy Announcements
A. Vacancy announcements will . . . contain the following:
. . . .
7. selective placement factors, if any;
8. evaluative methods to be used by the ranking panel or official . . . ;
statement of roster, when applicable;
. . . .
Section 5 Ranking Procedures
. . . .
B. It shall be the responsibility of the panel or official to consider the appraisal, relevant experience and training, relevant incentive awards, and such other relevant material or . . . methods deemed necessary.
C. All applicants will be treated uniformly to the greatest extent possible. . . .
. . . .
O. Any selection technique . . . will be uniformly applied to all BQ applicants . . . .
. . . .
Article 42 Institutional Grievance Procedure
Section 8 Precedence of Decisions
Grievances resolved by arbitration or at the last step of the procedure will be precedential throughout the unit unless otherwise agreed to in writing by the Employer and the Union. . . .
. . . .
Article 43 Arbitration
Section 4(A)(9) Consistent with Article 2 of the Agreement arbitrators must follow laws, binding Government- wide regulations, and applicable precedent