United States, Department of Agriculture, Rural Development Oklahoma, Stillwater, Oklahoma (Agency) and American Federation of Government Employees, Local 3354 (Union)

[ v59 p983 ]

59 FLRA No. 173

UNITED STATES
DEPARTMENT OF AGRICULTURE,
RURAL DEVELOPMENT OKLAHOMA
STILLWATER, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3354
(Union)

0-AR-3645

_____

DECISION

May 21, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

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

      The grievance concerns an employee's right to file a grievance challenging her nonselection for a position outside the bargaining unit, i.e., a supervisory position. For the reasons that follow, the Agency's exception regarding arbitrability is denied. We deny the exceeds authority exception as it relates to the Arbitrator's failure to dismiss the grievance. However, we grant the exception as it relates to the Arbitrator's finding of a contract violation for the Agency's failure to process the grievance. We set aside the remedy provided in the award. We also remand the issue of payment of the Arbitrator's fee and expenses to the parties, absent settlement, for resubmission to the Arbitrator for a determination consistent with our decision.

II.     Background and Arbitrator's Award

      The grievant, a GS-1101-7 technician at the Agency's Antlers, Oklahoma location, held the second-ranking position in the office, i.e., the assistant to the Community Development Manager (CDM), for approximately five years prior to the events in question here and had temporarily filled the CDM position for three and one-half months during that time. Prior to the grievance, the grievant had applied for the Antlers CDM position while she temporarily held the position. At that time, the Agency's Human Resources Manager (HRM) determined that she did not possess the one year specialized professional experience required for the CDM position under Office of Personnel Management (OPM) standards. She grieved that determination under the agreement in effect at that time. The arbitrator found that the complaint was not arbitrable because it concerned a matter outside the conditions of unit employment (the McKee award).

      The matters at issue here relate to the grievant's application for the CDM position in the Agency's Ada, Oklahoma office. The HRM again determined that the grievant's application did not document possession of the one year specialized professional experience demonstrating the knowledge, skills and abilities necessary to be rated as basically qualified for the position, as set forth in the OPM's qualifications standard. Subsequent to this determination, but prior to the arbitration hearing, the grievant applied for the CDM position in a different organization, the Conway, Arkansas office of Arkansas Rural Development. The grievant was found qualified for that position but was not selected.

      The Union filed a grievance under the parties' collective bargaining agreement challenging the determination that the grievant was not basically qualified for the Ada CDM position and claiming that the grievant was the victim of discrimination, retaliation and reprisal because of her Union activities. The parties did not agree on the issues to submit to arbitration and the Arbitrator framed the issues as follows:

(1) Is the grievance arbitrable? And (2), If (1) is answered in the affirmative, did the Agency violate the terms of the Agreement and applicable rules and regulations of the Agency when it determined that the grievant was not basically qualified for the position of community development manager at the Ada, Oklahoma facility? And (3), If (2) is answered in the affirmative[,] what is the proper remedy?

Award at 4.

      The Arbitrator denied the Agency's argument that the grievance was barred by the doctrine of res judicata. In that regard, the Arbitrator found that the McKee award was based upon a prior bargaining agreement, rather than the current agreement, and because he was not provided a copy of that prior agreement he was unwilling to conclude that the McKee award was res judicata. [ v59 p984 ]

      The Arbitrator also looked at whether the parties' current agreement excluded this issue from the negotiated grievance procedure. Although the Arbitrator acknowledged the Authority precedent argued by the Agency in support of its belief that the agreement and its grievance process did not automatically extend to matters regarding the filling of a non-bargaining unit position, the Arbitrator found the precedent "to be inapplicable to this matter" and wondered "how such apply here, pro or con, under this record" because the cases did not address that with which the grievance was dealing. Award at 9.

      In his award on the merits, the Arbitrator again stressed that the remedy the grievant was seeking, to be considered qualified for the supervisory vacancy, was distinguishable from challenging her nonselection for the position. The Arbitrator noted that another agency, i.e., Arkansas Rural Development, had rated the grievant qualified for a similar position in its Conway office based upon an application that was essentially the same as the application for the position at issue here. However, while the Arbitrator found this fact was "not of major importance to the outcome here," he still thought that fact "ought not [to] escape notice, nor be wholly free of wonderment." Award at 13. The Arbitrator found that the Agency had rejected her application in a "more or less a summary fashion," and had apparently given the grievant little credit for her five years of service, including the three and one-half months she was temporarily the CDM of the Antlers Office. Id. The Arbitrator stated that, "under the circumstances it is somewhat disingenuous for the Agency to hold to the view that `[the grievant] did not meet the basic qualification for the position.'" Id. The Arbitrator also concluded that the Agency had violated the agreement and its rules and regulations when it refused to process the grievance under the negotiated grievance procedure, and ordered that the Agency's qualification determination of the grievant be expunged from all of the grievant's personnel files and records. Id.

