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The decision of the Authority follows:
50 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
MID-ATLANTIC PROGRAM SERVICE CENTER(1)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
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.
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 supporting management's decision not to select the applicant. Moreover, the Arbitrator interpreted that provision of the agreement as requiring that where the Agency determines not to select an employee who exercised priority consideration, the Agency must provide a full, complete and well-reasoned explanation for that decision. The Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement under any of the tests set out above. Accordingly, as the Agency's first exception provides no basis for finding the award deficient, we deny the Agency's first exception.
B. Contrary to Law
The Agency does not specify the particular provision of "law" to which it believes the award is contrary. In the two cases cited by the Agency, the Authority held that arbitrators' awards to promote grievants were contrary to management's right to select, as set forth in section 7106(a)(2)(C) of the Statute. Therefore, we construe the Agency's assertion that the award is contrary to law as an argument that the Arbitrator's interpretation and application of Article 26, Section 8 of the parties' agreement violates management's right to select under section 7106(a)(2)(C).
Arbitration awards interpreting and applying Article 26, Section 8 of the parties' agreement have been reviewed by the Authority in two previous cases. In U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri, and American Federation of Government Employees, Local 1336, 37 FLRA 816, 817 (1990) (SSA, Kansas City), an arbitrator held that the provision did not entitle a priority consideration candidate to "automatic selection." Nevertheless, the arbitrator interpreted the provision as requiring the agency to select priority consideration candidates who met minimum qualifications for a position, and the arbitrator found that but for the agency's violation of the parties' agreement the grievant would have been selected for promotion. Applying Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), the Authority denied the agency's exception that the award, which ordered the agency to promote the grievant in that case, violated its right to select under section 7106(a)(2)(C).
Subsequently, in U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134, 1142 (1993) (SSA, San Juan), a different arbitrator interpreted the same contract provision "as simply a procedure that defined the process by which the [a]gency would extend priority consideration." In particular, the arbitrator stated that the focus of his examination of the provision was "the process by which the [a]gency considered the grievant's application for promotion, rather than the 'substance or merits of the consideration.'" Id. at 1137 (citation omitted). Consistent with the arbitrator's interpretation of the provision, the Authority concluded that Customs Service did not apply and that the award, ordering the agency to promote the grievant in that case, was deficient because it conflicted with the agency's right to select under the Statute.
The Arbitrator in the case now before us held that Article 26, Section 8 did not require "automatic" promotion. Award at 11. However, the Arbitrator interpreted the provision as requiring "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." Id. at 12. According to the Arbitrator, the provision places a burden on the Agency "to try to select the employee exercising his/her priority consideration for the vacant position." Id. Reading the award as a whole, we conclude that it is not based on an interpretation of Article 26, Section 8 as constituting a procedure and, instead, is more like the arbitrator's interpretation of the provision in SSA, Kansas City. As such, noting that, based on the Arbitrator's interpretation of the provision, which has not been shown deficient, Article 26, Section 8, applies only to employees who were not given proper consideration for selection, under Customs Service, and consistent with SSA, Kansas City, the award is not deficient as contrary to the Agency's right to select under section 7106(a)(2)(C) of the Statute.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.
2. Article 26, Section 8, defines Priority Consideration as:
the bona fide consideration for non-competitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation.
Award at 4.