Social Security Administration (Agency) and American Federation of Government Employees, Local 3627 (Union)

[ v63 p274 ]

63 FLRA No. 94

SOCIAL SECURITY ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3627
(Union)

0-AR-4148

_____

DECISION

April 29, 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 both an initial award and a subsequent award of Arbitrator John R. Canada 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 both exceptions. [n1] 

      The grievance alleges that the Agency violated the parties' national agreement and memoranda of understanding (MOUs) in filling paralegal positions during implementation of a hearing process improvement (HPI) initiative. In the initial award, the Arbitrator sustained the grievance and granted affected employees priority consideration for promotion. The Arbitrator also awarded backpay to any employee who was promoted as a result of priority consideration. In the subsequent award, the Arbitrator "tr[ied] to clarify" the initial award by explaining how the initial award was intended to be implemented. Subsequent Award at 1.

      For the reasons that follow, we conclude that the award of backpay is deficient, but otherwise deny the Agency's exceptions to the initial award. We conclude that the subsequent award is deficient because it improperly modifies the initial award.

II.      Background and Arbitrator's Awards

      Implementation of the HPI initiative was governed by two MOUs negotiated between the parties. During the implementation, the Agency created and filled new paralegal analyst positions (paralegal positions) at the GS-9 grade level. Initial Award at 1. After the paralegal positions were filled, the Union filed a grievance charging that the Agency violated the national agreement and the MOUs in filling 99 of these positions in Region IV of the Agency. Id. at 2. The grievance was not resolved and was submitted to arbitration.

A.      Initial Award

      In the absence of a stipulation of the issues, the Arbitrator first addressed whether all 99 paralegal positions in Region IV were to be filled with unit employees. The Arbitrator concluded that "the negotiated intention" was that the positions "would be filled by promotions . . . or lateral movements of individuals to GS-9 [paralegal positions]." Id. at 4. However, the Arbitrator disagreed with the Union "that all individuals selected must be from the bargaining unit." Id. Addressing the "processes/procedures" used to fill the paralegal positions, the Arbitrator determined that "the Agency was in significant violation of . . . Article 26 [of the national agreement], particularly Sections 7.B and 11.A and 11.C, [n2]  as well as parts of the MOUs." Id. at 5 (footnote added).

      Addressing the issue of remedy, the Arbitrator determined that it would be "counter-productive" to vacate the selections that had been made several years earlier. Id. Instead, he concluded that "[t]he best way to achieve a measure of equity in this case is to grant (within total numbers negotiated) priority consideration[] [ v63 p275 ] under Agreement Article 26, Section 13[.] [n3] " Id. (footnote added). Accordingly, he granted priority consideration to unit employees who were "entitled to first consideration but who were not selected under the HPI program and who have not subsequently been promoted[.]" Id. He stated that it was difficult to determine the numbers of priority considerations to be granted but accepted the Agency's claim that a maximum of 24 "priority considerations might be allocated[.]" Id. (citations omitted). In addition, the Arbitrator found and ordered, as follows:

[T]he Agency engaged in egregious stone-walling, destruction of important evidence, and delaying of this [c]ase to the extent that, as an added penalty, it should reimburse any employees who are promoted to GS-9 Paralegal as a result of this Award for their lost pay (differential) from December 1, 2000 until the date of their promotion.

Id.

B.      Subsequent Award

      The Union requested, pursuant to Article 25, Section 5.G [n4]  of the national agreement, that the Arbitrator clarify his award. In response, the Arbitrator stated, as follows, regarding the 24 priority considerations in the initial award:

I would assume [that] they would be "used up" only as applicable eligible employees are selected for promotion to GS-9 Paralegal. . . . This pattern would be continued as GS-9 Paralegal positions become available in the named offices until the [24] positions have been filled through priority considerations[.]

Subsequent Award at 1.

III.      Positions of the Parties

A.      Initial Award

1.      Agency's Exceptions

      The Agency contends that the initial award: (1) is based on a nonfact; (2) fails to draw its essence from the national agreement; (3) is contrary to management's right to select under § 7106(a)(2)(C) of the Statute; and (4) is contrary to law.

      In regard to its nonfact claim, the Agency maintains that, in the initial award, the Arbitrator interpreted the MOUs to prohibit the Agency from considering unit employees temporarily promoted to the GS-10 hearing office supervisor (HOS) position for the paralegal position. In support, the Agency cites the Arbitrator's statement that the negotiated intent of the MOUs was that the "99 positions would be filled by promotions  . . . or lateral movements of individuals to GS-9 [paralegal positions]." Id. at 18. The Agency argues that the Arbitrator's interpretation of the MOUs is clearly erroneous, but for which the Arbitrator would have reached a different result.