      Returning to the merits of the Agency's qualifications determination, the Arbitrator stated that although he was "wholly persuaded" that the Agency violated its rules and regulations and the agreement when it determined that the grievant was not basically qualified for the Ada position, he noted the following:

I nonetheless am constrained to say that based on the record before me I am unable to find that [the grievant] was at least basically qualified for the position and thus should be given priority consideration for the next available future vacancy, which is the remedy requested by the Union.

Award at 14. The Arbitrator determined that:

the better remedy is to direct that in the future when a vacancy in the position occurs -- and the grievant applies for it -- in the event the Agency does not act favorably on her application, then and in that event and before the Agency may fill the vacancy on a permanent basis, it must first process her grievance -- should she choose to file one -- through the negotiated grievance procedure, including appeals, for purposes of having its determination affirmed.

Id. The Arbitrator further determined that the Agency was the losing party and must bear the expenses of the Arbitrator's fee and of the arbitration.

III.     Positions of the Parties

A.     Agency's Exceptions

1.     Arbitrability

      The Agency asserts that the arbitrability finding is contrary to law. The Agency argues that filling a non-bargaining unit position is not a bargaining unit condition of employment and thus is a permissive bargaining topic. Therefore, the Agency would have had to waive its statutory right to not agree to this topic for bargaining unit employees to be able to challenge their non-selection for non-bargaining unit positions such as this under the negotiated grievance procedure. However, the Agency asserts that any such agreement must be shown by clear and convincing evidence because the waiver of a statutory right is involved, and that no such clear and convincing evidence is present in this case. The Agency also challenges the Arbitrator's comments regarding his beliefs as to why employees should not be required to use agency administrative grievance procedures to address issues such as the matter before him. The Agency additionally disputes the Arbitrator's belief that the precedent cited by the Agency, regarding the permissive nature of bargaining over filling non-bargaining unit positions, does not apply to the subject matter of this grievance.

      The Agency contends that it challenged what amounts to the Arbitrator's finding of waiver in several different ways by arguing that: (1) the dispute is not cognizable as a "grievance" under the collective bargaining agreement's negotiated grievance procedure; (2) "an arbitrator lacks jurisdiction;" and (3) the collective bargaining agreement was not intended to cover such subjects. Exceptions at 16.

2.     Merits

      The Agency also argues that the Arbitrator improperly resolved another issue, thereby exceeding his authority and relying on nonfacts, when the Arbitrator found that the Agency violated the parties' agreement [ v59 p985 ] because it failed to process the grievance and imposed a remedy for that violation. Exceptions at 31. In that regard, the Agency argues that the parties did not submit this issue, or provide any facts that would support imposing such a remedy for this violation. Other than the arbitrability issue, the Agency argues that the Union presented only one merits issue at arbitration -- whether the grievant was basically qualified for the vacancy in the Ada office. The Agency contends that the Union never raised an additional contract violation argument regarding the alleged refusal to process the grievance to arbitration.

      The Agency also asserts that neither the grievance nor the issues submitted to the Arbitrator contained any independent claim for a remedy (other than to rule that the grievance was arbitrable) based on the Agency's position that the grievant's complaint was not grievable/arbitrable under the collective bargaining agreement's negotiated grievance procedure. The Agency argues that there are no facts showing any damage for which a remedy would be appropriate simply because of the Agency's purported error in contending that the grievant's complaint was not grievable/arbitrable under the negotiated grievance procedure. The Agency contends that the award contradicts itself, exceeds the Arbitrator's jurisdiction, and is based on nonfacts. The Agency also argues that the award is inconsistent with prong II of the Authority's analytical framework set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).

B.     Union's Opposition

1.     Arbitrability

      The Union contends that the only matters that are excluded from the grievance procedure are those items listed in Article 20, Section 1 of the parties' agreement. The Union asserts that the grievant never grieved her non-selection for promotion, but grieved the Agency's failure to consider her for the position, or rate her at least "qualified" for the position. According to the Union, the remedy the grievant sought did not include being selected for the vacancy. The Union also argues that the Authority has ruled that non-selection of an internal candidate to a non-bargaining unit position is grievable. The Union asserts that disagreement with the interpretation an arbitrator places on an agreement does not provide a basis for review.

2.     Merits

      The Union contends that absent a submission of an issue defining and limiting his or her authority, an arbitrator is empowered to frame the issue and rule upon it. The Union asserts that Article 20, Section 3 of the parties' agreement provides that if the parties fail to agree on a joint submission of issue(s) for arbitration, each shall make a separate submission and the arbitrator shall determine the issue(s) to be heard.

      The Union also contends that the remedy devised by the Arbitrator does not infringe on management's rights or exceed the Arbitrator's authority. According to the Union, the award only requires the Agency to properly process the grievant's application, should she apply, and process any grievance she may file regarding her application before the Agency fills the position on a permanent basis.

