American Federation of Government Employees, Local 1658 (Union) and United States, Department of the Army, Army Tank-Automotive and Armaments Command, Warren, Michigan (Agency)

[ v61 p80 ]

61 FLRA No. 15

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1658
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
ARMY TANK-AUTOMOTIVE
AND ARMAMENTS COMMAND
WARREN, MICHIGAN
(Agency)

0-AR-3926

_____

DECISION

July 8, 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 Janet C. Goulet filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. As discussed below, the Agency filed an untimely opposition to the Union's exceptions.

      The Arbitrator found that the grievance was not substantively arbitrable, and she dismissed the grievance.

      For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that certain promotions violated the parties' collective bargaining agreement and an Agency regulation because they were "unfair." Award at 3. The Agency denied the grievance on the ground that it was excluded from the grievance process under Article 33, § C(11) of the parties' agreement, which excludes grievances over "[n]on-selection for promotion from a group of properly ranked and certified candidates." The grievance was unresolved and submitted to arbitration, where the issue before the Arbitrator was whether the grievance is arbitrable. [n2] 

      The Arbitrator concluded that the grievance was excluded from the scope of the parties' grievance procedure pursuant to Article 33, § C(11) of the agreement. In reaching this conclusion, the Arbitrator found that non-selection for promotion is "clearly non grievable" under Article 33, § C(11). Id. at 5. According to the Arbitrator, the grievance alleged that the disputed promotions were "unfair" and, in particular, the Union argued that "the scoring of the candidates in the selection process was unfair[.]" Id. at 4. The Arbitrator found that in order to resolve the grievance, she would have to examine the circumstances of those selected and not selected for promotion. Id. at 5. This would result, according to the Arbitrator, in examining the personnel action that led to non-selection "from a group of properly ranked and certified candidates" within the context of the grievance procedure. Id. The Arbitrator determined that claiming that a promotion is "unfair" is "nearly the same" as claiming that non-selection for promotion is "unfair." Id.

      Based on the foregoing, the Arbitrator found that the grievance was not substantively arbitrable because it was barred by Article 33, § C(11) of the parties' agreement.

III.      Union's Exceptions

      The Union contends that the award fails to draw its essence from the parties' agreement. In this regard, the Union asserts that the Arbitrator interpreted the phrase "non-selection for promotion" as excluding all grievances over promotion actions. According to the Union, this interpretation is improper because Article 36, § O of the parties' agreement establishes the right to file grievances over any and all aspects of a promotion action except "non-selection." [n3]  In addition, the Union argues that Article 4 and other sections of Article 36 of the parties' agreement require the Agency to follow merit promotion principles to ensure fairness throughout the selection process and that these provisions would not be necessary if the parties intended to exclude all promotion action grievances. In addition, the Union asserts [ v61 p81 ] that the low interview score received by one candidate in comparison to other candidates' interview scores demonstrates that the interview process was biased and "unfair." Exceptions at 4. The Union also claims that Agency regulation TACOM-R 600-5, Chapter 15, Paragraph 15-14 recognizes employees' rights to file grievances regarding promotions under the negotiated grievance procedure.

      The Union further contends that the award is contrary to 5 U.S.C. § 2301(b)(1) and (2); § 2302(b)(6); 5 C.F.R. § 335.103 and Agency regulations AR 690-335-1 and TACOM-R 600-5, Chapters 1 and 15, Paragraph 15-1. In this regard, the Union claims that the merit promotion principles set forth in these laws and Agency regulations were violated during the disputed promotion process because the interview, referral, and ranking processes were unfair.

