46:0881(78)AR - - Agriculture, Farmers Home Administration, Finance Office, St. Louis, MO and AFGE Local 3354 - - 1992 FLRAdec AR - - v46 p881

[ v46 p881 ]
The decision of the Authority follows:

46 FLRA No. 78










LOCAL 3354




December 4, 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 P. O'Grady 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 exceptions.

The Arbitrator denied a grievance over the Agency's failure to select the grievant for a promotion. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

A grievance was filed alleging that the Agency had violated the parties' agreement, law and regulation, including 5 U.S.C. §§ 2301 and 2302, and Federal Personnel Manual (FPM) Chapter 335 when it failed to select the grievant for a promotion to the position of Computer Programmer/Analyst Team Leader, GS-334-12. The grievance was not resolved and was submitted to arbitration.

The parties were unable to stipulate to the issues before the Arbitrator. The Union sought to amend the grievance to include a challenge to the promotion panel's rating and ranking of the selected employee. The Arbitrator framed the issues before him as follows:

1. If the grievance was amendable, should the Selectee have made the "Best Qualified List" for the promotion?

2. If so, did the Section Head, who was the selecting official, or the Chief-Development Branch, who was the reviewing official, violate the law, [A]gency regulations, or the Agreement in their selection?

3. If so, would the Grievant have been selected for the position, "but for" the violation?

4. If so, what relief should the Grievant now receive?

Award at 2.

On the procedural issue of whether the Union could amend the grievance, the Arbitrator found that the parties' agreement did not prohibit the Union's amendment. Consequently, he allowed the amendment.

The Union contended before the Arbitrator that the promotion panel had rated and ranked the selected employee in a manner that was not based on the established evaluation criteria, in violation of the parties' agreement and various Agency regulations. Specifically, the Union challenged two of the "Knowledge, Skills and Ability" (KSA) ratings assigned to the selected employee by the promotion panel. KSA No. 1 concerns the ability, based on experience and/or education, of an applicant to analyze and design new computer systems and/or major revisions to existing computer systems. KSA No. 5 involves the ability of the applicant to plan and lead project or team activities. The Union argued that the selected employee's ratings of level 3 (Satisfactory) on KSA No. 1 and level 5 (Outstanding) on KSA No. 5 were too high, and, that if the proper ratings had been given, the Agency would not have placed the selected employee on the best qualified list. To receive a level 3 rating on KSA No. 1, an applicant must show a minimum of 4 years of specific on-the-job experience, or show equivalent experience, such as 3 years of on-the-job experience and an Associate Degree with a Computer Science major. To receive a level 5 rating on KSA No. 5, an applicant must show experience serving as a supervisor, team or project leader and planning such processes as work plans, resource estimates, or project milestones. This experience must have been consistent or recurring.

The Union further contended that even if the selected employee was properly on the best qualified list, the section head committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(11) and violated the portion of the parties' agreement implementing the merit system principles contained in 5 U.S.C. § 2301 in choosing the selected employee over the grievant. The Union maintained that, but for the Agency's violations of law, rule, regulation, and the parties' agreement, the grievant would have been selected for the position.

The Agency contended before the Arbitrator that the promotion panel did not err in rating and ranking the selected employee. The Agency also contended that: (1) the grievant made a fundamental error in completing his application; (2) the Agency's management officials did not unlawfully discriminate in the selection action; (3) the selection of the employee was based on interview results; and (3) because there was no evidence to support a finding of discrimination, the "'but for'" consideration would be largely "retroactive speculation." Award at 10.

The Arbitrator found, with regard to the level 3 rating on KSA No. 1, that the 30-day grace period used by the panel to extend the selected employee's years of experience was proper. The Arbitrator concluded that the combination of the selected employee's work experience and his education clearly warranted a level 3 rating. As to the level 5 rating on KSA No. 5, the Arbitrator found that with regard to the job-related experience of planning projects, the selected employee had only "'used a work plan'" but had not "specifically planned or developed it." Award at 12. Based on this finding, the Arbitrator stated that the panel rating of the selected employee was "questionable when compared to that of the [g]rievant." Id. However, the Arbitrator concluded that the selected employee merited placement on the best qualified list.

The Arbitrator also found that: (1) the evidence did not establish that the section head failed to afford the grievant fair and equitable consideration; (2) the Union had not demonstrated that there was impropriety in the selection process in violation of the agreement; (3) there was no support for the allegation of illegal discrimination in the selection action; and (4) the grievant "would not have been selected for the position, 'but for' the alleged violation[.]" Id. at 24.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is contrary to 5 C.F.R. § 300.103(a).(1) The Union argues that although the KSA rating guide used in the merit promotion action was properly developed by a job analysis task force, the Arbitrator improperly constructed a measurement device that allowed a 30-day grace period when calculating the selected employee's years of experience under KSA No. 1. The Union contends that because the award permits the Agency to allow credit for experience and education not shown to be job-related, the award is deficient. The Union cites U.S. Air Force, 1947 Support Group and AFGE-GAIU, Council of Headquarters, USAF Locals, AFL-CIO, 20 FLRA 444 (1985) (U.S. Air Force), where the Authority held that arbitrators cannot modify crediting plans ex post facto.

