54:1161(102)AR - - Panama Canal Commission & District No. 1 Marine Engineers Beneficial Association [ MEBA ] - - 1998 FLRAdec AR - - v54 p1161
[ v54 p1161 ]
The decision of the Authority follows:
54 FLRA No. 102
FEDERAL LABOR RELATIONS AUTHORITY
PANAMA CANAL COMMISSION
DISTRICT NO. 1
MARINE ENGINEERS BENEFICIAL ASSOCIATION
September 28, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to two awards of Arbitrator Charles B. Overstreet 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 sustained two grievances and issued identical four-part remedies for each grievance. The Agency only excepted to two portions of each award.(1) The first disputed portion (designated below as "item #3") directs the rotation of eligible employees in a vacant position pending the rerun of a promotion action. The second disputed portion (designated below as "item #4") concerns the composition of the Appraisal Board, which rates and ranks candidates for the promotion action.
For the following reasons, the Authority sets aside item #3 and remands item #4 of both awards to the parties for resubmission to the Arbitrator, absent settlement, for a clarification.
II. Background and Awards
A. Grievance 1
The Agency published a vacancy announcement for the position of Chief Engineer-in-Charge, Shore Station (Engineer Manager) ME-16. Under the terms of the parties' agreement, the Agency was required to provide the two copies of the vacancy announcement via the Panama Canal Spillway (the Spillway), an Agency newsletter.(2) An investigation revealed that the Agency had not provided the Union with the required copies of the Spillway.
After the Agency selected an employee ("the selectee") to occupy the position permanently, the Union filed a grievance alleging that the Agency committed harmful error by failing to properly notify the Union of a vacancy under the parties' agreement. Article 19, Section 19.17(h) of the parties' agreement states that, the Agency's violation of procedures set forth in the parties' agreement may be the basis for reversing a management action when a harmful error occurrs.(3)
The grievance was not resolved and was submitted to arbitration. As the parties were unable to stipulate to the issues, the Arbitrator framed the issues as follows:
Did the Commission commit a "harmful error" under Article 19, Section 19.17(h) of the Agreement by their failure to provide the Association with two (2) copies of the Spillway announcement of the Engineer Manager ME-16 vacancy as required by Article 13, Section 13.05(a)(1)? If so, what is the proper remedy?
Award at 17.
At the arbitration hearing, the Agency stipulated that it failed to provide the Union with two copies of the Spillway as required by the parties' agreement. However, the Agency argued that this error did not constitute harmful error under Article 19, Section 19.17(h) of the parties' agreement. The Union, alleging breach of the agreement and harmful error, requested that the Arbitrator order the Agency to remove the selectee and rerun the vacancy.
The Arbitrator sustained the grievance. The Arbitrator found that the Agency, by failing to make a reasonable effort to distribute the Spillway announcing the vacancy, did not comply with Article 13, Section 13.05(a)(1) of the parties' agreement. The Arbitrator concluded that the Agency's failure to comply with section 13.05(a)(1) of the parties' agreement constituted harmful error.
As a remedy, the Arbitrator directed the Agency to: (1) remove the selectee from the position; (2) publish the vacancy announcement in the Spillway, for the contractual period of time; (3) allow volunteers or Commission-designated marine engineers to serve in a rotation as Engineer Manager on temporary duty (TDY) status for a 2-week period during the posting period and the selection process; and (4) appoint an Appraisal Board that does not include any person on the prior Appraisal Board.
B. Grievance 2
In connection with the same Engineer Manager vacancy at issue in Grievance 1, the Appraisal Board members reviewed the applications and determined that of the eleven candidates, nine were best qualified. The selectee, who was assigned to the position of Engineer Manager as a temporary duty (TDY), was ranked as #9 on the best qualified list.
The Union filed a grievance alleging that the Agency, by preselecting a candidate for the vacancy of Engineer Manager, violated 5 U.S.C. § 2302(b)(6),(4) and Article 13, Section 13.08(c)(2) of the parties' agreement.(5) The grievance sought as a remedy that the Agency remove the selectee and rerun the vacancy.
After the Agency denied the grievance, it was submitted to arbitration. As the parties were unable to stipulate to the issues, the Arbitrator framed the issues as follows:
Whether o[r] not [the selectee] was pre-selected as a candidate to occupy the position of Engineering Manager in violation of Article 13, Section 13.08(c)(2)? If so, what is the proper remedy?
Id. at 41.