      Finally, the Union contends that the Authority has consistently found that arbitrators have the authority to arbitrate grievances over promotion actions. As support for this contention, the Union cites several Authority decisions where, it claims, arbitrators ruled on grievances involving promotion actions. [n4] 

IV.     Preliminary Issue

      The Authority issued an Order to Show Cause to the Agency to show why its apparently untimely opposition should be considered by the Authority. The Agency responded by stating that its time limit to file an opposition was "tolled" by the Authority's issuance of an Order directing the Union to file the proper number of copies of its exceptions. The Agency relies on an Order to Show Cause it received in another case, AR-3944, which stated that the time limit for filing an opposition would not begin until the Authority ruled on the union's response to the Order.

      The Agency's reliance on the Order in AR-3944 is misplaced for two reasons. First, the Order in AR-3944 expressly stated that no opposition would be due until the Authority ruled on whether the exceptions were untimely and the Order in this case did not. Second, in AR-3944, the deficiency in the exceptions was potentially jurisdictional: whether the exceptions were timely filed. If they were not -- a matter that could not be resolved until the excepting party responded to the Order -- then the exceptions would be dismissed without regard to whether an opposition was timely filed. Here, by contrast, the deficiency concerned only the number of copies filed. Thus, because the deficiency in the exceptions was not potentially jurisdictional, the Order in the instant case did not stay the filing of the Agency's opposition.

      As the Agency has failed to show good cause as to why its opposition should be considered timely, we will not consider it.

V.     Analysis and Conclusions

A.      The award does not fail to draw its essence from the parties' agreement.

      The Arbitrator found that the grievance was not substantively arbitrable because it concerned a matter that was excluded from the scope of the parties' grievance procedure pursuant to Article 33, § C(11) of the parties' agreement. The Union asserts that the Arbitrator's substantive arbitrability finding fails to draw its essence from the parties' agreement. [n5]  An arbitrator's contractual determination regarding substantive arbitrability is subject to the deferential essence standard. See Nat'l Air Traffic Controllers Ass'n, 56 FLRA 733, 735 n.3 (2000) (citing AFGE, Local 1857, 53 FLRA 1353 (1998)); EEOC, 53 FLRA 465, 481 n.20 (1997).

      For an arbitrator's award to be found deficient as failing to draw its essence from a 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 purpose 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 Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576. [ v61 p82 ]

      Article 33, § C(11) of the parties' agreement excludes from coverage under the negotiated grievance procedure "[n]on-selection for promotion from a group of properly ranked and certified candidates." Here, the grievance alleged that the disputed promotions were "unfair" and in particular, according to the Arbitrator, the Union argued that "the scoring of the candidates in the selection process was unfair[.]" Exceptions, Enclosure 2 at 1; Award at 4. As further explained and argued by the Union in its exceptions, the low interview score received by one of the candidates in relation to the other candidates' interview scores demonstrates that the interview process was "unfair." Exceptions at 4.

      The Arbitrator found that in order to determine if the promotions were "unfair," she would have to investigate the circumstances involving those selected and not selected for promotion. This would result, according to the Arbitrator, in an examination of the personnel action that led to the non-selection "from a group of properly ranked and certified candidates" within the context of the grievance procedure. Award at 5. The Arbitrator's finding in this regard is supported by the Union's contention concerning the interview scores, which would have been received subsequent to the ranking and certification of candidates. Further, the Arbitrator determined that claiming that a promotion is "unfair" is "nearly the same" as claiming that the non-selection for promotion is "unfair." Award at 5.

      Based on the foregoing, the Arbitrator concluded that the grievance was excluded from the scope of the parties' grievance procedure pursuant to Article 33, § C(11). The Union has not demonstrated that the Arbitrator's conclusion that the particular grievance involved in this case is not substantively arbitrable manifests a disregard of the parties' agreement or is implausible, irrational, or unfounded. Moreover, contrary to the Union's assertion, nothing in the award indicates that the Arbitrator interpreted the phrase "non-selection for promotion" as excluding all grievances over promotion actions. Consequently, we find that the Union has not shown that the award fails to draw its essence from the parties' agreement, and we deny the exception.

