United States, Department of Defense, Defense Commissary Agency, Fort Lee, Virginia (Agency) and National Association of Government Employees, Local R4-27 (Union)

[ v59 p554 ]

59 FLRA No. 97

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT LEE, VIRGINIA
(Agency)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R4-27
(Union)

0-AR-3708

_____

DECISION

January 5, 2004

_____

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 James T. Youngblood 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 sustained a grievance alleging that the Agency violated the selection procedure in the collective bargaining agreement. The Arbitrator initially ordered the Agency to recreate the selection process and to give each candidate "full and fair consideration for advancement." In a supplemental award, based on a motion for clarification filed jointly by the parties, the Arbitrator stated that when recreating the selection process, the Agency could consider any of the factors in the collective bargaining agreement, but must consider grade, time in grade and seniority.

      For the reasons that follow, we conclude that the exceptions cannot be resolved without additional clarification and we remand the case to the parties for re-submission to the Arbitrator, absent settlement, to determine the requirements placed on the Agency in the supplemental award. [ v59 p555 ]

II.     Background

      The Union filed a grievance alleging that the Agency violated Article 24, §§ 1-2 and Article 37, §§ 1, 5-7 of the agreement by not granting all candidates "full and fair consideration for advancement" when selecting candidates for two vacancies for Commissary Management Specialist (Computer Assisted Ordering) Trainee GA-1144-5 with promotion potential to GS-07. Award at 5-6.

      In 2001, two Agency employees, employed as part-time cashiers for a relatively short period of time, attended training in computer assisted ordering (CAO). Id. at 3. According to the Commissary Manager, the two part-time employees were sent to the training because the Agency could spare them. Id. After receiving the CAO training, the two part-time employees began performing the CAO duties at the Agency. Id.

      The Agency, in 2002, posted a merit promotion announcement advertising two vacancies for a Commissary Management Specialist Trainee, a position requiring the employee to work with CAO. Id. at 1. The announcement, limited to permanent employees in the Agency and Veterans Readjustment Act employees in the Agency, stated, "[a]ny permanent DeCA employee in the area of consideration, with at least one-year of general experience at the GS-3 grade level, or higher, will be considered." See id.

      After the announcement was posted, some Union members complained that the Agency had pre-selected certain employees for the positions by sending them to CAO training. Award at 4. In order to avoid any appearance of impropriety, the Agency decided to engage in a selection process in which the Agency does not normally engage. Id. The Human Resources Division compiled a certificate of seven applicants, all of whom met the requirements in the vacancy announcement. Id. at 2. The Agency directed two managers to interview each candidate and then provide a list ranking the candidates. Id. at 4.

      The two managers interviewed all seven candidates but, according to their testimony, did not inquire about CAO training. Id. The managers both ranked the two part-time employees who had previously been sent to CAO training as the top candidates. Id. The managers could not remember the exact questions asked during the interviews or why the two part-time employees were ranked as the top candidates except that one manager testified that those two candidates "were more enthusiastic in their answers." See id at 5. Both managers testified that they were not aware the two candidates had been sent to CAO training. Id.

      Based on the managers' recommendations, the Commissary Manager selected the two part-time employees to fill the positions. Id. The two employees selected had less seniority than other employees on the list of eligible applicants. Id.

      The Union argued that the selection process was suspect and that the Agency violated Article 24, "Training and Employee Development" and Article 37, "Merit Promotion" of the agreement by not giving all candidates "full and fair consideration for advancement" because the selected employees were groomed for the positions. [n1]  Id. at 5, 7. The Union alleged that the selection process must not only be fair, but also must appear fair so that an observer can feel confident that the selection was well intentioned. Award at 8-9.

      The Agency argued that it did not violate the agreement because it could have selected any of the eligible candidates without stating the reasons for the selection and without using the selection panel process. Id. at 7. Even if it did violate the agreement, the Agency argued, according to Article 37, § 7 of the agreement, "[N]on-selection is not grievable under th[is] [A]greement's" grievance procedure. [n2]  See id. at 9.

      Although the Agency admitted that it did not fully consider each applicant's experience, training, education, awards and appraisals because the positions were trainee positions, it argued that it did everything possible to avoid any appearance of impropriety. Id. at 8.

