[ v51 p998 ]
The decision of the Authority follows:
51 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY CHEMICAL AND MILITARY
POLICE CENTERS AND FORT MCCLELLAN
FORT MCCLELLAN, ALABAMA
March 29, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William H. Holley, Jr. 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 did not file an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance regarding the nonselection of two employees for promotion and ordered that the promotion action be rerun.
For the following reasons, we conclude that the Agency's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The Agency announced four vacancies for GS-5 Dental Assistant positions. Six candidates were determined to be eligible and were listed as "highly qualified." The selecting official chose a selection panel to review and rate the six candidates. Based on the selecting panel's recommendations, the selecting official chose four candidates for the positions. The two nonselected candidates grieved. The grievance was not resolved and was submitted to arbitration.
The parties agreed that the issue before the Arbitrator was the alleged violation of the parties' agreement concerning, as relevant here, unfair selection process and interview criteria. The Arbitrator found that, under the agreement, job placement is to be administered under the provisions of Fort McClellan Regulation 690-335 (FM 690-335).(1) The Arbitrator examined FM 690-335, specifically Chapter 6-4, Job Analysis, and determined that the questions asked by the panel members during the interview were not based on information provided from the job analysis of the position. After reviewing the scoring system used by the panel members, the Arbitrator concluded that because of the interview score, one grievant who otherwise would have been chosen was not selected. The Arbitrator concluded that "the interview was not job-related and the results were contaminated by extraneous information, thereby tainting the selection process itself." Award at 23.
The Arbitrator found that although the selection procedure was tainted, there was insufficient evidence to conclude that, if the selection procedure had been conducted properly, the grievants would have been promoted or that the candidates selected would not have been chosen. The Arbitrator directed the Agency to conduct the selection procedure again in compliance with the agreement and FM 690-335.
The Agency contends that the Arbitrator erred in relying on Chapter 6 of FM 690-335, which provides procedures for the rating and ranking of applicants prior to their referral to the selecting official, instead of relying on Chapter 7, which contains guidelines to be used by selecting officials in the selection process and interview criteria. The Agency argues that by relying on provisions intended for use by rating panels, when this case involved a selection panel, the Arbitrator committed an "error which concerned facts upon which he based his decision, and that but for this gross mistake of fact a different result would have been reached." Exceptions at 5.
The Agency also argues that the award is inconsistent with the Federal Personnel Manual (FPM), Chapter 332, Appendix I, Guidelines for Selection Interviews.(2) The Agency asserts that the prerequisites for applicants' eligibility for a position are distinct from the matters that may be discussed during an interview of applicants who have been determined to be qualified for the position. According to the Agency, selection criteria are not invalid merely because they are not objective, and subjective evaluation of personal job-related characteristics is permissible as long as it is uniformly applied to all candidates.
IV. Analysis and Conclusions
A. The Award Is Not Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).
The Agency has not established that the Arbitrator's reliance on a provision of FM 690-335 constitutes a "fact" underlying the award. The Arbitrator's conclusion that portions of FM 690-335 were applicable resulted from his evaluation of the evidence presented and his interpretation of the parties' agreement and the regulation and, as such, cannot be challenged as a nonfact. See American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995). Accordingly, we find that the Agency has not established that the Arbitrator relied on a nonfact and, therefore, has not demonstrated that the award is deficient on this ground.(3)
B. The Award Is Not Contrary to Law, Rule, or Regulation
Under section 7122(a)(1) of the Statute, the Authority examines exceptions to arbitral awards to determine if an award is contrary to any law, rule, or regulation. Determinations as to whether particular agency issuances have the force and effect of law or regulation must necessarily be made on a case-by-case basis. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 399 n.4 (1991) (IRS), enforcement denied as to other matters, 996 F.2d 1246 (D.C. Cir. 1993). In IRS, 42 FLRA at 399 n.4, the Authority noted judicial precedent to the effect that some portions of the FPM constitute binding regulations whereas other portions constitute policy guidance.
The Authority has not previously considered whether FPM Chapter 332, Appendix I constitutes a regulation within the meaning of section 7122 or guidance. FPM Chapter 332, Appendix I is entitled "Guidelines for Selection Interviews." A review of the material in Appendix I reveals that the appendix does not bind an agency's actions. Rather, except for repeating Rule 4.2 regarding questioning applicants about race, political affiliation, or religious beliefs, the material constitutes advice to agencies concerning personnel practices. Therefore, we construe FPM Chapter 332, Appendix I as a guidance section of the FPM. See U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 488-92 (1991). As FPM Chapter 332, Appendix I does not constitute a regulation within the meaning of section 7122 of the Statute, the Agency's claim that the award is deficient as contrary to the FPM does not provide a basis for finding the award deficient.(4)
The Agency's exceptions are denied.