IV.     Analysis and Conclusions

A.     Arbitrability

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. 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). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.  [n2] 

      The Arbitrator found the grievance arbitrable under the parties' collective bargaining agreement because, consistent with Article 15(C) of the merit promotion plan, which is incorporated into the parties' agreement pursuant to Article 21, grievances concerning merit promotion procedures are arbitrable. See Award at 10-11. Even assuming that, as applied in this case, these provisions are permissive subjects of bargaining because they concern a non-unit position, Authority precedent is clear that provisions resulting from elections to bargain over permissive subjects of bargaining are enforceable in arbitration. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 393, 395 (2000) (IRS). See also Soc. Sec. Admin., Baltimore, Md., 57 FLRA 690, 693-94 (2002) (exception denied contesting arbitrability of grievance over a contract provision giving priority consideration for non-unit positions). The Authority has unambiguously rejected the argument that awards enforcing provisions resulting from bargaining over permissive subjects concern "waiver of a statutory right [ v59 p986 ] and not contract interpretation." IRS, 56 FLRA at 394. Specifically, the Authority held that an election to bargain "constitutes the exercise of the right . . . not an abandonment or relinquishment of the right." Id. at 396.

      Consistent with the foregoing precedent, the dispositive question is whether the Arbitrator's interpretation of the parties' agreement finding the grievance arbitrable draws its essence from the agreement. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). We find that the award draws its essence from the parties' agreement because grievances concerning merit promotion are grievable and the parties' merit promotion plan has been incorporated into the agreement. See United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 53 FLRA 29, 32-33 (1997) (arbitrator's determination that a grievance over the filling of supervisory/management positions was arbitrable was reviewed by the Authority under an essence standard).

      For the above stated reasons, the Agency's exception regarding the arbitrability issue is denied.

B.     Merits

      The Agency places too much reliance on the Arbitrator's finding that the grievant was not qualified for the position in question: the Arbitrator still found a violation of the Agency's regulations and the agreement from the manner in which the Agency accomplished its review of the grievant's qualifications. As a result, the Arbitrator had a legitimate basis for not dismissing the grievance and not assessing his fee and expenses to the Union. Consequently, we find that the Arbitrator did not exceed his authority when he failed to dismiss the grievance and assess the Arbitrator's fee and expenses.

      However, a different outcome is warranted regarding the contention that the Arbitrator exceeded his authority when he found a contract violation and imposed a remedy for the Agency's failure to process the grievance. The Arbitrator defined the issues before him as follows:

(1) Is the grievance arbitrable? And (2), If (1) is answered in the affirmative, did the Agency violate the terms of the Agreement and applicable rules and regulations of the Agency when it determined that the grievant was not basically qualified for the position of community development manager at the Ada, Oklahoma facility? And (3), If (2) is answered in the affirmative[,] what is the proper remedy?

Award at 4. At pages 11-12 the Arbitrator concludes his finding regarding issue (1), finding the matter arbitrable, and proceeds to address issue (2). As noted above, issue (2) does not pertain to any alleged violation of the agreement for failing to process the grievance, yet during the analysis of issue (2) the Arbitrator finds an additional violation of the agreement from the Agency's refusal to process the grievance to arbitration, i.e., because the Agency believed the issue to be non-arbitrable. Award at 13. As a separate remedy for that violation the Arbitrator ordered that the Agency expunge from its records its determination that the grievant was not qualified for the position in question.

      We find that the Arbitrator has acted upon two separate and distinct issues: (a) the Arbitrator found that the grievance was arbitrable (issue (1)), which was clearly before the Arbitrator; and (b) the Arbitrator found an independent violation of the agreement for the Agency's refusal to process the grievance when it believed that the grievance was not arbitrable, with an additional remedy imposed for that violation. We believe that issue (b) was not properly before the Arbitrator as a separate and distinct merits issue, and one cannot award a remedy for an arbitrability issue other than finding the matter arbitrable and then conducting a merits analysis of the grievance. As a result, we find that the Arbitrator exceeded his authority by making this finding of a contract violation for that conduct and imposing a remedy.

      Accordingly, for the above stated reasons, we deny the exception as it relates to the Arbitrator's failure to dismiss the grievance. However, we grant the exception as it relates to the Arbitrator's finding of a contract violation for the Agency's failure to process the grievance by challenging its arbitrability and the remedy imposed for that finding. [n3]  We remand the issue of payment of the Arbitrator's fee and expenses to the parties, absent settlement, for resubmission to the Arbitrator for a determination consistent with our decision.

V.     Decision

      We set aside the finding of an independent contract violation based on the Agency's arbitrability challenge to the grievance and the remedy provided in the award for that violation. Additionally, we remand the issue of payment of the Arbitrator's fee and expenses to the parties, absent settlement, for resubmission to the Arbitrator for a determination consistent with our decision.


File 1: Authority's Decision in 59 FLRA No. 173
File 2: Opinion of Chairman Cabaniss
File 3: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 173 - Authority's Decision

   Chairman Cabaniss' separate opinion and Member Pope's opinion dissenting in part are set forth following this decision.


Footnote # 2 for 59 FLRA No. 173 - Authority's Decision

   See also United States Dep't of Commerce, Patent and Trademark Office, 52 FLRA 358, 367 (1996); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arb