      According to the Arbitrator, "[t]he only issue presented is did the Agency comply with the provisions of Article 37 of the collective agreement, relating to Merit promotions." [n3]  Id. [ v59 p556 ]

      The Arbitrator found that the Agency, by failing to fully consider all of the applicants' relevant training, experience, education, appraisals and awards, violated Article 37, §§ 1 and 5, which required the Agency to give all candidates "full and fair consideration for advancement[.]" Award at 8. The Arbitrator rejected the Agency's argument that the Agency was not required to consider all of the criteria because the vacancies were for trainee positions. Id. The Arbitrator found that the vacancies were merit promotions because the positions provided employees at grade 3 or 4 the opportunity to move to grade 5 with promotion potential to grade 7. Id.

      The Arbitrator concluded that the Commissary Manager "pre-selected" and "groomed" the two part-time employees for the vacancies when he sent them to CAO training in 2001. Id. at 9. Because of this pre-selection, other employees who would have "welcomed the opportunity" for advancement were "unfairly bypassed." See id.

      Finally, the Arbitrator explained that the non-selection was grievable because Article 37, § 7 expressly allows grievances alleging that the Agency failed to follow the proper selection process. Id. at 9.

      The Arbitrator ordered the Agency to recreate the selection process and conduct it in accordance with Article 37 of the agreement, giving each candidate "full and fair consideration for advancement." Id. In addition, the Arbitrator concluded that if, in the second selection process, the Agency selects candidates other than the two part-time employees originally selected, the selectees should receive back pay for the time lost in the higher grade. Id. at 10.

      The parties filed a joint motion requesting clarification from the Arbitrator on what factors should be considered in the selection process and how the process should be run. Supp. Award at 1.

      The Arbitrator reiterated his finding from the original award that the vacancies at issue were merit promotions within the meaning of Article 37. Id. at 2. The Arbitrator explained that employees must be given "full and fair consideration for advancement" and because all candidates met the minimum qualifications, the Agency may consider relevant experience, awards, training, education and appraisals and must consider grade, time in grade and seniority, in that order. Id. at 2-4. The Arbitrator interpreted the requirements on the Agency to mean:

[e]mployees in the higher grades, grades 4 if any, with the most on the job experience and length of service in grade should be considered first, then grade 3's depending on time in grade, and all else being equal seniority must be considered in selecting the employees to fill these new positions.

See Supp. Award at 2.

      To support his interpretation, the Arbitrator looked at Article 31 of the agreement, which states that selection for details and temporary promotions will be made by seniority if there are more volunteers than needed. Id. at 3. The Arbitrator found that if details and temporary promotions must follow seniority, then merit promotions should as well. Id. Finally, the Arbitrator maintained that the selection "should be automatic from the personal files of the candidates." See id.

      The Arbitrator ordered the Agency to follow the collective bargaining agreement when making the selection. Id. at 4. The Arbitrator explained that in order for the Agency to grant all candidates "full and fair consideration for advancement" the Agency "can consider any elements within Article 37, Section 5, but grade, time in grade and seniority must be considered as all candidates meet the basic minimum qualifications." Id.

III.     Positions of the Parties

A.     Agency's Exceptions

1.     The award is deficient because it is contrary to law.

      The Agency argues that the award is contrary to § 7106(a)(2)(A)-(C) of the Statute because it infringes on the Agency's right to select. Exceptions at 4. The Agency alleges that the award "does not give management any discretion to make judgments on the employees' relative ability to successfully perform the duties of the position but imposes a rote formula based on grade, time-in-grade [sic], and seniority." Id. Because the Arbitrator designated the criteria to be used in selection, the Agency argues it cannot exercise its right to select. Id. at 6. Finally, the Agency contends that the Arbitrator completely abrogated the Agency's right to select when he stated that the selection decision should be automatic based on the employees' personal files. Id.

