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46:0550(52)AR - - GSA, Region 6, Kansas City, MO and AFGE Council 236 - - 1992 FLRAdec AR - - v46 p550

[ v46 p550 ]
The decision of the Authority follows:

46 FLRA No. 52













November 17, 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 P. M. Williams 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 filed an opposition to the Union's exception.

The Arbitrator found that the Agency violated both its Merit Promotion Plan (MPP) and the parties' national agreement in the selection process for the position of criminal investigator. However, the Arbitrator concluded that he was not authorized, under the national agreement, to grant a status quo ante remedy, as requested by the Union. Accordingly, the Arbitrator sustained the grievance in part and denied it in part.

For the following reasons, we conclude that the Union has not demonstrated that the award is deficient, and we will deny the Union's exception.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the Agency violated the MPP and the parties' national agreement when it selected the person it promoted to the position of criminal investigator. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated the issue before him as follows:

Did the [Agency] violate the Merit Promotion Plan and/or the National Agreement, or both, in the course of the selection process that it used in the filling of the criminal investigator position that occurred on June 7, 1991, and if so, what is the proper remedy?

Award at 4.

Before the Arbitrator, the Union contended that the Agency: (1) violated the merit staffing provision of the parties' national agreement in its selection of a criminal investigator; (2) failed to fairly and equitably consider all of the applicants for the position; and (3) violated law and regulation when the selecting official failed to interview two of the applicants for the position. The Union also claimed that the selection procedure was flawed because, without informing the Union, the Agency had changed its practice of having a three-person panel interview the applicants. As a remedy, the Union requested that the Arbitrator direct the Agency to remove the selectee from the position, to comply with the MPP in the future selection action, and to make the new selectee whole for earnings that would have been received but for the improper selection.

The Agency contended that it had followed the MPP in the selection because the selectee was on the list of the best qualified candidates for the position. It also claimed that the selecting official interviewed all of the candidates who were available and that panel interviews of applicants were not required. The Agency argued that the two applicants who had not been interviewed had failed to leave their telephone number with a supervisor when they went on authorized military leave. The Agency contended that if the grievance were sustained, the appropriate remedy should be consistent with Article 18, section 6 of the parties' agreement.(*/)

The Arbitrator found that the selecting official had violated provisions of the national agreement by failing to interview two of the applicants, and that "he fatally flawed the selection process as to these grievants[.]" Award at 7. Concluding that "the grievants were not given proper consideration in the selection process and that their lack of proper consideration was the result of a procedural violation[,]" the Arbitrator found that the Agency had violated both the MPP and the national agreement. Id.

The Arbitrator further concluded that

Article 18, § 6 is dispositive of the remedy situation in this case. I also believe I am powerless to deviate from what is provided there even though I am persuaded that a more appropriate remedy would be to return parties to the status quo ante before June 7, 1991, when the erroneous selection of [the selectee] was announced.


Accordingly, as a remedy the Arbitrator directed that the selection process for the position of criminal investigator be rerun to determine which of the grievants should receive advance consideration for the next vacancy for the position.

III. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator "underestimated his authority in granting us the relief he thought an appropriate remedy." Exception at 1. The Union states that the award "is very limited" and that there is only one criminal investigator position, which may not be vacated for many years. Id.

The Agency maintains that the Union has not established that the award is deficient in any regard and that the Union is merely disagreeing with the relief granted by the Arbitrator. The Agency also contends that the exception should be denied because it does not meet the requirements of section 2425.2(a), (b), and (e) of the Authority's Rules and Regulations.

IV. Analysis and Conclusions

A. Preliminary Matter

The Agency contends that the Union's exception should be denied because it fails to conform with the Authority's Rules and Regulations. Specifically, the Agency argues that the exception is deficient because it does not, as required by 5 C.F.R.§ 2425.2(a), (b), and (e), respectively, set forth: a statement of the grounds on which review is requested; evidence or rulings bearing on the issues before the Authority; and the name and address of the arbitrator.

We disagree that the exception is deficient in this regard. We find that by maintaining that the Arbitrator had the contractual authority to grant the relief it requested, the Union adequately has stated the grounds on which it seeks review of the award. Further, although the exception does not set forth any specific evidence or rulings to elucidate the issue before the Authority, we conclude that the exception is sufficiently clear for the Authority to understand the issue it presents.

Finally, although the Union failed to include the Arbitrator's address, as required by 5 C.F.R. § 2425.2(e), we note that the Authority's Order dated July 10, 1992, in which the Authority informed the Union that its exception was deficient in one regard, did not inform the Union that the exception was also deficient because it did not include the Arbitrator's address. In view of the fact that the Union did not have an opportunity to correct this deficiency and noting that the Authority was able to serve the Arbitrator with official documents, as is evidenced by the Statement of Service attached to the Notice of the Authority dated June 24, 1992, we will proceed to dispose of the case on its merits.

B. The Award Is Not Deficient

We construe the Union's argument that the Arbitrator "underestimated his authority" in formulating a remedy as an argument that the award does not draw its essence from the parties' agreement. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party alleging such failure must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (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 arbitrator's obligation; (3) evidences a manifest disregard for the agreement; (4) does not represent a plausible interpretation of the agreement. U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183, 1188 (1990).

The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the agreement under any of the above tests. The Arbitrator based his conclusion that he was not authorized to award a status quo ante remedy on his interpretation of the parties' national agreement, and specifically relied on Article 18, section 6 of that agreement. We have no basis on which to conclude that the Arbitrator's interpretation of that provision is implausible, irrational, or unconnected to the wording and purpose of the agreement. Rather, the Union's arguments constitute mere disagreement with the Arbitrator's interpretation and application of the agreement and, consequently, provide no basis for finding that the award does not draw its essence from the agreement. Id. at 1188-89.

V. Decision

The Union's exception is denied.

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

*/ Article 18, § 6 provides as follows:

Section 6. Advance Consideration Before Using Competitive Procedures

B. For Employees Not Given Proper Consideration.

An employee who was not given proper consideration due to a procedural violation or error in a previous competitive action must be given advance consideration for the next vacancy which becomes available in the same occupational family as the position denied. This means that the employee must be referred to the selecting official for consideration before using the competitive procedures. If selected on the basis of advanced consideration, the employee is promoted or reassigned non-competitively. If the employee refuses consideration, the employee forfeits his/her entitlement to the advance consideration.