46:1518(145)AR - - AFGE Council 215, National Council of SSA and HHS, SSA, Office of Hearings and Appeals - - 1993 FLRAdec AR - - v46 p1518
[ v46 p1518 ]
The decision of the Authority follows:
46 FLRA No. 145
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
February 26, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Henry L. Segal 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 found that the Agency violated the parties' collective bargaining agreement by failing to notify the Union and bargain over the impact and implementation of changes to the factors and weights(*) used in a selection action. As a remedy, the Arbitrator ordered the Agency to notify the Union of any proposed factors and weights or any proposed changes in factors and weights and to bargain over their impact and implementation. 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 contesting the factors and weights used in the selection process to fill two Social Security Insurance Policy Analyst positions for which merit promotion Vacancy Announcement No. OHA 90-22 was posted. The factors and weights are used to determine the qualifications of applicants and to rank them in order to arrive at a best qualified list. When the parties could not resolve the dispute, it was submitted to arbitration.
The Arbitrator determined that the case involved the following issues: (1) was the grievance timely filed and, therefore, arbitrable on its merits; (2) was the Agency obligated under the parties' agreement to notify the Union of proposed changes in the factors and weights for the above-noted positions and to bargain over such changes; (3) was there was a binding past practice of not notifying the Union and bargaining over proposed changes in factors and weights; (4) if there was a duty to bargain, did it extend to the content of the factors and weights or only to the impact and implementation of the changes; (5) whether use of the revised factors and weights was improper in view of the temporary suspension of performance standards for Agency employees; and (6) if the Agency did not meet its duty to bargain, or if it committed other violations in the selection process, what is an appropriate remedy.
First, the Arbitrator found that the grievance was timely filed. In reaching this result, the Arbitrator examined relevant portions of the parties' agreement and correspondence between the parties. He found that under the agreement, grievances could be filed within 25 work days after the Union became aware of a particular act or occurrence or at anytime if a continuing practice was involved. The Arbitrator noted the Union's assertion that it became aware of the revised factors and weights on January 15, 1991, just prior to the filing of the grievance on January 18, 1991. Accordingly, the Arbitrator found that the grievance was timely filed either as a continuing practice or on the basis of a particular act or occurrence. Having concluded that the grievance was timely filed, the Arbitrator found that the grievance was arbitrable.
On the merits, the Arbitrator addressed whether the Agency was required to bargain over the content of the factors and weights or only as to their impact and implementation. The Arbitrator found that bargaining over the content of the factors and weights was prohibited by the Statute relying, in part, on Department of the Interior, Washington, D.C. and Bureau of Reclamation, Lower Colorado Dams Project, Boulder City, Nevada, 26 FLRA 832 (1987). Instead, the Arbitrator concluded that the Agency's obligation was limited to giving notice of the proposed factors and weights and to bargaining over their impact and implementation. The Agency conceded that it had not given the Union notice of the proposed changes in the factors and weights, but claimed that it was not required to do so based on the existence of a past practice and the Union's knowledge of the revised factors and weights. The Arbitrator concluded that the Agency had not met its burden of establishing that the Union waived its rights to bargain over the changes under the parties' agreement or that a past practice existed of not giving the Union notice of proposed changes to the factors and weights. In fact, the Arbitrator found that, although there were many vacancies posted over the course of several years, there was no evidence that a meaningful number of the factors and weights used were either new or revised, such that Union officials knew or should have known about them in order to request bargaining.
Next, the Arbitrator considered the Union's contention that the temporary suspension of performance plans rendered the use of the revised factors and weights illegal. The Arbitrator found that the factors and weights were created before the plan was suspended and that there was only one change to a numeric performance goal after the suspension was lifted. The Arbitrator also noted that the Generic Job Tasks and the weights used in the selection process were not changed "so the factors and weights should not have been affected by the temporary suspension[.]" Award at 13.
In determining an appropriate remedy for the Agency's failure to provide notice and to bargain with the Union, the Arbitrator stated that, in general, the Union sought:
a status quo ante remedy, including an order vacating the two selections, an order to bargain over the factors and weights, an order giving the employees not promoted or given proper consideration to be considered for the vacated positions before new applicants, and an order granting a back pay remedy to all employees who suffered any loss because of the illegal promotion process.
Id. at 13-14.
The Arbitrator rejected the requested remedy. The Arbitrator found that such a remedy might have been appropriate if bargaining over the substance of the factors and weights had been appropriate. However, because bargaining was limited to impact and implementation, the Arbitrator concluded that the relief was "too extreme and inappropriate . . . ." Id. at 13. More particularly as to the status quo ante remedy, the Arbitrator distinguished this case from Authority precedent relied on by the Union. The Arbitrator noted, in part, that where status quo ante remedies had been ordered, aggrieved employees clearly could be identified and agencies were not required to follow precise rules or procedures. In contrast, the Arbitrator found that there were no aggrieved employees in this case and that pursuant to the negotiated merit promotion system, the Agency was required to follow precise rules and procedures in promotion actions, which "leav[e] little room for negotiating procedures." Id. at 15. The Arbitrator also concluded that the Union's assertion that Federal Personnel Manual (FPM), chapter 335, appendix A-4 supported a status quo ante remedy was misplaced because the corrective actions specified in the FPM apply to aggrieved employees and no such employees were identified in the present case.
