United States, Department of Labor, Washington, D.C. (Agency) and American Federation of Government Employees, Local 12 (Union)

[ v59 p511 ]

59 FLRA No. 84

UNITED STATES
DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

0-AR-3665

_____

DECISION

December 15, 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 Irwin Kaplan 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 grievance alleged that the Agency's violation of the collective bargaining agreement resulted in the non-selection of two employees for certain positions. The Arbitrator denied the grievance as to one employee and sustained the grievance as to the other employee. The Arbitrator found that the Agency's violation of the agreement caused the Agency to fail to select that employee, and awarded her backpay.

      The Agency does not challenge the Arbitrator's finding that it violated the parties' agreement. Rather, it excepts solely to the remedy portion of the award. For the following reasons, we deny the exceptions.

II.      Background and Arbitrator's Award

      The two grievants, Alfreda Arrington (Arrington) and Sharon Yates (Yates), are employed in the Office of the Assistant Secretary for Administration and Management (OASAM), Information Technology Center (ITC). [ v59 p512 ]

      In September 2001, management posted a merit staffing vacancy announcement for three office management positions in OASAM/ITC, at grades GS-5, GS-6, and GS-7. The vacancy announcement for the three positions was posted in two different formats, a printed version and an electronic version for the Agency's "internal internet system[.]" Award at 3. On the printed version of the vacancy announcement, the Agency correctly designated "OASAM Status Candidates Only" as the area of consideration. Id. On the electronic version of the vacancy announcement, the Agency inadvertently changed the area of consideration from "OASAM STATUS CANDIDATES ONLY" to "DOL Employees-only." Id.

      At the time the vacancy announcement was posted, Yates held a GS-4 position and Arrington held a GS-5 position. A Certificate of Eligibles (certificate) was issued for the GS-5 position and contained the names of Yates and Arrington and another OASAM employee. The selecting official requested and received a "Noncompetitive Appointment List" which included two additional OASAM employees. Id. at 4. The selecting official selected an employee other than Yates or Arrington for the GS-5 position.

      A certificate was also issued for the GS-6 position containing the names of two employees: Arrington and an employee who was not an OASAM employee. That employee applied for the position under the electronic version of the vacancy announcement in which management had erroneously broadened the area of consideration beyond OASAM. The selecting official selected the non-OASAM employee for the GS-6 position.

      The GS-7 position was not filled. However, on February 25, 2002, that position was re-posted, at the GS-5, 6, and 7 levels, with promotion potential to GS-7, if an individual was selected at a lower level. Arrington applied for the position and was selected at her then current GS-5 level. See id. at 5. She was promoted to the GS-6 level after 90 days.

      The Union filed a grievance, alleging that management violated the agreement by broadening the area of consideration. See id. at 2. The grievance further alleged that the violation resulted in the inclusion of ineligible employees on the certificate and their consideration and selection for the announced positions. See id. The grievance was submitted to arbitration, where the Arbitrator framed the issues as follows:

1. Whether the failure to select Sharon Yates and Alfreda Arrington from the certificates of eligibility on which they were listed is a grievable/arbitrable issue.
2. Whether the Agency violated Article 16, Section 4(b)(3) of the collective bargaining agreement by broadening the area of consideration for certain merit staffing opportunities and, if so, whether the grievants suffered any harm warranting appropriate remedial action, including promotion, back pay, or priority consideration for future vacancies. [Footnote omitted.]

Id. 2-3. [n1] 

      The Arbitrator concluded that the Agency's failure to select Yates and Arrington from the certificates of eligibility was an arbitrable issue. [n2]  The Arbitrator further concluded that the Agency violated Article 16, Section 4(b)(3) of the parties' agreement by "mistakenly" broadening the area of consideration for the three vacancies in OASAM/ITC on the electronic version of the vacancy announcement. Id. at 9. However, the Arbitrator found that, notwithstanding the Agency's violation, Yates suffered no harm warranting appropriate remedial action when the Agency failed to select her for the GS-5 position. The Arbitrator stated that no ineligible employees appeared on the certificate for that position, even though the electronic version of the vacancy announcement had erroneously broadened the area of consideration beyond OASAM. Accordingly, the Arbitrator denied the grievance as it pertained to Yates.

      However, the Arbitrator sustained the grievance as it pertained to Arrington. As an initial matter and, for the same reasons stated with respect to Yates, the Arbitrator found that Arrington suffered no harm warranting appropriate remedial action when the Agency failed to select her for the GS-5 position. [n3]  Nevertheless, the Arbitrator found that, as a result of the Agency's violation of the parties' agreement, Arrington suffered harm warranting appropriate remedial action when the Agency failed to select her for the GS-6 position. The Arbitrator found that the Union established a prima facie case that Arrington would have been selected for the GS-6 position if the selectee's name had not appeared on the certificate. See id. at 12. Noting that only the names of Arrington and the selectee, who was not an OASAM employee, appeared on the certificate for the GS-6 position, the Arbitrator found that the [ v59 p513 ] selectee would not have been included on the certificate if the electronic version of the vacancy announcement had not broadened the area of consideration beyond OASAM in violation of the agreement.