B.     The award is not contrary to law.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation. In circumstances where a party's exceptions involve an award's consistency with law, rule, or regulation, the Authority reviews questions of law raised by the award and the agency's exceptions 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 applying 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 Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      We construe the Union's assertion regarding Agency regulation TACOM-R 600-5, SPMM, Chapter 15, Paragraph 15-14 as a claim that the award is contrary to the Agency regulation. An award is deficient if it is inconsistent with a "governing" agency regulation. See United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 192 (1990). However, collective bargaining agreements, rather than agency-wide regulations, govern the disposition of matters to which they both apply. See, e.g., United States Dep't of the Navy, Naval Training Ctr., Orlando, Fla., 53 FLRA 103, 108-109 (1997). The Arbitrator based her award on Article 33, §C(11) of the parties' agreement, a provision that she found applicable to the instant dispute. Thus, even assuming that TACOM-R 600-5 is relevant, the collective bargaining agreement governs the disposition of the matter. Id. As a result, any alleged inconsistency between the Agency regulation and the award does not provide a basis for vacating the award because the award is based on the parties' agreement, which governs the matter. Thus, we find that the Union's exception does not provide a basis for finding the award contrary to this Agency regulation. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 166 (1999).

      The Union also argues that the award is contrary to various laws and Agency regulations regarding merit promotion principles. However, the Union has not explained how the award is inconsistent with the cited laws and Agency regulations. In addition, nothing in these laws and regulations precludes parties from agreeing to exclude grievances, such as the one here, from their negotiated grievance procedure. Moreover, the Authority has held that the merit system principles set forth in 5 U.S.C. § 2301 are hortatory and not self-executing, and thus do not, by themselves, form a basis for finding that an arbitral award is contrary to law. See, e.g., NFFE, Local 1904, 56 FLRA 196, 197 (2000). As such, we find that the Union has not shown that the Arbitrator's conclusion that the grievance is not substantively arbitrable under the parties' agreement is contrary to these laws and Agency regulations. [ v61 p83 ]

      With regard to Authority precedent, the Union's reliance on the cited decisions is misplaced. In this regard, none of those decisions involved a dispute, as here, over whether the promotion issues raised in the grievances were substantively arbitrable under the parties' negotiated grievance procedure. Thus, we find that these decisions provide no basis for finding the award deficient.

      Based on the foregoing, we find that the Union has not established that the award is contrary to law or regulation, and we deny these exceptions.

VI.     Decision

      The Union's exceptions are denied.


Appendix

Article 4, Section A of the parties' agreement provides, in pertinent part, that:

It is agreed that in the administration of all matters covered by this agreement, both parties and [bargaining unit] members are governed by existing and future laws, the regulations of appropriate authorities . . . .

Exceptions at 3, Enclosure 3 at 1.

Article 36 of the parties' agreement provides, in pertinent part, that:

A.      The employer and union agree that the provisions of merit promotion principles herein are to be applied
     (1) equitably;
     (2) to [bargaining unit] positions . . . .
     . . . .
C.      Qualifications for basic eligibility will conform to the OPM standards . . . .
D.      Appropriate job merit evaluation criteria must be used to differentiate among a large group of eligible candidates so as to identify the best qualified ones . . .
. . . .
O.      If a grievance regarding a promotion action is being processed through the negotiated grievance procedure, the selectee may be temporarily promoted pending resolution of such grievance. . . .

Exceptions at 2, Enclosure 3 at 5-7, 9.

5 U.S.C. § 2301 provides, in pertinent part, as follows:

(b) Federal personnel management should be implemented consistent with [, among others,] the merit system principles [that]:
(1) Recruitment should be from qualified individuals from appropriate sources . . . .
(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management . . . .

Exceptions at 4, Enclosure 6 at 1.

5 U.S.C. § 2302(b) provides, in pertinent part:

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-
. . . .
(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee . . . .

Exceptions at 4, Enclosure 7 at 2.

