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44:1080(86)AR - - Army, HQ, XVII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1992 FLRAdec AR - - v44 p1080

[ v44 p1080 ]
The decision of the Authority follows:

44 FLRA No. 86











LOCAL 1770




April 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Bruce R. Boals 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's opposition to the Union's exception was untimely filed and will not be considered.

The Arbitrator sustained a grievance filed on behalf of four grievants contesting the filling of a position noncompetitively. As a remedy, the Arbitrator directed the Agency to give priority consideration to one grievant. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

As the result of an audit of the Agency's Engineering Resource Management Division, a GS-9 position was created. The GS-9 position was awarded to an employee noncompetitively in settlement of two unfair labor practice charges. A grievance was filed on behalf of four grievants contending that the GS-9 position should have been filled competitively in accordance with Section 4-4 c.(5)(a) of the Agency's Recruitment and Placement Plan (the plan).(1) When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as follows:

Was the Recruitment and Placement Plan, paragraph 4-4 C[.](5) violated in the noncompetitive promotion of [the selectee]? If so, what should the remedy be?

Award at 2 (underscoring in original).

First, the Arbitrator determined that the plan was applicable to the filling of the GS-9 position. The Arbitrator noted that the plan is a "negotiated document" that is part of the collective bargaining agreement. Id. at 10. Further, according to the Arbitrator, Article II, Section 3 of the parties' agreement provides that the plan has "'the full force and effect of regulations within[] the bargaining units to which it applies and will take precedence over local policy issuances affecting bargaining unit employees.'" Id.

Next, the Arbitrator rejected the Agency's claim that Sections 4-4 a.(4) and (5)(2) of the plan permitted the Agency to fill the disputed position noncompetitively. The Arbitrator found that, as the position was created by adding duties and responsibilities to an existing GS-7 position, Section 4-4c.(5) of the plan prohibited the noncompetitive placement in this case.

The Arbitrator concluded that although all four grievants were denied proper consideration by the Agency's action, only one grievant was qualified for the position. Therefore, as a remedy, the Arbitrator awarded that grievant "priority consideration for the next appropriate vacancy." Id. at 13.

III. Union's Exception

The Union argues that the Arbitrator's award granting priority consideration to only one grievant is based on a nonfact. According to the Union, there was "insufficient evidence" for the Arbitrator to conclude that the other grievants were not qualified. Exception at 5. The Union asserts that, "[s]ince all grievants failed to receive proper consideration, all grievants are entitled to [p]riority [c]onsideration." Id. at 6 (underscoring in original).

IV. Analysis and Conclusions

To establish that an award is based on a nonfact, the party making the allegation must demonstrate 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, U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and NTEU Chapter 168, 43 FLRA 337, 342-43 (1991).

The Union has not demonstrated that the Arbitrator's failure to award priority consideration to three of the four grievants is based on a central fact that is clearly erroneous. The Arbitrator based his award on the record before him and found that although the three grievants were denied proper consideration by the Agency's action, they were not qualified for the position. The Union's claim to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his findings based thereon. Such disagreement provides no basis for finding an award deficient. See id.

V. Decision

The Union's exception is denied.

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

1. Section 4-4 (c) of the plan provides, in relevant part:

c. Actions Excluded at Management's Option. The following types of actions may be taken without regard to the competitive procedures of this plan.

. . . .

(5) Promotion resulting from an employee's position being reclassified at a higher grade because of additional duties and responsibilities. Such promotion, however, may only be effected noncompetitively if:

(a) There are no other employees at the same grade in the unit supervised by the selecting official who are performing duties substantially the same as those performed by the employee prior to addition of the new duties and responsibilities[.]

Award at 7.

2. Sections 4-4 a.(4) and (5) of the plan provide, in relevant part:

a. Mandatory Placement Actions. When a vacancy arises for which a registrant in any of the programs listed in (1) through (4) below is qualified and available, that registrant will be offered the position, barring any exceptions allowed by law and approved by the Civilian Personnel Officer. In situation (5) below, the incumbent will be promoted non-competitively, provided that legal and qualification requirements are met.

. . . .

(4) Placement of an individual directed by appropriate authority, provided that the

placement does not violate established law or regulation. Such placements might be directed by OPM, EEOC, the courts, an arbitrator (subject to appropriate review of an arbitrator's decision) or MSPB.

(5) Promotion to positions upgraded without significant changes in duties and responsibilities on the basis of either a new classification standard or the correction of a classification error.

Award at 6.