The Arbitrator also rejected the request to vacate the selections because there was no showing that the selections would not have been made but for the misapplication of the selection process. In this regard, the Arbitrator noted that the best qualified list was properly established, that the successful candidates were properly selected from the list, and, generally, that there was no showing of any improper application of either the factors and weights or the total selection process.
Finally, the Arbitrator found that the scope of any retroactive impact and implementation bargaining would be limited because there was little about which the parties could bargain. In this connection, the Arbitrator noted that there are detailed procedures set out in the merit promotion provision of the parties' agreement and the "National Merit Promotion plan which is an elaboration of" the agreement that must be followed in promotion actions. Award at 15. Nevertheless, in order to prevent future violations, the Arbitrator directed the Agency to notify the Union of any proposed new factors and weights or any proposed changes in factors and weights and to bargain over their impact and implementation.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to law, rule, and regulation and is deficient on grounds similar to those applied by Federal Courts in private sector labor relations cases. The Union further claims that the award "does not draw a remedial finding from the Agreement and/or case law." Exceptions at 1.
More specifically, the Union asserts that the Arbitrator's failure to order a status quo ante remedy is contrary to sections 7102(2), 7106(b)(2) and (3), 7114(a)(1) and (4), and 7114(b)(1), (2) and (3) of the Statute. In support, the Union cites Federal Correctional Institution, 8 FLRA 604 (1982) (FCI). The Union also asserts that the parties' agreement requires a status quo ante remedy and that "the Federal Personnel Manual (Chapter 335-A-4) clearly implies the same." Exceptions at 2.
The Union further claims that although he found violations of the Statute and the agreement, the Arbitrator erroneously concluded that no employee was harmed. The Union also asserts that the Arbitrator improperly considered the Agency's National Merit Promotion Plan. The Union maintains that the Plan was not at issue in this case and that the Arbitrator's use of it to justify his conclusion violates the parties' agreement, which it claims sets forth all matters pertaining to the merit promotion system applicable to the bargaining unit.
In addition, the Union contests the Arbitrator's finding as to the negotiability of the factors and weights. The Union contends that only the Authority can resolve negotiability issues and that the Arbitrator's ruling violates the Statute.
Finally, the Union requests that the Authority vacate the award and remand the case with instructions for the Agency to bargain over the factors and weights. The Union also requests the Authority to issue a decision granting a status quo ante remedy.
B. Agency's Opposition
Initially, the Agency disputes the Union's contention that the award violates various sections of the Statute in light of the Arbitrator's finding that the Union had a right to bargain over the impact and implementation of the changes in the factors and weights and his award of a prospective bargaining order. The Agency also disputes the Union's argument that the Agency failed to bargain in good faith insofar as no bargaining occurred "good faith or otherwise." Opposition at 3.
Next, the Agency contends that the Arbitrator properly considered the criteria for a status quo ante remedy, set forth in FCI, in determining that no such remedy was warranted here. The Agency also claims that the parties' agreement does not address status quo ante remedies and that the Union has misrepresented the FPM requirements regarding corrective actions. The Agency also maintains, contrary to the Union, that the Arbitrator did not make an independent negotiability determination. Instead, the Agency argues that the Arbitrator applied Authority precedent, as well as the parties' agreement, in addressing the negotiability of the factors and weights. Finally, the Agency claims that while the Arbitrator's consideration of the Merit Promotion Plan was appropriate, it "played only a very minor role in the case." Opposition at 5.
IV. Analysis and Conclusions
For the following reasons, we find that the Union has failed to establish that the award is deficient. Consequently, we will deny the exceptions.
First, we reject the Union's contention that the Arbitrator's failure to order a status quo ante remedy is contrary to the Statute, is required by the parties' agreement, or is implicitly required by provisions contained in the FPM. The Union's claim that the award is contrary to sections 7102(2), 7106(b)(2) and (3), 7114(a)(1) and (4), and 7114(b)(1), (2) and (3) of the Statute is unfounded. Those sections do not address status quo ante remedies but generally concern the right of employees to engage in collective bargaining through a union; the obligation to bargain over procedures and appropriate arrangements, i.e., impact and implementation; and the right of unions to represent employees and to meet with management for the purpose of negotiating collective bargaining agreements. Nothing in those sections of the Statute or any other section requires a status quo ante remedy in the circumstances of this case. In addition, nothing contained in FCI, which addresses the issuance of status quo ante remedies for refusals to bargain over impact and implementation matters under the Statute, compelled the issuance of a status quo ante remedy here, where the Arbitrator found a violation of the parties' agreement.
Next, we construe the Union's argument that the award fails to "draw a remedial finding from the Agreement" as an assertion that the award fails to draw its essence from