APPLICABLE AGREEMENT PROVISIONS AND REGULATIONS
Article 3, Rights of the Employer
3.2 The [Agency] reserves the right to determine the mission, budget, organization, number of employees, and internal security practices; and in accordance with applicable laws:
. . . .
c. With respect to filling positions, to make selections for appointments from:
(1) Among properly ranked and certified candidates for promotion; or
(2) Any other appropriate sources[.]
Article 20, Merit Placement, Promotion and Detail
20.1 Job placement will be made based on merit and sound judgment and will be administered under the provisions of Fort McClellan Regulation 690-9, as negotiated. (This regulation was superseded by Ft. McClellan Regulation 690-335, dated 1 June 1989).
Ft. McClellan Regulation 690-335
Chapter 6. Methods of Evaluation
6-1. Panels And Panel Composition
a. Candidates will be evaluated either by the [Directorate of Civilian Personnel] DCP representatives or by a rating panel, comprised of subject matter experts (military and/or civilian employees). When rating panels are used, a representative of the DCP will serve as an advisor/panel member and assure that merit principles are followed. Panels should normally be composed of three subject matter experts (SMEs) or two SMEs and one DCP representative[.]
. . . .
c. A rating panel will not normally be used when there are 10 or less qualified candidates for the position to be filled. When applying simplified candidate evaluation procedures, all candidates who are determined to be high quality may be referred as the best qualified without assigning scores. High quality candidates are those who, in the rater's judgement[sic], possess the [knowledge, skills and ability] KSAs identified by a job analysis. When making highly qualified determinations, the performance appraisal must be used.
6-4. Job Analysis
Job-related criteria will be identified through job analysis using available information relevant to the job duties. This could include, for example, job description, performance standards, qualification standards, classification standards, mission statements, employee interviews, visits to the job site, etc. The job-related criteria identified may cover a single position, a group of positions, or related occupations having common characteristics with no critical differences in duties and responsibilities. Identification and development of job-related criteria will be accomplished by SMEs, in collaboration with the staffing specialist. Steps in accomplishing job analysis and development of job-related criteria will be documented in accordance with applicable regulations.
6-5. Crediting Plan
Job-related criteria that are identified and developed through the job analysis process are incorporated into a crediting plan. The crediting plan lists the KSAs which must be brought to the position, and if possessed to a high degree, will distinguish the likely highly successful performer(s). Each element includes performance level definitions normally ranging from one to four points, which are used as the measure to evaluate qualified candidates. For lower grade levels the range may be from two to four points. Once developed, a crediting plan becomes a guide for raters to use in evaluating candidates for jobs for which the plan applies. Each crediting plan may be periodically reviewed for adequacy and may be revised as necessary during the rating process or later for subsequent jobs.
Chapter 7. Referral and Selection
a. Selecting officials will give full, independent, and impartial consideration to any and all candidates referred by DCP representatives.
b. Review of the application forms, supplemental qualification statements, performance ratings, and merit promotion ratings of all candidates included on the referral list is recommended but not required.
c. If one applicant is interviewed, all must be interviewed if the applicants referred include one or more bargaining unit employees.
. . . .
g. Selecting officials must provide the reason(s) for the selection on the referral list; e.g., DA Form 2600, Referral and Selection Register, DD Form 359, Referral for Consideration, or DA Form 2302-2-R, Civilian Career Program Referral Request and Record. The selection must be based on merit and on criteria directly related to the requirements of the position. The selecting official will be expected to select the candidate whose particular qualifications best meet the needs of the specific job. The provisions of the current Fort McClellan Multi-Year Affirmative Employment Program Plan must be considered when the vacant position is identified as one in a series and grade in an underrepresented category. This is available for review through the EEOO.
(If blank, the decision does not have footnotes.)
1. The text of applicable agreement provisions and regulations is set forth in the Appendix to this decision.
2. The FPM was in effect at all times pertinent to the grievance and arbitration proceeding. On December 31, 1993, the FPM was abolished and succeeded by a Provisional System which would "sunset" on December 31, 1994. See FPM Sunset Document at 1.
3. The Agency does not dispute whether FM 690-335 constitutes an "applicable law," within the meaning of section 7106(a)(2) of the Statute, or whether the regulation otherwise is subject to enforcement in arbitration. Further, it does not appear from the record that the grievance was based on an alleged violation of the regulation. As such, we leave for another day, when such issues are properly raised, discussion of the extent to which a grievance involving the exercise of a management right under section 7106(a)(2) may seek to impose or enforce constraints that do not constitute "applicable laws," as such term has been construed by the U.S. Supreme Court in Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990).
4. In light of this determination, we need not consider the question of retroactive application of an expired provision of the FPM. See U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 224-25 (1995), citing Landgraf v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483, 1501-05 (1994).