50:0578(80)AR - - SSA, Mid-Atlantic Program Services Center and AFGE, Local 2006 - - 1995 FLRAdec AR - - v50 p578

[ v50 p578 ]
The decision of the Authority follows:

50 FLRA No. 80









LOCAL 2006





July 21, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Edward A. Pereles filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator ruled that the Agency violated the collective bargaining agreement by not selecting the grievant for a vacant position.

For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant applied for a vacant position for which she was the only applicant who exercised priority consideration.(2) The Agency, without any explanation, considered and rejected the grievant prior to receiving and making a selection from a list of best-qualified candidates.

A grievance was filed over the Agency's failure to select the grievant. The grievance was not resolved and was submitted to arbitration on the stipulated issue of whether the Agency had violated the parties' collective bargaining agreement in failing to select the grievant.

The Arbitrator found that the Agency's failure to select the grievant violated Article 26, Section 8 of the parties' agreement because the Agency had not given the grievant the "bona fide" consideration required by that priority consideration provision. Defining "bona fide" consideration as a "real, genuine effort (on the part of the Agency) not to exclude the employee from a vacancy for which the employee is minimally qualified[,]" the Arbitrator determined that the Agency had the burden to "try to select the employee exercising his/her priority consideration for the vacant position." Award at 12. The Arbitrator also found that the Agency violated the agreement by failing to provide the grievant a full, complete and well-reasoned explanation for the Agency's selection decision.

The Arbitrator concluded that the grievant met the minimum qualifications for the disputed position and that nothing in the grievant's personnel file supported the unit manager's statement to the selecting official that the grievant could not perform the duties of the position for which she had applied. Accordingly, the Arbitrator determined that but for the Agency's failure to give the grievant the "bona fide" consideration required by the parties' agreement, she would have been selected for the position in question. As his award, the Arbitrator ordered that the grievant be promoted to the next available vacancy for which she is qualified and which is appropriate--either the position for which she had applied, or one that the parties agree to substitute. In addition, the Arbitrator ordered the grievant to be made whole from the time she should have been promoted to the position for which she applied and was not selected.

III. Exceptions

A. Agency's Contentions

The Agency contends that the Arbitrator's award does not draw its essence from the parties' agreement because the Arbitrator misinterpreted the agreement by adding requirements not contained in the agreement. Specifically, the Agency contends that the Arbitrator added to the agreement the requirement that the Agency notify unsuccessful job applicants who have exercised priority consideration of the reasons for their nonselection. In addition, the Agency contends that the Arbitrator added to the agreement the requirement that the selecting official rely upon specific criteria in considering whether to select a candidate who has exercised priority consideration. According to the Agency, these criteria include whether the candidate meets the qualifications of the vacant job, and whether information in the candidate's personnel file supports management's negative comments to the selecting official.

The Agency also argues that the Arbitrator's award is contrary to law. Citing Association of Civilian Technicians and Pennsylvania National Guard, 30 FLRA 779 (1987) and American Federation of Government Employees, Local 3553, AFL-CIO and Veterans Administration Medical Center, New Orleans, Louisiana, 18 FLRA 486 (1985), the Agency asserts that the Arbitrator incorrectly determined that the grievant would have been selected but for the selecting official's failure to review her personnel record.

B. Union's Opposition

The Union contends that the Arbitrator properly interpreted the parties' agreement and correctly concluded that the Agency violated the agreement.

IV. Analysis and Conclusions

A. Essence of the Agreement

To demonstrate that an award fails to draw its essence from an agreement, the party making the allegation must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and the purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

The Arbitrator interpreted the priority consideration provision of the agreement as requiring that the Agency select a priority consideration applicant who meets the minimum qualifications for the position where there is no evidence support