45:1045(106)AR - - NFFE Local 1636 and DOD, NG Bureau, NM NG, Albuquerque, NM - - 1992 FLRAdec AR - - v45 p1045

[ v45 p1045 ]
The decision of the Authority follows:

45 FLRA No. 106




LOCAL 1636










September 3, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James B. Giles filed by the National Federation of Federal Employees on behalf of 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.

The Union filed a grievance on behalf of an unsuccessful applicant for a position asserting that the Agency had improperly selected another employee for the position. The Arbitrator denied the grievance.

For the following reasons, we find that the exceptions fail to establish that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency posted a vacancy announcement and filled the position with an employee other than the grievant. The grievance alleged that the selected employee was pre-selected and was "unqualified" for the position. Award at 1. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator framed the issues before him as follows:

(1) Was [the selected employee] "Best Qualified" for Job Announcement #91-1019? and (2) was the selection . . . a "Wrongful Pre-selection"?


The Arbitrator first addressed the Union's contention that the selected employee was not qualified for the vacant position. The Arbitrator observed that when the grievance was filed in this case, the grievant maintained that the selected employee was "unqualified for the position . . . ." Id. at 2. The Arbitrator also noted that, during the arbitration proceeding, the Union maintained that the selected employee was not the "[b]est [q]ualified" candidate or as qualified as the grievant for the vacant position. Id. at 3. The Arbitrator found, however, based on Agency testimony and documentary evidence, that "it became evident that [the selected employee] was unusually well qualified for the position to which he had been promoted." Id.

The Arbitrator then addressed the Union's argument regarding the wrongful pre-selection. The Arbitrator noted the Union's assertion that the selecting official "was well known for playing favorites rather than making personnel decisions on the basis of merit[,]" as well as the Union's criticism of the selecting official "for his practice of 'recruiting in advance' of an opening" or before a vacancy is announced. Id. at 3. The Arbitrator found, however, that the Agency's testimony "drew a convincing distinction" between the selecting official's action in making the disputed selection and an improper pre-selection. Id.

In sum, the Arbitrator denied the grievance on the ground that there was insufficient evidence in the record to support the Union's allegations. The Arbitrator concluded that the grievance "cannot be upheld in [the] absence of solid evidence to support the charges." Id. at 4.

III. Union's First Exception

The Union claims that the Arbitrator misstated the facts, set forth "a Union position that is contrary to the written issue of record, and ignore[d] the record." Exceptions at 1. More specifically, the Union argues that the Arbitrator made inconsistent statements with respect to the issues in dispute and misstated the Union's position on those issues. The Union asserts that the Arbitrator stated that the Union had taken the position that the selected employee was not qualified for the vacant position when, in fact, the Union's position was that the selected employee was not as qualified as the grievant and should not have been ranked and rated with employees who were highly qualified for the position. The Union states that its position "was that the selectee was basically qualified as far as the position was concerned but not qualified on the restrictions of the dual military position." Id. at 2.1/ The Union also argues that although the Arbitrator addressed the issue of pre-selection, he ignored other issues, including "basic qualification and procedural issues." Id. at 4.

First, we reject the Union's argument that the Arbitrator ignored certain issues. The issues before the Arbitrator were whether the selected employee was the best qualified candidate and whether that employee had been wrongfully pre-selected. The Arbitrator expressly addressed these issues. Consequently, the Union's argument provides no basis for finding the award deficient. See generally U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1049 (1991) (an arbitrator's failure to specify and discuss all allegations in a grievance does not provide a basis for finding an award deficient).

Next, we construe the Union's additional contentions that the Arbitrator misstated the issues and the Union's position with respect to those issues as an allegation that the award is based on nonfacts. For the following reasons, we conclude that the Union fails to establish that the award is deficient on this basis.

We will find an arbitration award deficient because it is based on a nonfact when the party making such a claim establishes that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435 (1991).

In identifying the issues in this case, the Arbitrator set forth both the grievant's position that the selected employee was not qualified, as well as the Union's position that the selected employee was not the best qualified candidate or as qualified as the grievant for the positio