36:0261(33)AR - - NAGE Local R3-112 and Army, 97th Army Reserve Command - - 1990 FLRAdec AR - - v36 p261
[ v36 p261 ]
The decision of the Authority follows:
36 FLRA No. 33
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
97TH ARMY RESERVE COMMAND
July 10, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Arthur A. Sloane filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance of an employee who protested the Agency's failure to select him for an aircraft mechanic leader position. The Union contends that the award is contrary to law, rules, and regulations governing merit principles and prohibited personnel practices; does not draw its essence from the parties' collective bargaining agreement; and is based on a nonfact. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is employed as a WG-10 aircraft mechanic. In January 1988, another WG-10 aircraft mechanic, Robert Breen, who had previously been unable to work due to an ankle injury, returned to work. Because of his injury, Breen was placed in a light duty status and assigned the duties of acting work leader. Breen was medically cleared to resume full duty status in February 1988, but he continued to perform the duties of acting work leader until August 1988. At that time, he was officially promoted to a recently established position of WL-11 aircraft mechanic leader which he had been selected to fill on July 20, 1988. The grievant had also applied for the aircraft mechanic leader position and was one of the four best-qualified applicants, including Breen, referred for selection.
The grievant filed a grievance in which he contended that the Agency "repeatedly and illegally . . . deprived [him] of a genuine opportunity for merit promotion by a pattern of preselection whereby people had been allowed to perform the duties of the higher-graded position for longer than the [parties'] contract or relevant regulations allowed." Award at 2. The grievance was submitted to arbitration.
The Arbitrator determined that the issue was:
Did the Agency violate the negotiated agreement and Agency and federal regulations in the selection process that resulted in Robert (Chris) Breen being selected for a WL-11 Aircraft Mechanic Leader . . . position on July 20, 1988? If so, what is the appropriate remedy?
Id. at 1.
As a preliminary matter, the Arbitrator ruled on the Agency's contention that the grievance was untimely filed. He found, in agreement with the Agency, that the portion of the Union's complaint which alleged a "'prohibited preselection pattern' that allowed at least two other individuals an unfair advantage as potential permanent Work Leaders" was untimely filed. Id. at 9. The Arbitrator found, however, that the Union's contentions regarding Breen's "over-long detail and preselection" were "inextricably woven" into the core of the Union's argument that the grievant should have been selected and concluded that the Union's contentions with respect to Breen's detail were timely. Id., emphasis in original.
The Arbitrator found that "the Agency failed to comply with the letter of both its contract with the Union and relevant regulations in three different situations regarding Breen's detail." Id. at 10. Specifically, he found that the Agency failed to: " document the detail in writing when it exceeded 30 days;  temporarily promote Breen non-competitively to Acting Work Leader after 60 days; and  either advertise a competitive temporary promotional opportunity or operate thenceforth without an Acting Work Leader after 120 days." Id. The Arbitrator concluded that these violations were "something more than minimal and potentially could have resulted in [the grievant's] failure to be selected for promotion." Id.
The Arbitrator found, however, that the Union failed to prove that the Agency's violations in connection with the detail resulted in the grievant's nonselection. The Arbitrator determined that "the Agency considered interpersonal skills and leadership ability to be very important for the Work Leader position." Id. at 11. Further, the Arbitrator stated that the grievant had had an opportunity to show the Agency his ability as a work leader and he found that the grievant's "interpersonal and leadership skills have left something to be desired, both in relation to Breen and on an absolute basis." Id. at 12. The Arbitrator pointed out that the grievant had been considered for four other work leader positions and was not selected in each instance.
The Arbitrator held that it "strain[s] credulity . . . to argue that even if Breen's assignment to Acting Work Leader duties had ended when it should have . . . [the grievant] would have been selected over him for the permanent position." Id. The Arbitrator further found no "convincing evidence that even had Breen not been selected the grievant would have been chosen over the two other candidates on the 'Best Qualified' list[.]" Id. at 13, emphasis in original. The Arbitrator stated that "[w]hile the Agency admittedly violated the negotiated agreement and its own federal regulations in some respects in detailing Breen, there is no proof that the violations contributed to Breen's permanent selection or that in the absence of the violations [the grievant] would have been selected." Id. at 13, emphasis in original.
The Arbitrator concluded that "[t]he Agency did not violate the negotiated agreement and Agency and [F]ederal regulations in the selection process that resulted in Robert (Chris) Breen being selected for a WL-11 Aircraft Mechanic Leader ("Work Leader") position on July 20, 1988." Id. at 14.