      Similarly, in its essence claim, the Agency asserts that the Arbitrator erroneously concluded that unit employees temporarily promoted to the GS-10 HOS position had been improperly selected for the GS-9 paralegal position. The Agency claims that the award fails to draw its essence from Article 26, Sections 5.B and 11.F., which, according to the Agency, provide that an employee may apply for a lower-graded position that has a higher promotion potential. [n5]  In contending that the award is contrary to management's right to select, the Agency again claims that the Arbitrator interpreted the MOUs to prohibit the Agency from considering unit employees temporarily promoted to the GS-10 HOS position for the paralegal position. The Agency asserts that, in this respect, the award excessively interferes with management's right to select under § 7106(a)(2)(C). Id. 23-24.

      [ v63 p276 ] Finally, the Agency asserts that the Arbitrator expressly awarded the backpay as punitive damages and, as such, the award is contrary to law. Id. at 14-15.

2.      Union's Opposition

      The Union contends that the award is not deficient. According to the Union, the GS-9 paralegal positions could be, and were, properly filled by some higher-graded applicants. Opposition to Exceptions to Initial Award at 4-5. The Union also argues that the Agency's assertion in its exceptions that office directors and chief judges were the selecting officials, Exceptions to Initial Award at 11, is unsupported, and the Union submits an affidavit of the regional management officer (RMO) to refute the assertion. Id. at 2-3. As to the Arbitrator's backpay remedy, the Union concedes that it is deficient and requests a "remand . . . to the parties for consideration of a remedy[.]" Id. at 3.

B.      Subsequent Award

1.      Agency's Exceptions

      The Agency contends that the Arbitrator's subsequent award is deficient under the doctrine of functus officio and fails to draw its essence from the national agreement. As to the first contention, the Agency asserts that the Arbitrator did not merely clarify the initial award, but, instead, without the joint consent of the parties, the Arbitrator improperly "modified his original award of twenty-four (24) priority considerations to essentially require twenty-four (24) unspecified delayed promotions." Exceptions to Subsequent Award at 8. As to the second contention, the Agency contends that the subsequent award fails to draw its essence from the national agreement by improperly interpreting the term "priority consideration" and by increasing the number of priority considerations an employee can exercise. Id. at 10-12.

2.      Union's Opposition

      The Union contends that the Agency's exceptions to the subsequent award are not supported and reiterates its earlier request that the Authority remand this case for consideration of an appropriate remedy. In particular, the Union asserts that the Arbitrator's "reluctance to order vacating the selections . . . has resulted in a remedy that is not consistent with the facts of the case or the contract." [n6]  Opposition to Exceptions to Subsequent Award at 2.

IV.      Preliminary Issue

      In its opposition to the Agency's exceptions to the initial award, the Union submits an affidavit of the RMO, in which she describes a selection process that the Union claims supports the Arbitrator's finding of a violation of the national agreement. Opposition to Exceptions to Initial Award at 2-3. The Agency moves to strike the affidavit under § 2429.5 of the Authority's Regulations on the ground that it was not, but could have been, presented to the Arbitrator. In opposition to the motion, the Union argues that it properly submitted the affidavit in response to the Agency's exceptions. [n7] 

      Section 2429.5 bars Authority consideration of issues or evidence that could have been, but were not, presented in the proceedings before the arbitrator. E.g., United States Dep't of Veterans Affairs, Alaska VA Healthcare System, Anchorage, Alaska, 60 FLRA 968, 969 (2005) (DVA). However, when an affidavit is submitted to resolve whether an arbitration award is deficient, and it pertains to a matter that arose as the result of the award, the affidavit is not barred by § 2429.5. See id. (affidavit supporting an exception to an award arose from the award itself and was not barred by § 2429.5); United States Dep't of Veterans Affairs Med. Ctr., North Chicago, Ill., 52 FLRA 387, 399 n.10 (1996) (VAMC) (affidavits that pertained to whether the award was deficient arose as the result of the award and were not barred by § 2429.5).

      Here, the disputed affidavit is presented solely to refute the assertion by the Agency in its exceptions to the initial award that the selecting officials were the office directors and chief judges. Because the affidavit is submitted solely to refute the Agency's exceptions, it pertains to a matter that arose as a result of the award and is not barred by § 2429.5. See DVA, 60 FLRA at 969; VAMC, 52 FLRA at 399 n.10. Accordingly, we deny the Agency's motion to strike. [ v63 p277 ]

V.      Analysis and Conclusions

A.      The initial award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that the 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). The appealing party may not challenge an arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. E.g., United States Dep't of Homeland Security, United States Customs and Border Prot., JFK Airport, Queens, N.Y., 62 FLRA 129, 131 (2007).