5 C.F.R. § 335.103 provides, in pertinent part, that "an agency may make promotions . . . only to positions for which the agency has adopted and is administering a program designed to insure a systematic means of selection for promotion according to merit." Exceptions at 5, Enclosure 8 at 1.

AR 690-335-1 provides, in pertinent part, that merit promotion plans should "fulfill the requirements of [5 C.F.R.] 335" and "set procedures to provide equal opportunity for all candidates[.]" Exceptions at 5, Enclosure 9 at 1, 3.

TACOM-R 600-5, SPMM, Chapter 1 provides, in pertinent part, that this chapter provides "basic policies which govern merit systems principles [and] prohibited personnel practices[.]" Exceptions at 5, Enclosure 10 at 1.

TACOM-R 600-5, SPMM, Chapter 15, Paragraph 15-1 provides, in pertinent part, that the purpose of the Merit Promotion and Internal Placement Program is to "ensure[] a systematic means of employee selection 84 according to merit principles." Exceptions at 5, Enclosure 4 at 1.

TACOM-R 600-5, SPMM, Chapter 15, Paragraph 15-14 provides, in pertinent part, that, with regard to the Agency's Merit Promotion and Internal Placement Program:

a.      [i]f employees wish to file a grievance under the . . . prevailing negotiated grievance procedure . . . they must do so in a timely manner.
b.      Non-grievable matters. Nonselection from among a group of properly ranked and certified candidates is not an appropriate basis for a formal complaint or grievance.

Exceptions, Enclosure 4 at 11-12.


Concurring opinion of Chairman Cabaniss:

      I write separately to discuss the Authority's precedent concerning the review of substantive arbitrability claims. In the present circumstances I agree that the substantive arbitrability question is resolved based upon an essence analysis of the Arbitrator's contractual interpretation of the parties' collective bargaining agreement. Where, however, that interpretation of the agreement involves the waiver of a statutory right by one of the parties, I would find that such a waiver must be shown by clear and unmistakable evidence. See, e.g., United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head, Div., Indian Head, Md., 56 FLRA 848, 850 (2000).

      And, consistent with my views expressed in NAGE, Local R3-77, 59 FLRA 937, 945-46 (2004), I would find that the Supreme Court's decision in Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70 (1998), requires that a party's waiver of a statutory right through collective bargaining must be clear and unmistakable, that such a waiver presents a statutory (as opposed to contractual) issue, and that the matter is not subject to any presumption of arbitrability/being a matter of contract interpretation. Consequently, in such circumstances I would find that the Authority's analysis of such a ruling involves a de novo review of a legal question rather than a deferential review under the Authority's essence standard.



Footnote # 1 for 61 FLRA No. 15 - Authority's Decision

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


Footnote # 2 for 61 FLRA No. 15 - Authority's Decision

   Although the Arbitrator did not specify the issue, she stated that the parties agreed that she was required to "make a decision as to the arbitrability of the grievance before hearing the substance of the case." Award at 2.


Footnote # 3 for 61 FLRA No. 15 - Authority's Decision

   Relevant provisions of the parties' agreement, laws, and Agency regulations are set forth in the appendix.


Footnote # 4 for 61 FLRA No. 15 - Authority's Decision

   The Union cites United States Dep't of the Navy, Naval Undersea Warfare Ctr., Div., Keyport, Wash., 55 FLRA 884 (1999); AFGE, Local 31, 49 FLRA 957 (1994); United States Dep't of the Army, Armament Research, Dev. & Eng'g Ctr., Picatinny, Arsenal, N.J., 48 FLRA 873 (1993); United States Dep't of Health & Human Servs., Family Support Admin., Wash., D.C., 42 FLRA 347 (1991); NTEU, 31 FLRA 181, 189-90 (1988), enforced as to other matters sub nom. Dep't of the Treasury, United States Customs Serv. v. FLRA, 873 F.2d 1473 (D.C. Cir. 1989).