Department of the Treasury, U.S. Customs Service, Region VII (Activity) and National Treasury Employees Union (Decision)

 7 FLRA No. 49
 
 DEPARTMENT OF THE TREASURY,
 U.S. CUSTOMS SERVICE,
 REGION VII
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
                                            Case No. O-AR-159
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR PAULINE PORTER WATTS FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE GRIEVANT APPLIED FOR A POSITION VACANCY ANNOUNCED BY THE
 ACTIVITY.  HOWEVER, THE GRIEVANT WAS NOT AMONG THE CANDIDATES EVALUATED
 AS BEST QUALIFIED AND REFERRED TO THE SELECTING OFFICIAL.  A GRIEVANCE
 WAS FILED OVER THE EVALUATION AND THE MATTER WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    AFTER FINDING THE GRIEVANCE ARBITRABLE, THE ARBITRATOR STATED THE
 ISSUE BEFORE HER AS WHETHER THE GRIEVANT WAS ERRONEOUSLY OMITTED FROM
 THE BEST QUALIFIED LIST BECAUSE THE EVALUATION BOARD DID NOT FULLY
 COMPLY WITH THE PROCEDURES OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.  AFTER CAREFULLY CONSIDERING THE CONSIDERING THE TESTIMONY,
 EVIDENCE, AND BRIEFS OF THE PARTIES, THE ARBITRATOR DETERMINED THAT THE
 UNION HAD FAILED TO PROVE THAT THE GRIEVANT HAD BEEN OMITTED FROM THE
 BEST QUALIFIED LIST BY PROCEDURAL ERRORS.  NOTING THAT "(I)T IS MOST
 DIFFICULT TO ESTABLISH IMPROPER PROCEDURES USED BY THE EVALUATION BOARD"
 AND THAT SHE COULD NOT "SUBSTITUTE THE JUDGMENT OF THE UNION FOR THAT OF
 THE EVALUATION BOARD," THE ARBITRATOR REASONED THAT BECAUSE IT WAS NOT
 ESTABLISHED THAT THE GRIEVANT WAS BETTER QUALIFIED THAN THE CANDIDATES
 ON THE BEST QUALIFIED LIST, IT HAD NOT BEEN PROVEN THAT THE PROCEDURES
 WERE FAULTY.  CONSEQUENTLY, AS HER AWARD, THE ARBITRATOR DENIED THE
 GRIEVANCE.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).
 
    IN ITS EXCEPTION, THE UNION CONTENDS THAT THE AWARD DOES NOT DRAW ITS
 ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT OF THIS
 EXCEPTION, THE UNION MAINTAINS THAT THE ARBITRATOR'S AWARD "IGNORES THE
 STANDARD FOR RELIEF" PROVIDED FOR IN THE AGREEMENT "IF AN EMPLOYEE WAS
 ERRONEOUSLY OMITTED FROM THE BEST QUALIFIED LIST." THE UNION ARGUES THAT
 THE ARBITRATOR ESTABLISHED, INSTEAD, A NEW STANDARD OF AN EMPLOYEE
 HAVING TO PROVE THAT HE OR SHE IS BETTER QUALIFIED THAN THE CANDIDATES
 ON THE BEST QUALIFIED LIST.
 
    THE UNION PROVIDES NO BASIS FOR FINDING THE ARBITRATOR'S AWARD
 DEFICIENT.  THE ISSUE STATED BY THE ARBITRATOR WAS WHETHER "THE GRIEVANT
 (WAS) ERRONEOUSLY OMITTED FROM THE BEST QUALIFIED LIST" AND THE DECISION
 OF THE ARBITRATOR IN DIRECT RESPONSE TO THIS ISSUE WAS THAT THE UNION
 HAD NOT PROVEN THAT THE GRIEVANT "WAS OMITTED BY PROCEDURAL ERRORS" OR
 THAT "THE PROCEDURES WERE FAULTY." THUS, THE UNION HAS IN NO MANNER
 ESTABLISHED THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE AGREEMENT.
  SEE, E.G., UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 185,
 AFL-CIO, 2 FLRA NO. 60(1980).  RATHER, THE UNION'S EXCEPTION CONSTITUTES
 DISAGREEMENT WITH THE ARBITRATOR'S REASONING AND CONCLUSIONS IN REACHING
 HER AWARD AND CONSEQUENTLY THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT UNDER THE STATUTE.  E.G., AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2206 AND DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY ADMINISTRATION, SOUTHEASTERN PROGRAM SERVICE
 CENTER, 6 FLRA NO. 103(1981).
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 14, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A MATTER
 
    DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE
 AUTHORITY FINDS THAT THE
 
    AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;  THE AUTHORITY MAY TAKE SUCH ACTION AND
 MAKE SUCH RECOMMENDATIONS
 
    CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR
 
    REGULATIONS.