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

[ v60 p363 ]

60 FLRA No. 76

UNITED STATES
DEPARTMENT OF LABOR
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

0-AR-3838

_____

DECISION

October 29, 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 Jonathan E. Kaufmann 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 found grievable and sustained a grievance alleging that the Agency improperly excluded the grievant from consideration for a GS-15 position. The Arbitrator ordered that the grievant be given priority consideration for the next position for which he applies and is qualified.

      For the reasons discussed below, we deny the Agency's exceptions.

II.     Background & Arbitrator's Award

      The grievant, a bargaining unit GS-14 Program Analyst, applied for a non-bargaining unit GS-15 position for which he met the minimum qualifications. The Agency established a Merit Staffing Evaluation Panel comprised of two GS-15 employees to rate the applicants. The panel did not select the grievant as one of the best-qualified candidates. As a result, his name did not appear on the Certificate of Eligibles and he was not considered for the position.

      The Arbitrator stated that the following issues were before him for resolution:

1.     Was the decision to exclude the Grievant from the Certificate of Eligibles for the GS-15 Financial Manager position advertised under MSHA-00-88 a grievable matter?
2.     Was the merit staffing evaluation panel that evaluated the candidates for the GS-15 Financial Manager position properly qualified?
3.     Has the Grievant shown that he was improperly excluded from the Certificate of Eligibles and, if so, what remedy would apply?

Award at 1.

      As to the first issue, the Arbitrator found that the matter was grievable for two reasons. As an initial matter, he found that the Agency had failed to timely comply with Article 44, § 9 of the parties' agreement, which states that in order to make a claim at arbitration that a matter is not subject to the grievance process, the Agency shall give the Union advance notice of such a claim. [n2]  Because the Agency did not timely give the Union notice of its claim that the matter was not grievable, the Arbitrator found that the Agency was barred from raising that claim at arbitration.

      Moreover, the Arbitrator further found that even if the Agency had timely asserted its claim, the matter was nonetheless substantively grievable under Article 43, § 3(b)(9) of the parties' agreement. That provision excludes grievances over the "filling of a position outside the bargaining unit except for a position which is threshold to the unit." Id. at 2. The Arbitrator found that, "taken as a whole, the record supports a finding that the position at issue was threshold to the unit and could be the subject of a grievance." Id. at 8.

      As to the second issue, the Arbitrator found that the Agency failed to follow the requirements of Article 16, § 6(c) of the parties' agreement when it constituted the selection panel. [n3] 

      As to the third issue, the Arbitrator found that, although the Union had raised some question regarding the accuracy of the grievant's evaluation, he could not find that the panelists' evaluation of the grievant was [ v60 p364 ] wrong and that the grievant should have received a higher evaluation. The Arbitrator stated that if he were to do this, he would be substituting his assessment of the grievant's qualifications for that of the selection panel, contrary to Article 43, § 3(b)(3) of the parties' agreement, which "explicitly preclude[s]" grievances challenging the judgment of a selection panel. [n4]  Id. at 10-11.

      Based on his findings, the Arbitrator ordered that the grievant receive priority consideration for the next position for which he applies and is qualified.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award fails to draw its essence from the parties' agreement in two respects.

      First, the Agency asserts that the award of priority consideration is based "entirely upon a finding that the Agency violated" Article 16, § 6(c), but contends that Article 16 is "clearly inapplicable" to this case because it "only applies to bargaining unit positions" and the position in this case is outside the bargaining unit. Exceptions at 5 (original emphasis). In support, the Agency cites a portion of Article 16, § 1, "Preamble," which states that the parties "also agree to fill positions in the bargaining unit on the basis of merit" in accordance with merit staffing procedures, and also contends that the grievance itself did not mention Article 16. Exceptions, Attachment 7 at 64. Moreover, according to the Agency, the Arbitrator's "misplaced reliance" on Article 16 "improperly interferes with the Agency's bargaining rights" because promotion procedures for non-bargaining unit supervisory positions are negotiable only at the election of the Agency, and the Arbitrator's reliance on Article 16 "forces the Agency to apply that provision to non-bargaining unit positions." Id. at 6, 5.

      Second, the Agency asserts that the Arbitrator's remedy of priority consideration fails to draw its essence from the agreement because it "contradicts his finding and admission" that, under Article 43, § 3(b)(3) of the parties' agreement, "the judgment of the merit staffing panel is not reviewable by [the Arbitrator]." Id. at 6 n.2.