III. First Exception
A. Positions of the Parties
The Union contends that the award is contrary to law, rules and regulations governing merit promotion principles and prohibited personnel practices, as well as provisions of the parties' agreement which apply those principles. The Union contends that merit system principles contained in 5 U.S.C. § 2302(b); Federal Personnel Manual (FPM) chapters 300 and 335; the Agency's merit placement and promotion program; and Articles IV and XVI of the parties' agreement require "that details to higher graded positions in excess of 120 days must be made under competitive promotion procedures, and that merit only, rather than some unfair preference or advantage, must provide the basis for promotion decisions in the federal service." Exceptions at 2. The Union contends that the Agency violated those merit system principles when it detailed Breen to the position of acting work leader in excess of 120 days without using competitive promotion procedures.
The Union maintains that as a result of the Agency's violations, the grievant was denied fair consideration for promotion. The Union states that the Arbitrator's "failure to recognize or address the preselection involved in the improper promotion procedures and to consider the implication of such violations when issuing his award is contrary to the law governing federal sector labor relations." Id. at 3.
The Agency asserts that the Union does not establish that the Arbitrator's award is contrary to law, rule or regulation. The Agency contends that the Union is merely disagreeing with the Arbitrator's conclusion that there was no connection between the improper overlong detail of Breen and the failure of the grievant to be selected and is attempting to relitigate that issue before the Authority. The Agency argues that the issue presented concerns whether the Agency violated selection procedures when Breen was selected for the permanent work leader position and not whether the Agency violated Federal regulations and the negotiated agreement when Breen was noncompetitively assigned to the acting work leader duties for more than 120 days.
B. Analysis and Conclusion
We find that the Union has failed to establish that the Arbitrator's award is contrary to law, rule or regulation. That is, the Union has not shown that the Arbitrator was obligated by law to find that the Agency's violation of the collective bargaining agreement with regard to the detail of Breen caused the grievant not to be selected for promotion. The Agency's decision to select Breen rather than the grievant for the aircraft mechanic position was a permissible exercise of management's right to make selections under section 7106(a)(2)(C) of the Statute.
The issue in this case, as formulated by the Arbitrator, concerned whether the selection of Breen instead of the grievant violated the agreement and merit promotion regulations. The Union did not disagree with the Arbitrator's statement of the issue. See Exceptions at 1-2. The issue was not whether the overlong detail of Breen was a violation of the collective bargaining agreement. The Agency conceded that there was such a violation. Award at 7. The Union contends that the Arbitrator should have found that the Agency's violation in connection with the detail resulted in the grievant's failure to be selected for the aircraft mechanic position and that the grievant is entitled to a remedy for the violation. However, the Arbitrator specifically found that the Union had not provided proof that the Agency's violation of the collective bargaining agreement in connection with Breen's detail resulted in the grievant's failure to be selected. See Award at 10-11.
The Arbitrator found that the evidence did not convince him that the grievant would have been selected over Breen or the other two eligible candidates, even if the violation of the agreement had not occurred. He reconstructed the promotion action and found that: (1) Breen had best exhibited the qualities of leadership which management sought; (2) the grievant had had an opportunity to demonstrate his abilities while serving in assignments as acting work leader; and (3) the testimony of the supervisors was convincing that the grievant's "interpersonal and leadership skills have left something to be desired, both in relation to Breen and on an absolute basis." Id. at 12.
Therefore, we reject the Union's argument that because the Arbitrator failed to find that the grievant's nonselection was the result of the Agency's violation in connection with Breen's detail, the Arbitrator's award is contrary to law. The Arbitrator considered the Union's arguments concerning the effect of the improper detail and concluded that the grievant would not have been selected for the aircraft mechanic position in any event. The Union has not shown that the Arbitrator was obligated by law to find that the grievant was entitled to promotion or any other remedy because of the Agency's admitted violation of the agreement in the Breen detail. Accordingly, the Union's first exception will be denied.
IV. Second Exception
A. Positions of the Parties
The Union contends that the award does not draw its essence from the parties' agreement. The Union states that "[t]here is no plausible way to reconcile the [A]rbitrator's award with the applicable contract." Exceptions at 4. The Union argues that because the Arbitrator found that (1) the Agency had violated the parties' agreement and Federal and Agency personnel regulations when it detailed Breen to the Acting Work Leader position, and (2) Breen's detail and the grievant's nonselection were "inextricably woven," an award that fails to sustain the grievance "manifestly disregards the agreement." Id.
The Agency contends that the Union's second exception is "based upon a misstatement of the contractual provisions regarding details and a misunderstanding of the [A]rbitrator's conclusions." Opposition at 5. The Agency argues that there is no Agency requirement that details in excess of 60 days be filled through competitive temporary promotion procedures. The Agency asserts that those procedures are required only if the assignment exceeds 120 days and notes that a noncompetitive temporary promotion is permissible for assignments from 60 to 120 days. The Agency also argues that the Union mistakenly relies on the belief that the Arbitrator found that the contractual violations concerning Breen's detail and promotion were "inextricably woven." The Agency asserts that the Arbitrator concluded that there was no proof that the violations concerning the detail resulted in Breen being chosen for the position.
