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52:0380(36)AR - - AFGE Local 2006 and SSA, Philadelphia, PA - - 1996 FLRAdec AR - - v52 p380

[ v52 p380 ]
The decision of the Authority follows:

52 FLRA No. 36





LOCAL 2006









October 1, 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 Thomas H. Phelan filed by the Union under section 7122(a)(2) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.

The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by selecting a candidate other than the grievant for a job vacancy.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a)(2) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

In March 1993, the Agency notified the grievant that she was "entitled to one priority consideration" to remedy an error the Agency made in processing the grievant's application for a job vacancy.(1) Award at 2. Thereafter, the Agency announced two vacancies for the position of Contract Administrator. The grievant applied for the position and requested priority consideration. Two other candidates entitled to priority consideration also applied.

The Agency granted the grievant's request for priority consideration but did not select the grievant for the position. According to the Agency's selecting officer, "[the grievant's] progress [review] show[ed] a deficiency in typing [and] accuracy" as well as "poor work habits[.]"  Award at 3, 4. For these reasons, the selecting officer awarded the position to another candidate.

The Union filed a grievance challenging the Agency's nonselection of the grievant and requesting that the grievant be awarded the position. After the grievance was denied at all three steps of the parties' negotiated grievance procedure, the Union invoked arbitration. At the arbitration hearing, the parties stipulated the issue to be:

Did the Agency violate Article 26, Section 8 of the National Agreement by failing to select the grievant for the position of Contract Representative (Vacancy No. 94-5)? If so, what shall the remedy be?

Award at 4.

The Arbitrator denied the Union's grievance. According to the Arbitrator, "[p]riority consideration . . . does not mean, nor does it imply, the automatic selection of an employee on a Roster of Eligibles for Priority Consideration." Id. at 9. The Arbitrator based this conclusion on a detailed analysis of the subsections of Article 26, Section 8. The Arbitrator also found "substantial proof that there was a 'real, actual, genuine, and not feigned' consideration and evaluation of [the grievant]."  Id. at 13.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that, for three reasons, the award fails to draw its essence from the agreement. First, the Union argues that the Agency did not accord the grievant "bona fide" priority consideration within the meaning of Article 26, Section 8 of the parties' agreement. Exceptions at 2. In particular, the Union asserts that the Agency's consideration of the grievant was "feigned," primarily because the selecting officer gave more weight to the grievant's progress review, which raised concerns about her skills and work habits, than to her annual performance appraisal, which rated her as fully successful. Id. at 3.

Second, the Union argues that although Article 21, Section 5 of the agreement permits the Agency to use performance appraisals in evaluating candidates for promotion, the selecting officer based her evaluation of the grievant on a progress review, not a performance appraisal.(2)  In this regard, the Union argues that "[the grievant's] case [is] being decided on the basis of a meaningless document[.]" Id. at 3.

Third, the Union argues that the progress review providing the basis for the selecting officer's evaluation should have been purged from the grievant's file, as required by Article 3, Section 5 of the agreement, prior to the evaluation.(3)  Accordingly, the Union asserts that "[the grievant's] case is prejudiced by the Agency's failure to follow the agreement."  Id. at 3.

B. Agency's Opposition

The Agency first contends that the Union's exceptions should be dismissed on procedural grounds. According to the Agency, the Union failed to comply with 5 C.F.R. § 2425.2 by: (1) not dating its exceptions; (2) neither dating nor signing its certificate of service; (3) stating that the exceptions "[were] served by certified mail, when [they were], in fact, sent by regular mail"; and (4) not submitting "any evidence or documentation (including a copy of the [A]rbitrator's award and copy of the hearing transcript) to support [its] claim before the Authority."  Opposition at 2.(4)

On the merits, the Agency contends that "[t]he [Union's] exceptions . . . do not meet any of the four tests established by the Authority to determine whether the award" fails to draw its essence from the agreement. Id. at 3. According to the Agency, the Union is merely "not happy with the [A]rbitrator's interpretation of the collective bargaining agreement[.]" Opposition at 3. The Agency also contends that some of the Union's exceptions are not properly before the Authority because they raise issues that were not presented to the Arbitrator. In this respect, the Agency notes that the stipulated issue concerned only Article 26, Section 8 of the agreement, but that the Union filed exceptions based on Article 3 and Article 21.

IV. Analysis and Conclusions

A. The Exceptions Should Not Be Dismissed on Procedural Grounds

The Authority has declined to dismiss filings on the basis of minor deficiencies where the deficiencies did not impede the opposing party's ability to respond. See, e.g., U.S. Department of the Navy, Naval Audit Service, Southeast Region and National Federation of Federal Employees, 44 FLRA 717 n.1 (1992) (failure to provide opposing party with statement of service was not a basis for dismissing application for review); Internal Revenue Service, Washington, D.C., 39 FLRA 1568, 1572-73 (1991) (failure to specify manner of service was "inadvertent error" that did not warrant dismissal of exceptions), vacated and remanded on other grounds sub nom. Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992).

