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39:0865(73)AR - - Army, Aviation Center, Information Systems Command, Aeromedical Center, Troop Support Agency, Dental Acivity, Safety Center, Fort Rucker,AL and AFGE Local 1815 - - 1991 FLRAdec AR - - v39 p865

[ v39 p865 ]
The decision of the Authority follows:

39 FLRA No. 73














LOCAL 1815




February 27, 1991

Before Chairman McKee and Member Talkin.(*)

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator J. Reese Johnston, Jr. filed by the Union 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 Agency did not file an opposition to the exceptions.

A grievance was filed alleging that a disabled Vietnam era veteran had not been afforded appropriate consideration or preference for advancement as required under Title 38 of the United States Code. The Arbitrator found that such preference was not required and denied the grievance.

For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

In response to a vacancy announcement issued by the Agency, the grievant, a disabled Vietnam era veteran, applied for a promotion to a GS-5 Budget Analyst position. The grievant was not selected and the Union filed a grievance on her behalf. The grievance was not resolved and was submitted to arbitration.

The grievance alleged that the grievant had "applied for promotion . . . [to] Budget Analyst, . . . and was not afforded consideration/preference for job advancement under Title 38 of the United States Code due to the non-existence of a disabled veteran's affirmative action plan, which is required . . . Request for Preference was enclosed in [the] application for the position in question that [the grievant is] grieving." Award at 2 (quoting grievance). The grievance also stated "preference is not what [the grievant is] grieving. What [the grievant is] grieving is that [the Agency] is and always has been in violation of the law in not having a DVAAP [Disabled Veteran Affirmative Action Plan] . . . and that [the grievant] was not afforded job advancement . . . ." Id. at 3 (quoting grievance). The corrective action sought in the grievance was that the grievant "be given job advancement consideration in accordance with Title 38 for the Budget Analyst position and all future positions for which [the grievant applies]. Creation and enforcement of a D.V.A.A.P. as required by law." Id. (quoting grievance).

The Arbitrator, in his decision, set forth verbatim the Agency's third-step and fourth-step decisions on the grievance, as well as an Agency memorandum to the grievant sent to her after the Agency's third-step response.

The Agency's decision at the third step of the grievance procedure specifically notes that, at a meeting regarding the grievance, the Agency advised the Union and the grievant of the existence of the Agency's Disabled Veterans Affirmative Action Plan (DVAAP). The Agency further provided a copy of the DVAAP to the grievant and the Union with the Agency's third-step decision. In its third-step decision, the Agency noted that paragraph 6.b. of the Agency's affirmative action plan provides that disabled veterans will be given "equitable consideration" and that the Agency's DVAAP does not provide for "preference" in promotions. Id. at 4. The Agency concluded that as no evidence had been submitted regarding, and the Agency was unaware of, the existence of any authorization for the granting of veterans preference in promotions, the Agency had no authority to afford the grievant preference for advancement purposes. Finally, the Agency asserted that the grievant did receive appropriate consideration for the announced Budget Analyst position and she was not selected. Accordingly, the Agency denied the grievance at the third step of the grievance procedure.

Another meeting was held between an Agency representative and the grievant and her Union representative at which the Union and grievant provided additional documentation to the Agency. Thereafter, the Agency forwarded a memorandum to the grievant advising her that all the documentation that had been provided, as well as the referral list for the Budget Analyst position had been reviewed. The Agency stated that it had "concluded that the Affirmative Action Program . . . properly carried out the requirements stated in the United States Code. The law stipulates that disabled veterans are given certain preferences when hired. Disabled veterans are not given preference for promotions. Instead, affirmative action is required to assist disabled veterans in job advancement." Id. at 6 (quoting Agency's memorandum). The Agency reiterated that it was abiding by the requirements of the Agency's DVAAP. Based upon the foregoing, the grievance and the corrective action requested were denied by the Agency.

In the apparent absence of a stipulation by the parties as to the issue to be decided by the Arbitrator, the Arbitrator concluded that "the basic question or issue appears . . . to be whether or not disabled veterans and Vietnam [e]ra veterans who are given certain preferences when they are employed should be given those same preferences when they seek promotions after their employment." Id. at 7.

The Arbitrator noted that it was the Union's position that such preference should be given and that it was the Agency's position that disabled and Vietnam era veterans are not given preference for promotions, but that affirmative action is required to assist such veterans in job advancement. The Arbitrator further noted that the Union contended that the Agency had not engaged in affirmative action efforts to assist veterans in getting promotions and that the Union had argued that as military spouses are given preference in promotions, disabled or Vietnam era veterans should be given a preference at least equal to that accorded those spouses.

The Arbitrator pointed to and summarized the research he had performed with respect to the matter and noted that he did not "find any reference either in statute or regulation which purports to give a preference to a veteran, disabled veteran or Vietnam [e]ra veteran in seeking a promotion to a higher[-]rated job . . . ." Id. at 8. Accordingly, the Arbitrator stated that he "must therefore rule against the grievant and the Union as to the basic question raised by this arbitration to-wit: that a veteran should be given the same preferences when they seek promotions as they are given when they initially seek a job with a [F]ederal Agency." Id. at 10.

The Arbitrator then proceeded to discuss other avenues of appeal that might be available to the grievant. He suggested that she could file a complaint with the Local Veterans Employment Representatives and Disabled Veterans Outreach Program Specialists complaining of any perceived failure by the Agency "to implement veterans preference or to give priority or to provide other special consideration as required by law or regulation" and that the grievant's complaint would thereby "follow the requirements of first exhausting her administration [sic] procedures prior to resorting to arbitration or other forms of relief." Id. at 11.

