United States, Department of the Treasury, Internal Revenue Service, Houston, Texas (Agency) and National Treasury Employees Union, Chapter 222 (Union)

[ v60 p934 ]

60 FLRA No. 168

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
HOUSTON, TEXAS
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 222
(Union)

0-AR-3885

_____

DECISION

May 20, 2005

_____

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 Leonard C. Bajork 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 parties' collective bargaining agreement by failing to place the three grievants on the best-qualified (BQ) list for a vacant position. As a remedy, the Arbitrator awarded the grievants priority consideration for future promotion vacancies.

      For the following reasons, we deny the exceptions.

II.      Background and Arbitrator's Award

      The Agency issued a vacancy announcement for the position of Tax Examining Assistant, GS-0592-05/06/07. The announcement stated that three vacancies existed for the position. Twenty-one individuals applied for the position, including the three grievants.

      The parties' collective bargaining agreement provides procedures for the establishment of a BQ list for selection actions. Article 13, Section 5J.4 provides that the ranking official or panel will establish a cut-off score to determine applicants who are highly qualified (HQ) for the vacant position and that the four applicants ranked at the top of the HQ list will be designated as BQ. [n2]  Article 13, Section 5L requires that an additional applicant be added to the BQ list for each additional vacancy. [n3] 

      The applicants' scores ranged from a high of 76.20 to a low of 50.40. The Agency determined that "[the] natural break" in establishing a highly qualified cut-off score was 72.00. Award at 6. Three employees met the 72.00 cut-off and were placed on the BQ list. The Agency filled two of the three vacancies with employees from the BQ list. [n4]  One of the selectees had a test score of 76.20 and the other selectee had a test score of 72.00. A third applicant, who also had a test score of 72.00, was not selected.

      The other 18 applicants received scores that ranged from a high of 58.33 to a low of 50.40 and were not placed on the BQ list. One grievant received a score of 58.33, the fourth highest score of all applicants. The two other grievants both received a score of 58.20, tying for the fifth highest score of all applicants.

      The Union filed a grievance alleging that the Agency violated Article 13, Section 5J.4 of the agreement by establishing a cut-off score of 72.00. As a remedy, the Union proposed that the grievants be given priority consideration for future promotion vacancies.

      The parties were unable to resolve the grievance. It proceeded to arbitration, where the parties stipulated the following issues for resolution by the arbitrator: "Did the Employer violate Article 13, Section 5J.4 of the parties' CBA? And, if so, what is the appropriate remedy?" Id. at 4.

      The Arbitrator determined that the Agency violated Article 13, Section 5J.4 by establishing an improper cut-off score for the HQ list. In reaching this [ v60 p935 ] result, the Arbitrator found that "all applicants were issued a qualification test for the position." Id. at 2. The Arbitrator also analyzed the provisions of 5 C.F.R. § 300.103(b)(1). [n5]  He determined that the term "performance" in § 300.103(b)(1) means how well an applicant will perform in an announced position and "cannot mean how high an applicant scores in a qualifying test as here." Id. at 6. The Arbitrator found that the Agency's reliance on the "natural break" between the three highest scores and the remaining eighteen scores "as the proper methodology for determining the composition of HQ[,]" list was misplaced. Id. at 7. He found that high scores on a "qualifying test" do "not reveal the test's contents as valid predictors of an applicant's on the job success." Id. The Arbitrator further found no evidence that the "test" was professionally developed, as required by § 300.103(b)(1). Id.

      Furthermore, the Arbitrator found that the "administrative regulations and attendant documents . . . establish the principle that ultimate selection for promotion is best served with as lengthy a BQ list as possible under the circumstances of each action." Id. at 7-8. The Arbitrator added that, in the absence of evidence that "the tests taken by the 21 applicants" were valid predictors of the applicants success performing on the job, there is a "probability" "that applicants with scores under 72.00 may have been equally or even more successful in performing the position's job functions than those with scores of 72.00 and above." Id. at 8. Therefore, the Arbitrator concluded that the Agency's selection decision was "arbitrary." Id.