      According to the Agency, the award violates "merit promotion principles and basic staffing guidelines established by the Office of Personnel Management and management's right to select from a pool of qualified candidates." Id. at 2. The Agency argues that 5 C.F.R. § 335.103(b)(4) requires agencies to determine which source(s) is most likely to best meet the agency's [ v59 p557 ] objectives and affirmative action goals as well as contribute new ideas and viewpoints. Id. By requiring the Agency to use grade, time in grade and seniority, the Agency argues it may not be able to comply with the regulations. [n4]  Id.

      The Agency argues that according to Authority precedent, an arbitrator may not preclude an agency from exercising its management rights and § 7106(a) guarantees agencies the right to "make the actual substantive selection or appointment." Exceptions at 5 (citing Army and Air Force Exch. Serv., Fort Knox Exch., Fort Knox, Ky., 8 FLRA 256 (1982)). Citing additional Authority precedent, the Agency argues that an award ordering an agency to make a selection based only on seniority, without allowing the agency to establish other relevant qualifications, improperly infringes on management's right to select. Id. at 5-6 (citing NFFE, Local 1482, 45 FLRA 52 (1992)). The Agency also argues that the Authority has held that provisions that do not allow management to select from among qualified candidates directly interfere with the right to select. Id. at 6 (citing AFGE, Local 12, 38 FLRA 1573, 1579 (1991)).

      The Agency finally argues that by defining the necessary qualifications for positions and stating that the selections should be automatic based on the candidates' personal records, the award infringes on the Agency's right to assign employees, assign work, and fill vacancies. Id. (citing Overseas Educ. Ass'n, Inc., 29 FLRA 734, 791 (1987)).

2.     The award is deficient because it fails to draw its essence from the agreement.

      The Agency argues that the Arbitrator created criteria for selection that do not exist because the language of the collective bargaining agreement does not require the Agency to make selections based on grade, time in grade and seniority. Exceptions at 2. In fact, the Agency alleges, following the Arbitrator's criteria would not allow the Agency to consider employees who may have held higher level positions or are currently wage grade employees. Id.

      The Agency argues that Article 37, § 5 does not require it to "[c]onsider a direct comparison amongst candidates regarding experience, training, awards, education and appraisals" because the language states, "[s]ources of information concerning a candidates [sic] possession of required skills, knowledge and abilities should include relevant experience, training, awards, education and appraisals." See id. at 3 (emphasis in original). According to the Agency, this provision merely provides examples of relevant factors and does not require the Agency to "compare these factors item by item for each candidate . . . ." Id.

      The Agency alleges that the rating criteria were identified in the vacancy announcement and the Union never objected or suggested that the criteria did not conform with the established standards and regulations. Id. The Agency explains that the criteria in the vacancy announcement were deliberately minimal because none of the candidates was eligible or qualified to be the Commissary Management Specialist and the Agency wanted to allow for development and advancement. Id. The Agency argues that it used the "upward mobility" announcement procedure and that nothing in the contract addresses this procedure. [n5]  Id.

3.     The award is deficient because it is based on a nonfact.

      The Agency argues that the Arbitrator erred when he found that selection for an "upward mobility" position is equivalent to a merit promotion selection. Exceptions at 7. The Agency alleges that this is a central fact underlying the award. Id. The vacancy announcement made it clear that the selection was for an "upward mobility" position, which the Agency argues does not utilize the same selection procedures as a merit promotion selection. Id. The Agency argues that because the position was in the Agency's "upward mobility" program and was not a merit promotion, the Human Resources considered only whether the candidates met the basic qualifications for the position and did not rank "best qualified" applicants. Id.

B.      Union's Opposition

1.      The award is not contrary to law.

      The Union explains that both the agreement and Authority precedent allow grievances based on the selection process, and that the grievance in this case is based on the process and not the selections themselves. Opposition at 6-7.

      The Union reiterates that the selection process must not only be fair but must appear to be fair as well. [ v59 p558 ] Id. at 7. The Union argues that the selectees in this case were "groomed" for the positions before the vacancies were announced, making the process unfair. Id.

      The Union explains that the Agency does not have unlimited discretion to make selections. Id. The Union argues that unlike the case the Agency cites where an arbitrator ordered an agency to select the most senior employee, the Arbitrator here "simply ordered that the selection be run again with consideration of the elements enumerated in the Negotiated Agreement" and that the Agency recreate a fair selection process, none of which is contrary to law. See id.