III. Exceptions

The Union contends that the Arbitrator's award is contrary to law, specifically, Title 38 of the United States Code. The Union asserts that the award is deficient because the Arbitrator "misapplied the law, in that he did not consider 'advancement' and 'promotion' as being synonymous." Exceptions at 1. The Union further argues that the award is contrary to Title 38 because the Arbitrator did not address the evidence that the Agency's DVAAP was "ineffective and inaccurate" in that it provides that disabled veterans will be given "equitable consideration" which "can in no way be considered [a]ffirmative [a]ction." Id. at 2.

The Union also maintains that although the "Arbitrator elaborated at great length on the fact that 'preference in promotion' is not required by law or regulation[,] [t]his elaboration is contrary to the basis of the grievance. In the grievance, it was stated that . . . '[the grievant] was not afforded job advancement, as Title 38 U[nited] S[tates] Code clearly states . . . .'" Id. (emphasis in original).

Finally, the Union takes issue with the Arbitrator's suggestion that the grievant resort to procedures other than the contractual grievance procedures to pursue her complaints further. The Union maintains that any applicable procedural time limits would likely have expired and "the only avenue available for resolving this type [of] matter is the [n]egotiated [g]rievance [p]rocedure, since there are no other procedures available in any other regulations." Id. at 2-3.

IV. Analysis and Conclusions

In American Federation of Government Employees, Local 12 and U.S. Department of Labor, 38 FLRA No. 126 (1991) (DOL), we recently examined whether Title 38, particularly 38 U.S.C. º 2014 relating to employment within the Federal Government, required the selection of qualified disabled veterans for promotion. After careful consideration and thorough analysis, we concluded that there was not "any judicial or other precedent interpreting either 38 U.S.C. º 2014 or 29 U.S.C. º 791(b) [incorporated in 38 U.S.C. º 2014 by reference] as requiring the selection of disabled veterans for promotion." DOL, slip op. at 14. We found no support for the proposition that, by law, a Federal agency is required to give preference to or select disabled veterans for competitive promotions in situations where, as here, there is no allegation that those veterans were denied equal opportunity to compete for the promotions and no contention that the Agency's affirmative action plan requires such preference or selection. Id. at 15.

Based upon the foregoing, it is clear that the Arbitrator's finding that the grievant was not entitled to preference in promotions is not contrary to Title 38. Accordingly, the Union's exception does not establish that the Arbitrator's award is contrary to law. In this regard, as noted earlier, the Agency's affirmative action plan does not require preference or selection in promotions, but rather requires that candidates receive equitable consideration. In addition, despite the Union's assertion that the Arbitrator demonstrated a misunderstanding of the basis of the grievance, when he elaborated on preference in selection as opposed to the job advancement allegedly required under 38 U.S.C. º 2014, the Union itself argues that the terms "advancement" and "promotion" must be viewed as synonymous. Moreover, as the parties did not stipulate the issue to be resolved in arbitration, the Arbitrator framed the issue as encompassing only the Agency's obligation to give preference to certain veterans when they seek promotions. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. For example, Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 832 (1990).

Further, to the extent that the Union contends that the award is contrary to law because the Arbitrator failed to find that the Agency's DVAAP does not meet the criteria established under law and regulation, that contention is also without merit. The Authority has held that although, under 38 U.S.C. º 2014(c), agencies are required to develop affirmative action plans for the hiring, placement and advancement of handicapped individuals, the content of those plans is not specified. Further, although law and regulation impose a duty upon Federal agencies to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion, the types of affirmative action that would comply with the requirement are not specifically prescribed. DOL, slip op. at 12-14. Accordingly, contrary to the Union's assertion, there is no basis upon which to find that the Agency's affirmative action plan, which requires that disabled veterans receive equitable consideration for advancement opportunities, is "ineffective and inaccurate" and cannot "be considered affirmative action" under law and regulation.

Finally, we construe the Union's arguments disputing the Arbitrator's suggestion regarding resort to other administrative procedures as contentions that the award fails to draw its essence from the parties' agreement and that it is based on a nonfact. To demonstrate that an award is deficient because it fails to draw its essence from the agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 933 (1990).

The Union has not demonstrated that the award is deficient under any of these tests. The Arbitrator specifically addressed, and rejected, the Union's arguments with respect to the grievance in the context of the parties' collective bargaining agreement, the record before him and applicable law and regulation. Although, after ruling upon the issue before him, the Arbitrator suggested another possible recourse for the grievant, nothing in the award shows that the Arbitrator, in reaching his award, relied on his belief that other remedies might be available to the grievant. There is, therefore, no basis in which to conclude that the award fails to draw its essence from the agreement.

In order for an award to be found deficient on the ground that it is based on a nonfact, a party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Air Force, Air Logistics Center, McClellan Air Force Base, Sacramento, California and International Federation of Professional and Technical Engineers, Local 330, 37 FLRA 1071, 1075 (1990). In this case we need not reach a determination as to whether the Arbitrator was correct in his description of the alternative administrative remedies available to the grievant because, as noted above, the Arbitrator did not rely on the asserted availability of such remedies in making his award. Accordingly, the Union has not demonstrated that the award is based on a nonfact.

In summary, the Union's exceptions fail to establish that the award is deficient and we will, therefore, deny the exceptions.

V. Decision

The Union's exceptions are denied.

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

*/ Member Armendariz has recused himself from participation in the resolution of this case because he is a life member of the Disabled American Veterans.