The Union argues that there is no 30-day grace period in any Government-wide or Agency regulation that applies to the evaluation by a promotion panel for the purpose of determining the best qualified applicants. The Union argues that in permitting a 30-day grace period the Agency relied on a regulation that established requirements for accepting applications, and maintains that there is no such language in the Agency's regulation addressing the evaluation of basically qualified candidates and the promotion panel rating process. The Union further contends that it was improper to credit the selected employee's diploma from an unaccredited institution as being equivalent to an Associate Degree with a major in computer science, which the rating guide establishes as a criterion for the position.

In its second exception the Union contends that the award does not draw its essence from the parties' agreement. The Union challenges the Arbitrator's finding that the promotion panel properly rated the selected employee at the level 5 on KSA No. 5.

The Union notes that the Arbitrator found that the selected employee had not specifically planned or developed projects. Therefore, the Union asserts that the Arbitrator determined that the selected employee did not have the requisite experience for a level 5 rating on KSA No. 5. The Union argues that if the selected employee had been properly rated on KSA No. 5, he would not have been placed on the best qualified list. The Union argues that the Arbitrator's failure to modify the selected employee's rating violated the regulatory requirement, which is implemented through the parties' agreement, that a promotion panel's rating be "'based on established criteria . . . .'" Exceptions at 8. The Union contends, therefore, that the Arbitrator's determination that the selected employee should have been on the best qualified list, in spite of his finding that the selected employee lacked the experience required for the level 5 rating, evidences "a manifest disregard of the agreement[.]" Id.

B. Agency's Opposition

The Agency contends that the Union's exceptions constitute nothing more than mere disagreement with the Arbitrator's award.

IV. Analysis and Conclusions

We conclude that Union has failed to establish that the award is deficient either because the award is contrary to 5 C.F.R. § 300.103(a) or the parties' agreement.

In The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA 946 (1985) (Montana Air National Guard), the Authority adopted the decision of the United States Court of Appeals for the District of Columbia Circuit in Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985), and held that the disputed provision in that case, which assigned points for crediting plan purposes solely on the basis of seniority, was inconsistent with 5 C.F.R. § 300.103(a). The Authority found that section 300.103(a) required that crediting plans be derived from a prior job analysis, and that the union had not demonstrated that any job analysis had been conducted that linked seniority to success in the particular positions in question. Based on Montana Air National Guard, in U.S. Air Force the Authority modified an arbitrator's award directing that a grievant be given credit for a particular job experience even though the arbitrator had acknowledged that the credited experience did not conform to the requirements of the agency's crediting plan. The Authority found the award deficient because neither the award nor the record indicated that the measurement device used by the arbitrator in crediting the grievant with such experience was based on a preliminary job analysis.

In this case, the Union concedes that the KSA rating guide used in the merit promotion action was properly developed by a prior job analysis as required by 5 U.S.C. § 300.103(a). The Union contends, however, that the rating guide was improperly applied to determine the selected employee's qualifications under KSA Nos. 1 and 5. We disagree.

We find that the Union has not established that the use of a 30-day grace period for computing experience gained in a qualifying classification series was improper. As conceded by the Union, an Agency regulation permits a 30-day grace period when establishing a candidate's eligibility for consideration.(2) Further, an Agency regulation also provides a 30-day grace period in the evaluation of employees for promotion and internal placement.(3) Moreover, pursuant to Exhibit D of the Agency's Instruction 2045-C at 1.k., all vacancy announcements must include a statement informing applicants of the qualifications for eligibility, subject to a 30-day grace period. It would be anomalous indeed if the Agency could not, in establishing a best qualified list, use the same standards that it announces to applicants and uses in determining basic qualifications. Further, the Union cites no regulation, and none is apparent to us, that would prohibit the use of such a 30-day grace period in the calculating of qualifying experience for such purposes. Consequently, the Union has failed to establish that the use by the promotion panel of a 30-day grace period in order to credit the selected employee with 3 years of qualifying experience is inconsistent with any Government-wide or Agency rule or regulation.

We further find that the Union has not established that the determination that the selected employee's education was equivalent to an Associate Degree was improper. First, contrary to the Union's contention, the promotion panel considered both college credits the selected employee earned at an accredited institution and the diploma from the unaccredited institution when it rated the educational experience of the selected employee as equivalent to an Associate Degree. See Union's Brief to the Arbitrator at 11. Further, the Office of Personnel Management (OPM) guidance to agencies on "Application of Qualification Standards" allows the consideration in the ranking process of unaccredited training.(4) Consequently, we conclude