      The Agency asserts that the Arbitrator interpreted the MOUs to prohibit the Agency from considering unit employees temporarily promoted to the GS-10 HOS position for the GS-9 paralegal position and that this interpretation is clearly erroneous, but for which the Arbitrator would have reached a different result. However, as discussed in more detail below, the award does not show, and the Agency has not established, that the Arbitrator interpreted the MOUs to prohibit the Agency from considering unit employees temporarily promoted to the GS-10 HOS position for the GS-9 paralegal position. Moreover, the Agency is disputing the Arbitrator's alleged interpretation and application of the MOUs, which is not subject to challenge as a nonfact. Id. Accordingly, we deny this exception.

B.      The initial award does not fail to draw its essence from the national 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 reviewing arbitration awards in the private sector. Id. at 132-33. Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the 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 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. Id. at 133. 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.

      Consistent with the exception addressed above, the Agency asserts that the Arbitrator concluded that unit employees temporarily promoted to the GS-10 HOS position had been improperly selected for the GS-9 paralegal position. However, the Agency fails to establish that the Arbitrator concluded that unit employees selected for the GS-9 paralegal position who previously had been temporarily promoted to the GS-10 HOS position had been improperly selected. In this regard, the initial award contains no such conclusion by the Arbitrator, and, in finding that the promotion process was improper, the Arbitrator specifically cited only Article 26, Sections 7.B, 11.A, and 11.C of the national agreement, which do not pertain to the dispute over the GS-10 HOS position. Although the Arbitrator also found that the promotion process and procedures violated "parts of the MOUs [,]" Initial Award at 5, the Arbitrator did not specify those parts, and the Agency does not cite any MOU provisions to support its view of the award. For the same reasons, the Agency does not demonstrate how the Arbitrator's remedy conflicts with the parties' contractual recognition -- in Article 26 -- of a right to apply for lower-graded positions with higher promotion potential.

      For the foregoing reasons, the Agency provides no basis for finding that the award fails to draw its essence from the national agreement. See AFGE Local 2357, Nat'l Joint Council of Food Inspection Locals, 62 FLRA 375, 376 (2008) (exception denied when appealing party failed to explain how award failed to draw its essence from the agreement); Soc. Sec. Admin. Region 5, 58 FLRA 59, 61 (2002) (SSA) (because the appealing party misinterpreted the award, no basis was provided for finding that the award failed to draw its essence from the collective bargaining agreement). Accordingly, we deny this exception.

C.      The initial award is not contrary to management's right to select under § 7106(a)(2)(C) of the Statute.

      The Agency's contention that the award is contrary to § 7106(a)(2)(C) relies on its argument that the Arbitrator interpreted the MOUs to prohibit the Agency from considering unit employees temporarily promoted to the GS-10 HOS position for the paralegal position. However, as set forth above, the initial award contains no such interpretation of the MOUs. As the Agency has not substantiated its view of the award, we conclude that the Agency provides no basis for finding that the award impermissibly affects its right to select under § 7106(a)(2)(C). SSA, 58 FLRA at 62 (because the appealing party misinterpreted the effect of the award, no basis was provided for finding the award contrary to [ v63 p278 ] management's right to select under § 7106(a)(2)(C)). Accordingly, we deny this exception.

D.      The award of backpay is deficient as an award of punitive damages.

      When an exception contends that an arbitration award is contrary to law, the Authority reviews de novo the question of law raised by the exception and the award. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). 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. E.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998).

      As the following portion of the award demonstrates, the sole basis specified by the Arbitrator for the award of backpay was punitive:

I find that the Agency engaged in egregious stone-walling, destruction of important evidence, and delaying of this [c]ase to the extent that, as an added penalty, it should reimburse any employees who are promoted to GS-9 Paralegal as a result of this Award for their lost pay (differential) from December 1, 2000 until the date of their promotion.

Initial Award at 5 (emphasis added). As the Authority has uniformly and repeatedly recognized, an award of punitive damages against the federal government is contrary to law. E.g., Veterans Admin. Med. Ctr., Cleveland, Ohio, 19 FLRA 242, 243 (1985) (citing Mo. Pacific R.R., Co. v. Ault, 256 U.S. 554 (1921)); accord United States Dep't of Def., Def. Depot Memphis, Memphis, Tenn., 43 FLRA 228, 236 (1991).

      Accordingly, we conclude that the award of backpay is deficient, and we strike it from the award.

E.     The subsequent award is contrary to the doctrine of functus officio.

      Pursuant to the doctrine of functus officio, once an arbitrator has accomplished the resolution of the matter submitted to arbitration, the arbitrator is generally without further authority. E.g., United States Dep't of the Army Corps of Eng 'rs, Northwestern Div. and Portland Dist., 60 FLRA 595, 596 (2005). As relevant here, an arbitrator may clarify an ambiguous award without a joint request from the parties, but the clarification must conform to the arbitrator's original award. Id. The question presented by the Agency's functus officio exception is whether the Arbitrator's subsequent award constitutes an impermissible modification of the initial award.