B. Analysis and Conclusion
We conclude that the Union has not shown that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 34 FLRA 757, 761 (1990).
The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the collective bargaining agreement under any of the above tests. The Union has not shown that any provision of the agreement requires the promotion of the grievant as the result of the agreement violation concerning Breen's overlong detail. As discussed with respect to the first exception, in order to require the selection of the grievant under section 7106(a)(2)(C), there must have been established a direct causal connection between the Agency's improper action and the failure to select the grievant. The Arbitrator found that there was no direct connection between the selection of Breen instead of the grievant and the Agency's violation of the collective bargaining agreement.
The Union has misunderstood the Arbitrator's statement that the agreement violation and the promotion action were "inextricably woven." Award at 9, emphasis in original. The statement was made by the Arbitrator in the context of his ruling as to the timeliness of the grievance and was a characterization of the Union's arguments to the Arbitrator: "In the case of the instant grievance, the two Union contentions are inextricably woven." Id. That statement evidenced the Arbitrator's understanding of the basis for the Union's argument, but was not tantamount to a conclusion that the improper selection of Breen for a detail had resulted in the failure to select the grievant. The Union has not shown that any requirement of law or the collective bargaining agreement compelled the Arbitrator to reach such a conclusion. Therefore, the Union has not shown that the award fails to draw its essence from the agreement and the Union's second exception fails to provide a basis for finding the award deficient.
V. Third Exception
A. Positions of the Parties
The Union contends that the award is based upon a nonfact or a "gross error of objectively ascertainable facts" because "in order to sustain the grievance, the Union had to establish that the grievant . . . would have been promoted over [the selectee] if the detail had ended timely." Id. at 5. The Union asserts that the Arbitrator misapprehended the Union's burden in this case by finding that the Union had to "prove that [the grievant] would have been selected for the promotion 'but for' the Agency's procedural violations." Id. at 6. The Union "concedes that [it] did not establish beyond cavil that [the grievant] would have been promoted 'but for' the Agency's violations," but argues that all it was required to prove to sustain the grievance was that "the Agency's promotion procedures violated the contract and personnel law." Id., emphasis in original. The Union points out that even if the findings required to order a retroactive promotion were not made, there are still a number of remedies, including priority consideration, available to compensate the grievant for the Agency's violations. The Union requests the Authority to recommend appropriate relief for the grievant's failure to receive fair and full consideration for promotion.
The Agency contends that the Union is attempting to relitigate the merits of the case. The Agency argues that the parties' agreement does not expressly provide for application of a specific burden of proof, and, therefore, an arbitrator may establish "whatever standard of proof that the arbitrator deems appropriate and the award is not reviewable on this basis." Opposition at 6. Further, the Agency contends that the Union fails to show that the Arbitrator "relied upon any indisputably erroneous fact that was outcome determinative," but rather is disagreeing with the Arbitrator's findings regarding the selection process. Id. at 7.
B. Analysis and Conclusion
We reject the Union's contention that the award is based on a nonfact. We will find an award deficient under the Statute because it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, Department of the Army, 6th Infantry Division (Light), Fort Richardson, Alaska and American Federation of Government Employees, Local 1834, Fort Wainwright, Alaska, 35 FLRA 42, 45 (1990).
The Union has not shown that any facts underlying the award are erroneous. The Arbitrator applied the proper test for the exercise of management's right to select under section 7106(a)(2)(C) of the Statute when he required the Union to demonstrate that the grievant would have been selected but for the violation of the agreement caused by the overlong detail of Breen. The Union has not claimed or shown that the Arbitrator's failure to find that there was such a causal relationship between Breen's detail and the grievant's not being selected was erroneous and based on a mistake of fact. Neither has the Union shown that, in the absence of a causal relationship, the grievant is entitled to a remedy because of the improper detail. Rather, the Union is only disagreeing with the Arbitrator's findings of fact and his evaluation of the evidence and testimony, which convinced him that the grievant would not have been selected for the position even if the agreement violation had not occurred. That disagreement does not provide a basis for finding the award deficient. See U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 34 FLRA 518 (1990). Therefore, the Union's exception fails to establish that the award is deficient.
VI. The Grievant Is Not Entitled To Priority Consideration
A. Positions of the Parties
The Union concedes that the Arbitrator or the Authority can order retroactive promotion only if it is found that the grievant would have been promoted if the violation had not occurred. However, the Union asserts that the Agency's regulations provide for priority consideration for the next appropriate vacancy to any employee who fails to receive proper consideration in a promotion action which is not overturned. The Union requests that the Authority set aside the Arbitrator's award and "fashion such other relief as may be considered necessary and consistent with applicable laws, rules and regulations, including granting priority consideration to the grievant for the next Work Leader Vacancy in his shop." Exceptions at 2.<