      The Arbitrator also stated that Arrington had met the minimum qualifications for that position and had received a rating of "outstanding" on her performance appraisal. The Arbitrator added that, after Arrington was initially denied the GS-6 position and then later selected, she quickly demonstrated her ability to perform at the GS-6 level. Id. In this regard, the Arbitrator stated that "[i]t is difficult to assume that her written and verbal skills improved so markedly over so short a period of time." Id.

      The Arbitrator further found that the selecting official's testimony failed to overcome the prima facie case established by the Union. See id. The Arbitrator stated that, although the selecting official testified that Arrington's written work showed various errors, the Agency did not support that testimony by introducing evidence into the record. See id. The Arbitrator also stated that, although the selecting official testified that the selectee had been rated higher than Arrington by the interview panels, that interview procedure did not conform to the requirements of the parties' agreement that the selecting official, herself, perform the interviews. See id. Accordingly, the Arbitrator sustained the grievance as to Arrington.

      As a remedy, the Arbitrator directed that the Agency make Arrington whole by paying her the additional wages and benefits, with interest, she would have earned had she been selected for the GS-6 position at the time the non-OASAM employee was improperly selected. See id. at 13.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency does not except to the Arbitrator's finding that it violated the parties' collective bargaining agreement when it broadened the area of consideration on the vacancy announcements. Rather, the Agency contends that the Arbitrator's remedy is inconsistent with management's right to hire under § 7106(a)(2)(C) of the Statute and is contrary to the Back Pay Act.

      Specifically, the Agency argues that the remedy does not satisfy prong II of the test set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See Exceptions at 8. The Agency asserts that the remedy does not represent a reconstruction of what management would have done if it had not violated the parties' agreement. According to the Agency, the record shows that, even in the absence of the violation of the parties' agreement, the grievant would not have been selected because she was not considered by management to be the best-qualified applicant for the position. In support, the Agency cites the testimony of the selecting official that the grievant's written work contained more errors than that of the selectee. The Agency states that the remedy awarded "substitute[s] the Arbitrator's judgment for that of management and, as such, excessively interferes with the exercise of a management right under 5 U.S.C. 7106(a)(2)(C)." Id. at 9. In support, the Agency cites United States Dep't of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Okla., 58 FLRA 109 (2002) (Federal Bureau of Prisons).

      Furthermore, the Agency contends that the remedy does not meet the "but for" requirement of the Back Pay Act. Exceptions at 11. The Agency claims that the Arbitrator did not find that the Agency's violation of the parties' agreement constituted an unjustified or unwarranted personnel action. See id. The Agency argues that, to the contrary, "management complied with merit staffing practices and principles, personnel regulations and the law in making the selection for the positions advertised." Id.

B.     Union's Opposition

      The Union contends that the Agency has not demonstrated that the award affects management's right to hire under § 7106(a)(2)(C) of the Statute. The Union disputes the Agency's assertion that the grievant would not have been selected for the GS-6 position in the absence of a violation of the collective bargaining agreement. The Union argues that the grievant was qualified for the position and "was selected by management for the same job after it was re-advertised." Opposition at 2. The Union also argues that this case is distinguishable from Federal Bureau of Prisons, in which the Authority found that the arbitrator's enforcement of the collective bargaining agreement excessively interfered with management's rights to determine internal security practices and to assign work. The Union states that, in this case, the Arbitrator's enforcement of the agreement did not affect those rights.

      The Union also contends that the award is consistent with the Back Pay Act. According to the Union, the Arbitrator found that, by mistakenly expanding the area of consideration for the vacant GS-6 position, the Agency caused Arrington to be denied selection for that position.

IV.      Analysis and Conclusions

A.      The Award Is Not Contrary to Law

      The Agency contends that the remedy is contrary to both § 7106(a)(2)(C) of the Statute and the Back Pay Act. [ v59 p514 ]

      When an exception challenges an award as contrary to law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dep'ts of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.      § 7106(a)(2)(C) of the Statute

      In BEP, the Authority set forth the framework it uses to resolve exceptions which contend that an arbitrator's award is contrary to management rights under § 7106 of the Statute. 53 FLRA at 151-54. Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test established in BEP to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an 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. 53 FLRA at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contractual provision at issue. 53 FLRA at 154.

      The Authority has held that an award requiring an agency to make a selection for an appointment affects management's rights under § 7106(a)(2)(C) of the Statute. See AFGE, Council 220, 54 FLRA 1227, 1235 (1998) (Authority held that an award which placed the grievant in a position affected management's right to select); United States Dep't of Health and Human Services, Soc. Sec. Admin., San Francisco Region, 48 FLRA 293, 302 (1993) (Authority found that an award ordering retroactive promotion of the grievants affected management's right to select). Here, the Arbitrator ordered the Agency to provide Arrington backpay as a remedy for the Agency's failure to select her for a position. We conclude that, by finding that the Agency failed to select Arrington based on an improper expansion of the area of consideration, the award affects management's right to select.

      Applying the BEP framework, the Agency expressly concedes that prong I is satisfied. See Exceptions at 8-9. In light of this concession, we need not further address prong I.