      As a remedy for the Agency's violation of Article 13, Section 5J.4, the Arbitrator ordered the Agency to take action under Article 13, Sections 10A.1 and 10B. of the parties' agreement, which provide priority consideration for future promotion vacancies based on an employee's erroneous omission from the BQ list. [n6] 

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is contrary to law and that it is based on a nonfact and fails to draw its essence from the parties' collective bargaining agreement. Specifically, the Agency contends that the award is contrary to law because it is inconsistent with 5 C.F.R. § 335.103(b)(4). [n7]  The Agency argues that the Arbitrator's interpretation of Article 13, Section 5J.4 of the parties' agreement would not allow the Agency to have a screening process to determine which applicants would be deemed highly qualified or placed on the best qualified list, as required by 5 C.F.R. § 335.103(b)(4). See id. at 7. The Agency asserts that the Arbitrator interpreted Article 13, Section 5J.4 to require the Agency "to identify the four highest scoring applicants in any promotion package as the best qualified applicants" without any assessment beyond a determination that each is minimally qualified for the position. Exceptions at 4, 7.

      The Agency also contends that the award is based on the Arbitrator's "mistaken belief" that the Agency administered a "qualifications test" to each of the applicants for the position at issue in this case and that this nonfact was central to his finding that the Agency violated the parties' agreement. Id. at 4, 5. The Agency asserts that neither party submitted any evidence of the application of a qualifications test and that the Arbitrator misunderstood the process by which the applicants were evaluated.

      Further, the Agency contends that the award fails to draw its essence from the parties' agreement because it manifests a disregard of Article 13, Section 5J.4. The Agency argues that Article 13, Section 5J.4 requires the Agency to establish a cut-off score for the HQ list. Id. at 6. The Agency asserts that the Arbitrator's finding that the Agency's cut-off score for the HQ list was improperly determined and the Arbitrator's "musings" regarding "a lengthy" BQ list and the ability of applicants with cut-off scores below 72.00 to perform well in the announced position demonstrate that he did not rely on Article 13, Section 5J.4 to conclude that the Agency violated the parties' agreement. Id. at 5, 6.

B.      Union's Opposition

      The Union disputes the Agency's contention that the award is contrary to law. The Union argues that the [ v60 p936 ] award is not inconsistent with 5 C.F.R. § 335.103(b)(4) because that regulation does not reference the concept of "HQ." Opposition at 4. The Union further asserts that, under the Arbitrator's interpretation of the agreement, management can choose not to select an applicant from the BQ list. See id. at 4-5.

      The Union also challenges the Agency's contention that the award is based on a nonfact. The Union argues that the Arbitrator's use of the term "qualification test" was not a central fact underlying the award. Id. at 2.

      Finally, the Union disputes the Agency's contention that the award fails to draw its essence from the parties' agreement. The Union asserts that the Agency has not demonstrated that the award is deficient under any of the elements of the essence test.

IV.      Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      When a party's exceptions dispute an award's consistency with law or regulation, we review the questions of law and regulation raised by the award and the exceptions de novo. See, e.g., NFFE, Local 1442, 59 FLRA 849, 851 (2004). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under 5 C.F.R. § 335.103(b)(4), selection procedures must provide for management's right to select or not select from a group of "best qualified" candidates as well as from other appropriate sources.

      The parties' agreement provides that the four top qualified candidates will be designated "best qualified" and referred to the selecting official. See Award at 7 (citing Article 13, Section 5J.4). We find no merit to the Agency's contention that the award is contrary to 5 C.F.R. § 335.103(b)(4) because the Arbitrator's interpretation of Article 13, Section 5J.4 would not allow the Agency to determine that fewer than four of the candidates on a list are "highly qualified" and, thereby to reduce the number of applicants who are determined to be "best qualified." As set forth above, § 335.103(b)(4) pertains to management's right to select or not select from a group of best qualified candidates. There is nothing in the award that requires the Agency to select any employee. As such, the award is not inconsistent with 5 C.F.R. § 335.103(b)(4).

