American Federation of Government Employees, Local 2006 (Union) and Social Security Administration, Region III, Philadelphia, Pennsylvania (Agency)

[ v58 p555 ]

58 FLRA No. 135

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2006
(Union)

and

SOCIAL SECURITY ADMINISTRATION
REGION III
PHILADELPHIA, PENNSYLVANIA
(Agency)

0-AR-3541

_____

DECISION

May 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 Gladys Gershenfeld 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 and applicable law by failing to select the grievant for a position. For the reasons set forth below, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      In response to a vacancy announcement, the grievant, a GS-9 Benefit Authorizer, applied for a GS-11 Claims Authorizer position. He was one of 105 applicants, of whom 21 candidates were selected. The grievant was not selected, and he filed a grievance challenging his non-selection.

      The issue before the Arbitrator, as agreed to by the parties, was:

Did the Agency violate the [c]ontract and applicable [l]aw by failing to select the grievant from the list of well qualified candidates for Vacancy Announcement 2000-43?

      If not [sic], what shall the remedy be?

Award at 2.

      Before the Arbitrator, the Union claimed that the Agency violated Article 26 and the intent of the merit promotion plan to have openness and objectivity in selections. [n1]  The Union asserted that, contrary to the contractual requirement that all assessment criteria necessary for selection will be established by the assessment panels, the selecting officials developed their own criteria, not made known to the applicants.

      The Arbitrator reviewed the provisions of Article 26 and the selection process. The Arbitrator stated that the selecting officials "sought a rational way to find the best candidates with only the applications as resources." Award at 3-4. The Arbitrator also found that the selecting officials developed a series of "steps" identifying areas of performance that would indicate candidates with the most promising record. Id. at 4, 5. The Arbitrator added that the selecting officials decided that an employee's experience and receipt of performance awards were areas of performance that they would consider. Id. at 5. The Arbitrator noted that a selecting official referred to the series of steps as "filtering." Id.

      The Arbitrator found that the grievant's application was rejected at the step concerned with performance awards because he had not received a particular performance award. See id. The Arbitrator further found that "[o]ther steps, such as under-representation or stagnation in grade, did not apply in this case" and that "[o]verall length of service is not a standard in the plan." Id.

      Consequently, the Arbitrator determined that the selecting officials were not bound by any particular methods with regard to their decision-making process. See id. at 6. The Arbitrator further determined that the selection process was rational and objective and that the selecting officials "were fair in following the areas of performance in the criteria and the applications and in explaining the reasons for each step." Award at 6. Accordingly, the Arbitrator concluded that the Agency did not violate the agreement or law in not selecting the grievant, and she denied the grievance. [ v58 p556 ]

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award does not draw its essence from the agreement, is based on nonfacts, and does not conform to law, rule, and regulation.

      Specifically, the Union argues that the Arbitrator's finding that selecting officials "had to devise a method" to identify the most qualified candidates is contrary to Article 26, Section 11A because it impermissibly permits the selecting officials to devise a third option to identify the most qualified candidates. [n2]  Exceptions at 3. The Union also argues that the Arbitrator's findings that selecting officials were not provided with standards and that they had to devise a method to filter out the candidates cannot in any rational way be derived from Article 26, Section 9. [n3]  See id. The Union further argues that the Arbitrator's findings that the "other steps, such as under-representation or stagnation in grade, did not apply in this case[]" and that the "[o]verall length of service is not a standard in the plan[]" is contrary to Article 26, Section 11C. [n4]  Exceptions at 4.

      Further, the Union alleges that the award is based on nonfacts; namely, that the selecting officials were not provided with standards for the decision-making process and that the selecting officials had only the applications as resources.

      Finally, the Union contends that the award is inconsistent with Agency regulations, specifically, Personnel Policy Manual Chapter S335-1 National Promotion Plan (Chapter S335-1), and management's statutory obligation to bargain in good faith. In this regard, the Union claims that the Arbitrator allowed the selecting officials to disregard the Agency's rules and criteria. In addition, the Union contends that if the Arbitrator correctly found that the selecting officials had no guidance or training, then the Agency violated its obligation to bargain in good faith under the Statute by violating an earlier memorandum of understanding (MOU) requiring the development of guidance and training materials.