      We further find that prong II of the BEP test has been met because the Arbitrator's award, directing the Agency to make Arrington whole by paying her the additional wages and benefits with interest that she would have earned had she been selected for the GS-6 position at the time the non-OASAM employee was improperly selected, is a proper reconstruction. See Award at 13.

      In this connection, the Arbitrator found that Arrington met the minimum qualifications for the GS-6 position. See id. at 12. The Arbitrator rejected the Agency's argument that Arrington would not have been selected for the GS-6 position. The Arbitrator found that, although the selecting official testified that Arrington's written work showed various errors, the Agency did not support that testimony by introducing evidence into the record. See id. The Arbitrator also noted that, after Arrington was selected for a position at the GS-5 level, she was promoted to the GS-6 level shortly thereafter because "she quickly demonstrated her ability to perform at the GS-6 level." Id. The Arbitrator held that "[i]t is difficult to assume that her written and verbal skills improved so markedly over so short a period of time." Id. The Arbitrator also stated that, although the selecting official testified that the selectee had been rated higher than Arrington by the interview panels, that interview procedure did not conform to the requirements of the parties' agreement. See id.

      In its exceptions, the Agency contends that the grievant was not considered by management to be the best qualified applicant for the position. In support, the Agency cites, as it did before the Arbitrator, the testimony of the selecting official that the grievant's written work contained more errors than that of the selectee. To the extent the Agency claims that Arrington was not as qualified as the selectee for the GS-6 position, the claim provides no basis for finding the award deficient. In this regard, Arrington and the selectee for the GS-6 position were the only employees on the certificate. The Agency does not dispute the Arbitrator's findings that Arrington met the minimum qualifications for the GS-6 position and that the selectee was improperly included on the certificate. See Award at 12.

      Finally, the Agency's reliance on Federal Bureau of Prisons is misplaced. Based on that case, the Agency argues that the award does not satisfy prong II of the BEP analysis because the award excessively interferes with § 7106(a)(2)(C). However, the excessive interference standard discussed in Federal Bureau of Prisons applies to prong I, and not prong II, of the BEP analysis. See 58 FLRA at 110.

      Based on the above, we conclude that the award satisfies the BEP framework and that there is no basis for finding the award deficient as contrary to § 7106(a)(2)(C) of the Statute.

2.     The Back Pay Act

      Under the Back Pay Act, an award of backpay is authorized where an arbitrator finds that: (1) the [ v59 p515 ] aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218 (1998). The Arbitrator's findings in this case satisfy the requirements of the Back Pay Act.

      With regard to the first requirement, the Arbitrator found that Arrington was qualified for the GS-6 position and that the Agency's violation of the parties' agreement by broadening the area of consideration led to her non-selection. This determination by the Arbitrator that the parties' contract was violated constitutes a finding that an unjustified or unwarranted personnel action occurred. Consequently, the award satisfies the first requirement of the Back Pay Act. See United States Dep't of Labor, Wash., D.C., 55 FLRA 1019, 1022-23 (1999).

      As to the second requirement, the Arbitrator found that Arrington would have been selected for the higher-level position and directed the Agency to make the grievant whole for the lost wages she incurred as a result of the Agency's improper failure to select her. The Arbitrator's award satisfies the second requirement of the Back Pay Act. See id. at 1023.

      As both requirements of the Back Pay Act are met, we deny the Agency's exception.

B.      The Arbitrator Did Not Fail to Conduct a Fair Hearing

      We construe the Agency's claim that the Arbitrator failed to accord proper weight to the testimony of the selecting official as a contention that the Arbitrator failed to conduct a fair hearing.

      The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. AFGE, Local 1668, 50 FLRA 124, 126 (1995). Disagreements with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, will not establish that an award is deficient. SSA, Baltimore, Md., 55 FLRA 498, 501 (1999); AFGE, Local 3295, 51 FLRA 27, 32 (1995).

      The Agency has not demonstrated that the Arbitrator prejudiced the Agency or affected the fairness of the proceedings. Instead, the Agency claims that the Arbitrator failed to defer to testimony that was provided by the selecting official. In this regard, the Arbitrator found that the selecting official's testimony failed to overcome the prima facie case established by the Union that Arrington would have been selected for the GS-6 position if the selectee's name had not appeared on the certificate. See Award at 12. The Arbitrator stated that, although the selecting official testified that Arrington's written work showed various errors, the Agency did not support that testimony by introducing evidence into the record. See id. The Arbitrator also stated that, although the selecting official testified that the selectee had been rated higher than Arrington by the interview panels, that interview procedure did not conform to the requirements of the parties' agreement that the selecting official, herself, perform the interviews. See id.

      We find that the Agency's exception takes issue with the Arbitrator's evaluation of the evidence and his determination of the weight to be accorded such evidence. As stated above, disagreements with an arbitrator's findings of fact and evaluation of the evidence and testimony, including the credibility of witnesses and the weight given their testimony, do not establish that an award is deficient. Accordingly, we deny the exception.

C.      The Award Is Not Based on a Nonfact

      We construe the Agency's contention that the grievant was not considered by management to be the best qualified applicant for the position as a claim that the award is 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 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)).

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