2.      The award draws its essence from the agreement.

      The Union argues that the award draws its essence from the agreement and that the Agency misquotes the award in an attempt to confuse the Arbitrator's reasoning and order. Opposition at 3. The Arbitrator simply ordered the Agency to comply with the collective bargaining agreement. Id. The Union alleges that Article 37 requires the Agency to give all employees "full and fair consideration for advancement" and that the Agency fails to comply with this language when it grooms certain employees for promotions. Id. at 3-4.

      The Union argues that the testimony concerning the selection process was inconsistent and that the process was suspect because the Agency did not keep any paper records and could not explain the reasons for selecting the two part-time employees. Id. at 4. The Union questions the Agency's assertion that the candidates did not, in their interviews, discuss their training in CAO and the fact that they were already performing the CAO functions. Id. The Commissary Manager, who made the ultimate decision, originally selected the two employees to attend CAO training and the Union contends that the process was unfair from the time the Agency sent the two employees to CAO training. Id. at 5.

      The Union alleges that the Arbitrator correctly found the selection process faulty because the Agency did not utilize the criteria for selection set forth in Article 37. Id. The Union contends that the Arbitrator, properly exercising his discretion, ordered the Agency to comply with the agreement and use the criteria directly from Article 37 when recreating the selection process. Id. at 5-6.

3.      The award is not based on nonfact.

      The Union alleges that the Agency's exception is an attempt to re-litigate the case and that the Agency may not file exceptions questioning the Arbitrator's factual findings on a disputed issue. Opposition at 8. The Union also argues that it is not clear from the award that the Arbitrator found that the process for selection for an upward mobility position is equivalent to the process used with merit promotions or how that determination affected the disposition of the case. Id. The Union alleges that the Arbitrator did not refer to "best qualified" in the technical sense and recognized that the employees referred for selection met minimal qualifications. Id. The Union reasserts that the issues were whether the selectees were "improperly favored" and whether the Agency considered the proper criteria. Id.

IV.     Analysis and Conclusions

      When an exception alleges that an award is contrary to law, the Authority reviews the question of law and the Arbitrator's award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998) (Local 1437). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in BEP. See United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 152-53 (1997) (BEP).

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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 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. United States Dep't of Def., Def. Logistics Agency, Def. Distribution Ctr., New Cumberland, Pa., 55 FLRA 1303, 1306-07 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      When an exception alleges that an award is based on nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, [ v59 p559 ] but for which a different result would have been reached by the arbitrator. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator´s factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See AFGE, Local 2459, 51 FLRA 1602, 1607-08 (1996).

      The Agency argues that the award violates its right to select because it "[i]mposes a rote formula that requires the selection of the employee based on who has the highest grade held at the closing of the vacancy announcement, time-in-grade [sic] and seniority." Exceptions at 4.

      For the following reasons, we conclude that the award contains inconsistent language making it impossible to determine if the award mandates selection or consideration.

      There is language throughout the supplemental award supporting a finding that the award mandates selection. The Arbitrator stated, "It is my view that as all the candidates are qualified . . . the positions should go to the candidates longest in grade 4, if any, and next to the longest in grade 3, and if that does not result in filling the two positions then follow seniority." Supp. Award at 3. Based on the language in Article 31 of the contract, "Details and Temporary Promotions," stating "Selection will be made in seniority order when there are more volunteers than needed[,]" the Arbitrator found that a merit promotion must also follow seniority. Id. The Arbitrator also stated, "Who makes the selection should be automatic from the personal files of the candidates." Id. Finally, the Arbitrator stated that despite all of the candidates meeting the minimum qualifications and being eligible for the vacancy "[this] cannot mean that the employer can make the selection without regard to the CAB [collective bargaining agreement], or those employees who have worked to attain their higher grades." See id. at 4.