B.     Union's Opposition

      The Union asserts that the Arbitrator correctly found that the Agency failed to timely raise the issue of grievability as required by Article 44, § 9 of the parties' agreement and, as such, the Agency is precluded from excepting to the Arbitrator's findings with regard to Article 16. See Opposition at 4. According to the Union, the "only manner in which the [A]rbitrator exceeded his jurisdiction was in even considering the [Agency's] threshold argument once it was clear that the [Agency] was untimely in their notification of the [U]nion of their affirmative defense with regard[] to grievability/arbitrability." Id.

IV.     Analysis and Conclusions

A.     The Agency's arguments with regard to Article 16 are barred by § 2429.5 of the Authority's Regulations.

      Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented before an arbitrator. See 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) (the Authority, sua sponte, found that an exception was barred by § 2429.5). For the following reasons, we find that the Agency's arguments relating to Article 16 in its exceptions are barred by § 2429.5 of the Authority's Regulations.

      In its exceptions, the Agency makes two arguments that rely on Article 16. First, citing Article 16, § 1, "Preamble," the Agency contends that Article 16 is "inapplicable" in this case because it applies only to bargaining unit positions, not to non-bargaining unit positions. Exceptions at 5. Second, the Agency argues that even if Article 16 applies to non-bargaining unit positions, it is a permissive subject of bargaining over which the Agency did not elect to bargain.

      However, there is no indication in the record that the Agency presented either of these arguments to the Arbitrator. Rather, the record indicates that the only argument relating to Article 16 that the Agency made to the Arbitrator was an attempt to rebut the Union's claim that the selection panel was improperly constituted in violation of Article 16. In this regard, the Agency asserted before the Arbitrator that "the members on the merit staffing evaluation panel . . . were properly qualified." [ v60 p365 ] Award at 7. Although the Agency did argue before the Arbitrator that the grievance was not arbitrable under Article 43, § 3(b)(3) and (9) because the position for which the grievant applied was outside the bargaining unit, there is no indication in the record that the Agency presented a similar argument regarding Article 16. The Agency's arguments to the Arbitrator and the Arbitrator's findings regarding the substantive arbitrability of the grievance were limited to Article 43. In sum, the only argument that the Agency made before the Arbitrator as to Article 16 concerned whether the selection panel was properly constituted in accordance with the terms of Article 16, not whether Article 16 applied at all.

      As the Agency could have argued to the Arbitrator that Article 16 did not apply to the filling of non-bargaining unit positions and was bargainable only at the election of the Agency, but did not do so, the Agency is not permitted to raise this issue for the first time here. Accordingly, under § 2429.5 of the Authority's Regulations, we decline to consider these arguments.

B.     The award does not fail to draw its essence from Article 43, § 3(b)(3) of the parties' agreement.

      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 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).

      The Agency asserts that the Arbitrator's remedy of priority consideration fails to draw its essence from the agreement because it contradicts his finding that, under Article 43, § 3(b)(3) of the parties' agreement, the judgment of the merit staffing panel is not reviewable by the Arbitrator. This assertion is without merit. The Arbitrator's finding of a violation of Article 16 was not based on the judgment of the merit staffing panel. Rather, the Arbitrator found that the Agency violated Article 16 with regard to the composition of the panel and the training and experience of its members, and awarded a remedy for that violation. Accordingly, the Agency has not demonstrated that the Arbitrator's remedy fails to draw its essence from Article 43, § 3(b)(3) of the parties' agreement.

V.     Decision

      We deny the Agency's exceptions.


APPENDIX

Article 16, "Merit Staffing," of the parties' agreement provides in pertinent part:

Section 1. Preamble

The purposes and intent of this Article are to ensure that employees are given full and fair consideration for advancement and to ensure selection from among the best-qualified candidates.
The Department and Local 12 also agree to fill positions in the bargaining unit on the basis of merit in accordance with systematic and equitable procedures adopted for this purpose.

. . . .

Section 2. Introduction

. . . .

b.     Exceptions to Merit Staffing. Competitive merit staffing procedures apply to all personnel actions, including details to fill positions in the competitive service in the bargaining unit, except as otherwise indicated below.

. . . .

Section 6. Grouping of Candidates

. . . .

c.     Evaluation by Merit Staffing Panels. There shall be lists maintained at the Agency level of skilled and impartial persons from whose ranks rating panels shall be constituted. Local 12 will be consulted in the naming of individuals to be placed on the list. Panel members will receive training following their appointment and will be given copies of this Article. Persons who serve on panels must be either expert in the occupational field of the vacancy and at a grade level equal to or above the vacancy, or skilled in the evaluation of experience, education, and training at the level of the vacancy.

