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38:0028(5)AR - - HHS, SSA and AFGE Local 2608 - - 1990 FLRAdec AR - - v38 p28

[ v38 p28 ]
The decision of the Authority follows:

38 FLRA No. 5








LOCAL 2608




November 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Vincent D. McDonnell filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.

The Arbitrator found, among other things, that candidates who were given priority consideration for a job vacancy, but who were subsequently rejected, were to be given a written explanation for their non-selection.

For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the Agency's exception.

II. Background and Arbitrator's Award

The Union filed two grievances asserting that the Agency had violated the parties' agreement in filling a job vacancy. The grievances were not resolved and were submitted to arbitration.

The Arbitrator left determinations of the merits of the cases to separate subsequent arbitrations and ruled only on one issue common to both grievances. Absent agreement by the parties, the Arbitrator framed the issue as follows:

Did the employer . . . violate the national agreement between the [the Agency] and [the Union] when it published the vacancy and filled job vacancy RO-11-330-88J. If so what is the remedy?

Award at 1.

As pertinent here, the Arbitrator interpreted "bona-fide consideration" in Article 26, Section 8A of the parties' agreement to mean that those priority consideration candidates who were not selected for the position were to receive an explanation of rejection. Id. at 3-4. The Arbitrator held that this explanation "must be in writing and grievable to arbitration if the employee does not accept the reason for the non competitive rejection." Id. at 8.

III. Positions of the Parties

A. The Agency's Exception

The Agency asserts that the Arbitrator's award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. Exception at 1. The Agency maintains that the Arbitrator's holding "that failure to promote a candidate given priority consideration requires a written explanation to the employee and that such an action would be grievable to arbitration[,] . . . is deficient because it adds a substantive item to the agreement of the parties." Id. at 3.

The Agency asserts that quarterly "written notice to the union" of statistics under Article 26, Section 8D is all that is required by the agreement. Id. at 5. Furthermore, the Agency asserts that "[n]otification in writing of reasons for non-selection would be a radical departure from the specific language in the contract and existing promotional procedures[]" of the Agency. Id. at 6.

Although the Agency also objects to the Arbitrator's decision that this failure to promote is "grievable to arbitration," the Agency did not present any argument in support of this contention.

B. The Union's Opposition

The Union contends that the Agency's exception "has failed to meet the 'essence' test" and "merely expresses disagreement with the Arbitrator's interpretation of what 'bona fide consideration' . . . entails." Opposition at 1-2. Furthermore, the Union argues that the Union notification under Article 26, Section 8D provides for statistics on priority considerations and "is not a waiver of employee rights" to receive a written explanation of non-promotion under priority considerations. Id. at 2-3.

The Union also maintains that the failure to promote a priority consideration candidate is fully grievable and arbitrable under Article 24, Section 2A of the agreement, which defines grievance as "any matter relating to the employment of the employee." Id. at 2 (emphasis omitted).

IV. Analysis and Conclusion

The issue presented here is whether the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient because it fails to draw its essence from the agreement, it must be shown 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, for example, U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 462 (1990) (IRS).

The Agency has not demonstrated that the Arbitrator's award evidences a manifest disregard of Article 26, Section 8A by concluding that bona-fide consideration means that the Agency must provide a written explanation of non-selection to the priority consideration candidate. The Arbitrator found that because Article 26, Section 8A "converts competitive to non-competitive selection[,] there must be more to this status than just advising of a name and continuing to pass over the candidate." Award at 2. The Arbitrator stated that while priority consideration "is not identical with automatic promotion as the union seems to contend, certainly it is more than an unexplained rejection time after time." Id. at 3. The Arbitrator found that the wording of the agreement evidenced the parties' intent to make distinctions in the use of the words "consideration," "serious consideration," and "bona fide consideration." Id. The Arbitrator concluded that by requiring bona-fide consideration "the parties desired more than just a pro-forma sending out of a name on a priority consideration and non promotion time after time without proper reason." Id. at 4.

In our view, the Arbitrator's interpretation of the agreement is reasonable and plausible. The Arbitrator has not fashioned a new remedy or added a new type of consideration for which there is no rational basis in the agreement. Unlike the awards which the Authority has found deficient because they have failed to draw their essence from the agreement, the Agency fails to establish that the Arbitrator's interpretation of Article 26 does not have a rational basis in the parties' agreement. See American Federation of Government Employees, Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725 (1985); Overseas Education Association and Office of Dependents Schools, Department of Defense, 4 FLRA 98 (1980).

The Arbitrator's conclusion that the "bona-fide consideration" under Article 26, Section 8A should be in written form and transmitted to the candidate constituted his interpretation and application of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990) (arbitrator decided that the parties' agreement prohibited the agency from using a court reporter to record an employee's oral answer to a proposed adverse action). In our view, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. That contention provides no basis for finding the award deficient under section 7122(a)(2) of the Statute. IRS, 36 FLRA at 463 (1990).

V. Decision

The Agency's exception is denied.

(If blank, the decision does not have footnotes.)