      As set forth above, in the initial award, the Arbitrator "grant[ed] . . . priority consideration[] under Agreement Article 26, Section 13[.]" Initial Award at 5. In determining "[t]he total number[] of priority considerations to be granted[,]" the Arbitrator accepted the Agency's claim that a maximum of 24 priority considerations "might be allocated[.]" Id. In the subsequent award, in explanation of how the 24 priority considerations would "be accomplished[,]" the Arbitrator stated, as follows:

I would assume [that] they would be "used up" only as applicable eligible employees are selected for promotion to GS-9 Paralegal. . . . This pattern would be continued as GS-9 Paralegal positions become available in the named offices until the [24] positions have been filled through priority considerations.

Subsequent Award at 1.

      Article 26, Section 13.A defines "priority consideration" as "the bona fide consideration for noncompetitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation." Exceptions to Initial Award, Ex. 7. In the subsequent award, the Arbitrator stated that the priority considerations would continue until 24 positions "have been filled through priority considerations." Subsequent Award at 1. In this regard, the subsequent award requires not only consideration, but also selection by noncompetitive promotion, of affected unit employees. As the Arbitrator converted 24 priority considerations into 24 promotions, we conclude that the subsequent award modifies the initial award. Consistent with this conclusion, we further conclude that the subsequent award is not authorized by Article 25, Section 5.G of the national agreement, which provides for returns by either party to arbitrators for clarification, and not for modifications. See footnote 4, infra. Consequently, because the subsequent award was not pursuant to a joint request of the parties, the modification was impermissible, and the subsequent award is deficient. See Soc. Sec. Admin., Lawrenceburg, Tenn., 60 FLRA 336, 340 (2004) (Member Pope dissenting).

      Accordingly, we conclude that the subsequent award is deficient, and we set it aside. See id. We further reject the Union's request for a remand to consider appropriate remedies. Although we set aside the subsequent award and strike the award of backpay from the initial award, the remedy of priority consideration for promotion remains for the violations found by the Arbitrator. See United States Dep't of Agriculture, Fed. [ v63 p279 ] Grain & Inspection Serv., Grain Inspection, Packers & Stockyards Admin., 58 FLRA 98, 100 (2002) (remand not warranted after striking award of backpay because of additional remedy not found deficient).

VI.     Decision

      The award of backpay is deficient and is struck from the initial award. The Agency's other exceptions to the initial award are denied. The subsequent award is deficient and is set aside.



Footnote # 1 for 63 FLRA No. 94 - Authority's Decision

   After the Union filed its opposition, the Agency filed a motion to strike an affidavit submitted by the Union in its opposition, and the Union filed a response to the motion. The motion is discussed in Part IV, infra.


Footnote # 2 for 63 FLRA No. 94 - Authority's Decision

   Article 26, Section 7.B provides: "For a period of 10 workdays prior to considering candidates from outside the AFGE-bargaining unit, the Employer agrees to first consider for selection internal candidates." Exceptions to Initial Award, Ex. 7. Section 11.A pertinently provides: "Once a well-qualified list has been established . . . , there will be no other candidate information gathered by the selecting official." Id. Section 11.C provides:

If the vacancy is one for which an under-representation exists and is a targeted occupation as identified in the Affirmative Employment Plan, and there are well qualified candidates who would reduce the under-representation, then the selecting official will give serious consideration to those individuals who would reduce the under-representation. If an under-representation is not present, then the selecting official will seriously consider providing upward mobility for those well-qualified candidates who have been stagnated in grade.

Id.


Footnote # 3 for 63 FLRA No. 94 - Authority's Decision

   Article 26, Section 13.A provides: "[A] priority consideration is the bona fide consideration for noncompetitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation." Id.


Footnote # 4 for 63 FLRA No. 94 - Authority's Decision

   Article 25, Section 5.G provides: "If the arbitration award is unclear to either party, the award shall be returned to the arbitrator for clarification." Exceptions to Initial Award, Ex. 8.


Footnote # 5 for 63 FLRA No. 94 - Authority's Decision

   Article 26, Section 5.B provides: "Any selection to a position that provides specialized experience . . . that the employee does not already have and is required for subsequent promotion to a designated higher-graded position and/or a position with known promotional potential must be made on a competitive basis." Exceptions to Initial Award at 23 n.13. Section 11.F provides: "Employees selected for career ladder positions will be promoted to the next higher grade level at the b