      On the other hand, there is also language throughout the supplemental award supporting a finding that the Arbitrator mandated consideration only, not selection. The motion for clarification stated that the parties sought clarification as to "what should be considered when the agency runs the selection again, how the selection should be run, and what should be allowed to be considered during the selection process." See id. at 1. The Arbitrator, responding to the motion, stated that all employees must receive "full and fair consideration" and the Agency must consider experience, awards, training, appraisals and education. Id. at 2. The Arbitrator also commented,

[i]n my view this clearly means that employees in the higher grades, grades 4 if any, with the most on the job experience and length of service in grade, should be considered first, then grade 3's depending on time in grade, and all else being equal seniority must be considered in selecting the employees to fill these new positions

See id.

      In addition, the Arbitrator declared, "[t]o not consider grade, time in grade, and seniority would deny the employees the fruits of unionism and collective bargaining." Id. The Arbitrator then stated that if all the candidates are qualified for the vacancy, then the Agency should consider grade, time in grade and seniority. Id. at 3. Finally, the Arbitrator stated that the Agency must recreate the selection process and can consider the factors in the contract, but must also consider grade, time in grade and seniority in order to grant each candidate "full and fair consideration for advancement." See id. at 4.

      Given this conflicting language, it is not clear whether the Arbitrator mandated consideration or selection and the Authority is thus unable to analyze the exceptions. In that regard, if the award was intended to require selection, the award would affect management's right to select and would be analyzed under the BEP framework. AFGE, Council 220, 54 FLRA 1227, 1235 (1998) (citations omitted); United States Dep't of Veterans Affairs, Reg'l Office, Boston, Mass., 51 FLRA 1769, 1774-75 (1996). If the award was intended to require consideration, the award would not affect management's right to select and BEP would not apply. ACT, Evergreen and Rainier Chapters, 57 FLRA 475, 480 (2001) (citations omitted); AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 179 (1998). We remand this matter to the parties, absent settlement, for resubmission to the Arbitrator for resolution of the following issue: does the award require the Agency to select based on grade, time in grade and seniority, or does the award require the Agency to consider grade, time in grade and seniority in making the selection.

V.     Decision

      Based on the foregoing, we remand the award for action consistent with this decision. [ v59 p560 ]


APPENDIX

ARTICLE 24 - TRAINING AND EMPLOYEE DEVELOPMENT

Section 1. The EMPLOYER is responsible for ensuring employees receive sufficient training for performing the duties of their job. Employees may inform their supervisors of any training needs they feel relates to their work assignments. Such information shall be taken in consideration by the EMPLOYER in identifying training needs. When an employee is required to obtain job related training, that training will be provided at no cost to the employee. Employees will receive fair and equitable consideration for training consistent with the operational needs of the employer.

Section 2. Training employees to improve their proficiency for more responsible job assignments is important to the mission of the EMPLOYER. Employees should discuss their training interests with their supervisors.

Section 3. The EMPLOYER will keep abreast of the changing technology of its occupations and will provide required training in these areas. The UNION will be notified of proposed changes to training and development policies. Employees must apply reasonable effort, time and initiative in taking advantage of the training available to them. Employees should take advantage of training and educational opportunities which will add to the skills and qualifications needed by them for advancement in their occupational fields

ARTICLE 37 - MERIT PROMOTION

Section 1. The purpose of the Merit Promotion Plan is to ensure that employees are given full and fair consideration for advancement and to ensure selection from among the best qualified candidates.

Section 2. Vacancy announcements will be posted on the official bulletin board. The EMPLOYER will provide a copy of an announcement to an employee upon request. The Local will also be provided a copy.

Section 3. Announcements will be open a minimum of seven (7) days and will indicate a closing date, unless the announcement is open ended. Announcements shall state the minimum qualifications and any special skill or experience requirements.

Section 4. Employees are responsible for ensuring that their official personnel records are up to date and contain all pertinent experience and education.

Section 5. Rating criteria will be developed to conform with established standards and regulations, using only factors directly related to the job being filled. Sources of information concerning a candidates possession of required skills, knowledges and abilities should include relevant experience, training, awards, education and appraisals. Employees will be informed in the vacancy announcements of applicable procedures to be followed in applying for positions.



Footnote # 1 for 59 FLRA No. 97 - Authority's Decision

   Article 24 states that the employer is responsible for ensuring that employees receive sufficient training and that training is an important part of the Agency's mission. Award at 6. Article 37 states that employees are to be given "full and fair consideration for advancement" and that experience, train