Here, the record shows that the Union timely filed its exceptions along with sufficient supporting documentation.(5) To the extent that the Union failed to date its exceptions, to date or sign its certificate of service, or to correctly specify its manner of service, these deficiencies did not impede the Agency's ability to respond. In support of this conclusion, we note that the Agency filed a timely opposition that thoroughly addressed each of the Union's exceptions. We also note that the Union's apparent failure to serve all of its supporting documents on the Agency was inconsequential, as the record demonstrates that the Agency had access to, and made use of, the same documents in preparing its opposition.(6) Under these circumstances, we will not dismiss the Union's exceptions on procedural grounds.

B. The Award Does Not Fail to Draw Its Essence From the Agreement

It is clear that the Arbitrator, in response to the stipulated issue, based the award on a detailed interpretation of Article 26, Section 8 of the parties' agreement. As relevant here, the Arbitrator found that the Agency's consideration of the grievant was "bona fide" within the meaning of Article 26, Section 8. In support of this finding, the Arbitrator noted that the selecting officer: (1) familiarized herself with the requirements of the Contract Administrator position; (2) obtained from the grievant's manager information about the grievant's past and current performance; (3) determined, on the basis of this information, that the grievant's skills and work habits were incompatible with the requirements of the job; and (4) documented, in writing, her reasons for not selecting the grievant.

The Arbitrator also found that Article 26, Section 8 of the agreement does not require the automatic selection of an employee with priority consideration. If automatic selection were required, the Arbitrator reasoned, then "there would be no need for a best-qualified list following a Roster [of Eligibles for Priority Consideration], and the contract would not provide the priority consideration candidate with the right to also file a regular application for the same job." Award at 9-10.

The Union has failed to demonstrate that the Arbitrator's findings are irrational, unfounded, implausible, or manifest a disregard for the agreement. Consequently, the Union has not demonstrated that the award is deficient on essence grounds. See, e.g., American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 97-98 (1996).

In addition, we find that the Union's other exceptions raise issues that could have been, but were not, raised before the Arbitrator. Specifically, the record reveals that at the arbitration hearing, the Union stipulated the issue to be whether the Agency violated Article 26, Section 8 of the parties' agreement. In its exceptions, however, the Union challenges the award on the ground that the Arbitrator misapplied both Article 21 and Article 3 of the agreement. These issues have been raised for the first time before the Authority and, therefore, do not provide a basis for finding the award deficient. See, e.g., American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995); American Federation of Government Employees, Local 1637 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Seagoville, Texas, 49 FLRA 125, 128-29 (1994).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1.  The topic of "priority consideration" is addressed in Article 26, Section 8 of the parties' agreement. As relevant here, Article 26, Section 8 provides:

A. Definition. [A] priority consideration is the bona fide consideration for noncompetitive selection given to an employee on account of previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation.

B. Eligibility. An employee is entitled to . . . one priority consideration for noncompetitive promotion for each instance in which he/she was previously denied proper consideration[.]

C. Processing.

. . . .

3. Prior to completion of the best-qualified list, the name(s) of the employee(s) requesting to exercise priority consideration will be referred to the selecting officer. The selecting officer will make a determination on the requests prior to receiving a best-qualified list.

4. The fact that the employee chooses to exercise a priority consideration . . . does not preclude that employee from also filing a regular application.

Award at 7, 8.

2.  As relevant here, Article 21, Section 5 states: "Appraisal results will be used by the Administration as one of the bases for . . . promoting . . . the employee[.]" Exceptions, Exhibit 3 at 91.

3.  As relevant here, Article 3, Section 5 states:  "The [employee's] file will be screened and purged, normally in February, but in any case no later than March each year, and outdated material shall be removed and returned to the employee."  Exceptions, Exhibit 3 at 7.

4.  5 C.F.R. § 2425.2, as relevant here, states:

An exception must be a dated, self-contained document which sets forth in full:

(a) A statement of the grounds on which review is requested;

(b) Evidence or rulings bearing on the issues before the Authority;

(c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities; and

(d) A legible copy of the award of the arbitrator and legible copies of other pertinent documents.

5.  In support of its exceptions, the Union filed a copy of the Arbitrator's decision, a transcript of the arbitration hearing, the parties' agreement, and various internal documents concerning the grievant's suitability for the position for which she applied.

6.  Attachments to the Agency's opposition included the Union's exceptions, the Arbitrator's award, a transcript of the hearing, and various material from the arbitration hearing.