      Moreover, it is well established that unions and agencies may enter into contract provisions concerning selection procedures, provided the provisions are within the discretion of the agency under applicable law and regulations. See Dep't of the Treasury v. FLRA, 837 F.2d 1163, 1169-71 (D.C. Cir. 1988) (first consideration and 10-day waiting provisions found within agency discretion under Office of Personnel Management selection requirements); Soc. Sec. Admin., Chicago N. Dist. Office, 56 FLRA 274, 278 (2000) (Chicago N. Dist. Office) (first consideration and 10-day waiting provisions within agency discretion under 5 C.F.R. § 335.103(b)(4)). In addition, the United States Court of Appeals for the District of Columbia has specifically held that the precursor to 5 C.F.R. § 335.103(b)(4) did not expand on the right to select under the Statute. [n8]  Office of Personnel Management v. FLRA, 864 F.2d 165, 167-68 (D.C. Cir. 1988). Nothing in the wording of 5 C.F.R. § 335.103(b)(4), or the Agency's arguments, establishes that the Agency lacked discretion to agree to Article 13, Section 5J.4, which the Arbitrator interpreted as providing that the top four qualified candidates would be deemed "best qualified" and referred for consideration to the selecting official.

      As the contractual provisions are within the Agency's discretion under 5 C.F.R. § 335.103(b)(4), and as nothing in these provisions, or the award, requires the Agency to select or not select any candidate, there is no basis for finding the award contrary to law.

      Accordingly, the exception is denied.

B.      The Award Is Not 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. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry). 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)).

      There is no evidence of any "test" having been administered to the applicants. Rather, the Agency asserts, and the Union does not dispute, that the cut-off score was created after the application materials submitted by the applicants were reviewed. See Award at 6. In [ v60 p937 ] this regard, the record reveals that a ranking panel of the Agency based the ranking score on an evaluation of each applicant's qualifications as set forth in that individual's application package. See Exceptions, Attachment 3.

      Nonetheless, even assuming that the Arbitrator misapprehended that the cut-off score was based on a "test" administered to job applicants, as the Agency claims, the Agency has not demonstrated that the Arbitrator would have reached a different result in this case. See, e.g., Lowry, 48 FLRA at 593-94.

      Accordingly, we deny this exception.

C.      The Award Does Not Fail to Draw its Essence from 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, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      We find no merit to the Agency's contention that the Arbitrator disregarded Article 13, Section 5J.4 by determinating that the Agency established an improper cut-off score for the HQ list. In reaching his determination, the Arbitrator applied the provisions of 5 C.F.R. § 300.103(b)(1) to interpret Article 13, Section 5J.4. The Arbitrator found that the method used by the Agency to establish the HQ did not comport with that OPM regulation. See Award at 8. Therefore, the Arbitrator concluded that the Agency's selection decision was "arbitrary." Id.

      In view of testimony before the Arbitrator that, during negotiations on Article 13, the Union intended the cut-off score to be "grounded in existing regulations governing selection for promotion" (Award at 5) and the fact that Article 13 is silent as to what happens when a cut-off score is found to be arbitrary, the Agency has not demonstrated that the Arbitrator's interpretation of the agreement is irrational, unfounded, or implausible, or that it evidences a manifest disregard for the agreement. Therefore, we find that the Agency has not shown that the award fails to draw its essence from the parties' agreement.

      Accordingly, we deny this exception.

V.      Decision

      The Agency's exceptions are denied.


Appendix

1.     5 C.F.R. § 300.103 states in pertinent part:
(a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and
(3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.
(b) Relevance. (1) There shall be a rational relationship between performance in the position to be filled . . . and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. . . .

      2.     5 C.F.R. § 335.103(b) provides, in pertinent part:

(3) Requirement 3. To be eligible for promotion or placement, candidates must meet the minimum qualification standards prescribed by the Office of Personnel Management (OPM). Methods of evaluation for promotion and placement, and selection for training which leads to promotion, must be consistent with instructions in part 300, subpart A, of this chapter. Due weight shall be given to performance appraisals and incentive awards.
(4) Requirement 4. Selection procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources, such as reemployment priority lists, reinstatement, transfer, handicapped, or Veteran Readjustment Act eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals. [ v60 p938 ]

Dissenting opinion of Member Armendariz:

      In practical terms, by finding that the Agency's cut-off score was invalid and resulted in the erroneous omission of the grieva