B.     Agency's Opposition

      The Agency contends that the award draws its essence from the agreement and that it is not based on nonfacts. With respect to the Union's claim that the award is contrary to Chapter S335-1, the Agency asserts that § 2429.5 of the Authority's Regulations precludes consideration of this regulation because it was not presented before the Arbitrator. [n5]  The Agency further argues that, in any event, Chapter S335-1 does not apply to positions covered by the Article 26 procedures.                                                       

IV.     Analysis and Conclusions

A.     Consideration of the issues and attachments pertaining to Chapter S335-1 and the MOU is barred by § 2429.5

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreation Area, San Francisco, Cal., 55 FLRA 193, 195 (1999). There is no indication in the record that the Union presented to the Arbitrator, as it has in its exceptions, the issue and the attachment designated as Tab F pertaining to Chapter S335-1. The Union's assertion regarding Chapter S335-1 relates to the selecting officials actions during the selection process. As it relates to the Agency's actions, this issue and the attachment could, and should, have been presented to the arbitrator. See, e.g., AFGE, Local 2052, 56 FLRA 604, 607 (2000). There is also no evidence in the record that the Union presented to the Arbitrator, as it has in its exceptions, the issue and the attachment designated as Tab G pertaining to the Agency's obligation to bargain in good faith under the Statute. The Union's assertion regarding the Agency's obligation to bargain in good faith under the Statute relates to the Agency providing the selecting officials guidance and training under an earlier MOU. As it relates to the Agency's actions, this issue and the attachment could, and should, have been presented to the arbitrator. See id. Accordingly, we are barred from considering these issues and attachments under § 2429.5.

B.     The award draws its essence from the agreement

      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 [ v58 p557 ] 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).

      We find that the Union's exception fails to meet any of the above criteria. The Union's exception essentially maintains that the Arbitrator's findings concerning the decision-making process of the selecting officials violate various provisions of Article 26. In this case, the Arbitrator reviewed the provisions of Article 26 and the selection process. The Arbitrator determined that the selecting officials were not bound by any particular methods with regard to their decision-making process. See Award at 6. The Arbitrator further determined that the selection process was rational and objective and that the selecting officials "were fair in following the areas of performance in the criteria and the applications and in explaining the reasons for each step." Id. The Union fails to demonstrate that such an interpretation and application of Article 26 is implausible, irrational or evidences a manifest disregard of the agreement. Accordingly, we deny this exception.

C.     The award is not based on nonfacts

      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 United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union disputes as nonfacts the Arbitrator's findings that the selecting officials were not provided with standards for the decision-making process and that the selecting officials had only the applications as resources. The disputed factual findings pertain to the nature of the criteria used by the selecting official to identify the most qualified candidates for the GS-11 Claims Authorizer position. These facts were disputed before the Arbitrator. As such, they do not provide a basis for finding the award deficient. Accordingly, we deny this exception.

V.     Decision

      The Union's exceptions are denied.


APPENDIX

Article 26, Section 1 of the parties' agreement provides in pertinent part:

It is the intent of the parties to redesign the merit promotion process as a corollary to the two tier appraisal system created in Article 21 and to assure openness and objectivity in merit promotion selections.

Article 26, Section 9 of the parties' agreement provides in pertinent part:

All assessment criteria necessary for selection will be established by the Assessment Panels. The selecting official will communicate to the Assessment Panel any factors which should be considered important for the position to be filled.

Article 26, Section 11C of the parties' agreement provides in pertinent part:

If the vacancy is one for which an underrepresentation exists and is targeted occupation . . . and there are well- qualified candidates who would reduce the underrepresentation, then the selecting official will give serious consideration to those individuals who would reduce the underrepresentation. If an underrepresentation is not present, then the selecting official will seriously consider providing upward mobility for those well-qualified candidates who have been stagnated in grade.

The Assessment Panel Handbook provides in pertinent part:

Development of Assessment Criteria
All assessment criteria, including crediting plans and point values, where applicable, will be published with the vacancy announcement.



Footnote # 1 for 58 FLRA No. 135 - Authority's Decision

   The relevant portions of Article 26 and other referenced materials are set forth in the Appendix to this decision.


Footnote # 2 for 58 FLRA No. 135 - Authority's Decision

   Article 26, Section 11A provides two options by which a selecting official can identify the most qualified individuals after a well-qualified list is established.


Footnote # 3 for 58 FLRA No. 135 - Authority's Decision

   Article 26, Section 9 provides that all assessment criteria necessary for selection will be established by the assessment panels.


Footnote # 4 for 58 FLRA No. 135 - Authority's Decision

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