United States Department of Energy, Office of Scientific and Technical Information, Oak Ridge, Tennessee (Agency) and Office and Professional Employees International Union, Local 2001 (Union)
[ v63 p219 ]
63 FLRA No. 84
DEPARTMENT OF ENERGY
OFFICE OF SCIENTIFIC AND
OAK RIDGE, TENNESSEE
OFFICE AND PROFESSIONAL EMPLOYEES
April 17, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Trevor L. Bain 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 that the Agency violated the parties' agreement when it misinformed the grievant about a position vacancy. The Arbitrator directed the Agency to set aside the selections made under the vacancy announcement, re-advertise the positions, and provide the grievant priority consideration for the positions with backpay and interest, if the grievant is selected for one of the vacancies.
For the following reasons, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency advertised a vacancy announcement for positions at the GS-13/14 level. Award at 19. The grievant, a GS-13 employee seeking promotion to GS-14, contacted the personnel office about the vacancy. The personnelist handling the vacancy responded that the vacancies would be filled at the GS-13 level and that, after a year or more, the selectees might be promoted to GS-14. Id. at 20. Based on this information, the grievant decided not to apply for the vacancy. Id. The Agency subsequently filled the vacancies at the GS-14 level. Id.
The Union filed a grievance alleging that the incorrect information the grievant received from the personnelist resulted in the grievant not applying for a vacancy at the GS-14 grade. Id. at 2. Following unsuccessful attempts at resolving this grievance, it was referred to arbitration. The Arbitrator set forth the issue as whether the Agency violated the parties' agreement and federal promotion guidelines, and if so, what should be the remedy. Id. at 19.
The Arbitrator found that the grievant was harmed when the personnelist told him that the vacancy would be filled at the GS-13 level. Id. at 20. According to the Arbitrator, the personnelist and his supervisor knew that the position "might be filled" as a GS-14. Id. In this regard, the Arbitrator concluded that the personnelist's reply to the grievant was "misleading" and "but for this personnel action the [g]rievant would have applied for the position." Id. at 21. Based on the grievant's career history and testimony from the selecting official, the Arbitrator determined that the grievant was "well-qualified" for the position. Id.
The Arbitrator concluded that the Agency violated Article 3, §1(B) of the parties' agreement, which requires that all employees and applicants for employment should receive fair and equitable treatment. [n1] In addition, the Arbitrator concluded that the Agency violated Article 17, Merit Staffing, § 1(C), which dictates that the merit promotion program will be "administered in an equitable and consistent manner[.]" [n2] Id. at 23. According to the Arbitrator, "different information was given to the [g]rievant from that given to other potential [ v63 p220 ] applicants." Id. at 22. Accordingly, the Arbitrator sustained the grievance.
As a remedy, the Arbitrator directed the Agency to set aside the five appointments to the positions advertised in the vacancy and to re-advertise the positions. See id. at 23. In addition, the Arbitrator awarded the grievant priority consideration for the vacancy and directed the Agency to pay the grievant backpay with interest if the grievant is selected for one of the positions under the re-advertised vacancy announcement. See id.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's determination that the Agency violated Article 3 of the parties' agreement is contrary to law. According to the Agency, Article 3 is merely a restatement of the merit principles found in 5 U.S.C. § 2301, which are "hortatory and are not self-executing." Exceptions at 3. As such, the Agency argues that a remedy is available only if an arbitrator also finds a "violation of a law, rule, or regulation that implements or directly concerns those merit system principles." Id. In this case, the Agency maintains that the Arbitrator did not find such a violation.
The Agency also contends that the Arbitrator's determination that the Agency violated Article 17(1)(C) of the parties' agreement fails to draw its essence from the agreement. Specifically, the Agency asserts that the Arbitrator failed to state which requirement of Agency Order ORO O 320 the Agency violated. The Agency also argues that the Arbitrator's remedy fails to draw its essence from the parties' agreement because, according to the Agency, the parties' agreement does not provide for priority consideration.
B. Union's Opposition
The Union contends that the Arbitrator properly determined that the Agency violated not only Article 3, § 1(B), but also Article 17, §1(C). Opposition at 2. According to the Union, the Arbitrator concluded that the Agency did not act in an equitable and consistent manner when the personnelist gave the grievant misleading information about the vacancy. The Union maintains that the agreement implements both Agency and department directives, as well as government-wide regulations.
In addition, the Union contends that the Arbitrator properly found that priority consideration and re-running the selection were appropriate remedies. The Union asserts that there is Authority precedent finding such remedies appropriate. See Opposition at 9 (citing United States Small Bus. Admin., Atlanta, Ga., 37 FLRA 137 (1990)). The Union also asserts that although the Agency claimed that the award was contrary to 5 C.F.R. § 335, it failed to demonstrate what part of that regulation was violated.
Finally, the Union contends that the award draws its essence from the parties' agreement and that the Agency failed to demonstrate that the Arbitrator's remedy is inconsistent with the parties' agreement.
IV. Analysis and Conclusions
A. Whether the Award Is Contrary to Law
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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.
The Agency bases its contrary to law contention on the Arbitrator's determination that the Agency violated Article 3, §1(B). However, the Agency does not except to the Arbitrator's determination that the Agency also violated Article 17, §1(C).
The Authority has consistently required that when an arbitrator has based an award on separate and independent grounds, an excepting party must establish that all of the grounds are deficient before the Authority can find that the award is deficient. See, e.g., AFGE, Local 1546, 59 FLRA 126, 128 (2003). Here, the Arbitrator based his award on violations of two separate and independent sections of the parties' contract. As the Agency's contrary-to-law exception concerns only one of the sections, the exception, even if correct, fails to demonstrate that the award is deficient. See id.
Accordingly, we deny the exception.
B. Whether the Award Fails to Draw Its Essence from the Agreement
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in [ v63 p221 ] reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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)