. . . .

Exception, Attachment 7 at 64-65, 76.

Article 43, "Grievance Procedure," of the parties' agreement provides in pertinent part:

Section 3. Exclusions [ v60 p366 ]
. . . .
b.     Further, this Article does not apply to:
(3)     The judgment of a merit staffing panel or a qualifications rating examiner
. . . . 
(9)     filling of a position outside the bargaining unit except for a position which is threshold to the unit.

Award at 2.

Article 44, § 9, "Grievability and Arbitrability," of the parties' agreement provides:

The arbitrator shall have the authority to make all determinations respecting grievability/ arbitrability. If the Department considers a grievance non-grievable or non-arbitrable, it should communicate such determination to the Union at the earliest possible time. In order to raise the issue at arbitration, the Department shall advise the Union no later than twenty (20) workdays after invocation and at least ten (10) workdays before the hearing.

Award at 2.


Concurring Opinion of Chairman Cabaniss:

      I write separately to discuss an issue that has a bearing on cases such as this, although the issue was not timely raised by the parties. In the present case, the Agency asserts (albeit in an untimely manner) that the Arbitrator improperly found that the parties negotiated provisions into their collective bargaining agreement that established procedures for the filling of positions outside of the bargaining unit, and thus the Agency's actions in filling those positions outside of the bargaining unit were subject to being grieved under the parties' negotiated grievance procedure. The Agency argues that bargaining over the filling of supervisory positions is at its election to do so or not, and that the Agency did not elect to do so.

      Proposals that directly implicate conditions of employment of supervisors are bargainable only at the election of an agency because such proposals constitute a permissive subject of bargaining. Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 380 (2001). Permissive subjects are "proposals that a party negotiate[s] to limit a right granted to it by the Statute." United States Food & Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1273-74 (1998). "As the name implies, parties may, but are not required to, bargain over permissive subjects." Id. See generally AFGE Local 32, 51 FLRA 491, 497 n.11 (1995) (noting that the Statute identifies three categories of proposals: mandatory, permissive, and prohibited). Thus, while an agency may not be required to negotiate over proposals that directly implicate conditions of employment for supervisors, agencies are not prohibited from doing so.

      While agencies thus have a statutory right to not bargain over permissive matters, a party may still waive a statutory right, an issue with which the Authority has some experience and precedent. Social Security Administration, 31 FLRA 1277, 1279 (1988). However, Authority precedent requires that the waiver of a statutory right must be clear and unmistakable. United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000).

      In determining whether such a clear and unmistakable waiver has taken place through negotiation, and consistent with my views expressed in NAGE, Local R3-77, 59 FLRA 937, 945-46 (2004), I believe that we are bound by the Supreme Court's decision in Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70 (1998) (Wright). I believe the Court's decision in Wright makes it clear that a party's waiver of a statutory right through collective bargaining must be clear and unmistakable, that such a waiver is a statutory (not contractual) issue, and that the matter is not subject to any presumption of arbitrability/being a matter of contract interpretation regarding whether the matter is subject to arbitration under the parties' agreement, or the principal rationale justifying that presumption, which is that arbitrators are in a better position than courts to interpret the terms of a collective bargaining agreement. Consequently, when addressing the question of waiver of a statutory right (such as whether a party has waived its statutory right to not bargain over a permissive matter but instead has entered into an agreement addressing that permissive matter), the Authority's evaluation of an arbitrator's ruling should be one of conducting a de novo review of the legal issue pertaining to whether a party has waived a statutory right, rather than applying the less stringent essence standard to the arbitrator's evaluation of the meaning of the agreement.



Footnote # 1 for 60 FLRA No. 76 - Authority's Decision

   The concurring opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 76 - Authority's Decision

   The relevant provisions of the parties' agreement are set forth in the attached Appendix.


Footnote # 3 for 60 FLRA No. 76 - Authority's Decision

   The Arbitrator referred to this provision as both Article 16, § 6(c) and as Article 16(c). See Award at 2,  9-11. Despite this discrepancy, there is no dispute that the relevant language requires that the Agency "maintain a list of skilled and impartial persons from whose ranks rating panels shall be constituted" and that "panel member[s] `will' receive training." Award at 9, 10. We refer to this provision as Article 16, § 6(c).