At the arbitration hearing, the Agency argued that the dispute should be confined to the issue of whether there was a violation of Article 13, Section 13.08(c)(2) of the parties' agreement, because the Union, in its formal grievance, only cited Article 13, Section 13.08(c)(2). The Agency maintained that the parties' agreement specifically states that "issues not raised at the formal grievance level may not be raised at arbitration." Id. at 48-49.
According to the Arbitrator, the question before him was not which section of the parties' agreement applied, but whether the Agency committed favoritism.(6) Thus, the Arbitrator found that it was within his discretion "to determine which, if any, contract provisions are applicable." Id. at 49.(7) Specifically, the Arbitrator found that grievance 2 complained that: "(1) [m]anagement committed the fine art of 'pre-selection'[;] (2) the [Agency] violated 5 U.S.C. § 2302(b)(6) by granting preference or advantage not authorized by law, rule, or regulation[;] and (3) the [Agency] violated Article 13, Section 13.08(c)(2) of the Agreement." Id.
In response to the Agency's contention that "assignments are a management right," the Arbitrator found that although "Article 5, Section 5.02(a)(2) grants the [Agency] the right 'to assign work, . . . to determine the personnel by which its operations shall be conducted[,]'" this right is restricted by Article 13, Section 13.13(a). Id. at 44, 49. The Arbitrator also found that Article 13, Section 13.13(a), provides for a temporary promotion as the most effective way to handle a situation requiring an employee in a higher-graded position, but that temporary promotions are not be used for the sole purpose of either training or evaluating employees for higher-graded positions. A member of the Appraisal Board testified that the fact that the selectee was in the position already "weighed heavily in his favor." Id. at 45. The Arbitrator further found that the selectee was the only marine engineer assigned to TDY duty to relieve the Engineer Manager. Based on these findings, the Arbitrator concluded that the Agency's actions demonstrated favoritism. The Arbitrator also determined that the Agency violated 5 U.S.C. § 2302(b)(6).
After finding the existence of favoritism and a violation of law, the Arbitrator proceeded to consider the promotion procedures under Article 13, Section 13.08(c)(2) of the parties' agreement. The Arbitrator determined that Article 13, Section 13.08(c)(2) requires that a distinction be made between the qualified and best qualified candidates at a "clearly identifiable gap" in the numerical ratings. Id. at 50 (emphasis in original). The Arbitrator found three identifiable gaps in the ratings: (1) a gap of six points between candidates #4 and #5; (2) a gap of thirteen points between candidates #8 and #9; and (3) a gap of nineteen points between candidates #9 and #10. The Arbitrator concluded that the Agency should have used the first identifiable gap between candidates #4 and #5 as the division point between the qualified and best qualified candidates. However, in further support the existence of favoritism on the part of the Agency of the selectee, the Arbitrator determined that "no reasonable person can successfully argue that between [c]andidates #8 and #9 there was not an 'identifiable gap'[.]" Id. at 51.
The Arbitrator concluded that the Agency violated sections 13.08(c)(2) and 13.13(a) of the parties' agreement and 5 U.S.C. § 2302(b)(6) by preselecting the selectee for the position. As a remedy, the Arbitrator directed the Agency to: (1) remove the selectee from the position; (2) publish the vacancy announcement in the Spillway, for the contractual period of time; (3) allow volunteers or Commission-designated marine engineers to serve rotations as Engineer Manager on TDY status for a period of 2-weeks each; and (4) appoint an Appraisal Board that does not include any person on the prior Appraisal Board.
III. Positions of the Parties
A. Agency's Exceptions(8)
The Agency contends that although the Authority case law cited in support of its contentions pertains mostly to negotiability matters, such case law "clearly determines the scope of management's right involved in this matter[.]" Exceptions at 7. The Agency cites U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035 (1991), for the proposition that the Arbitrator may not award remedies in favor of a Union, for which the Union could not have bargained. The Agency does not dispute the Arbitrator's order to vacate the position and rerun the vacancy.(9)
1. Item #3 of both awards
The Agency contends that "item [#]3 of the award[s are] contrary to management's right 'to assign employees', 'to assign work', and 'to select' within the meaning of section 7106(a)(2)(A), (B) and (C)" of the Statute. Exceptions at 2. According to the Agency, by requiring the rotation of employees through the Engineer Manager position, the awards restrict management's right to terminate, extend, modify, and make new work assignments to the position. The Agency maintains that Authority precedent has "rejected imposed rotations with set time limits, because these would violate the right 'to assign employees' and 'to assign work'." Id. at 3, American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987), dismissed as to other matters, No. 88-8006 (11th Cir. August 30, 1990), and American Federation of Government Employees, AFL-CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 42 (1980).
Additionally, the Agency asserts that item #3 of both awards precludes management from leaving the position vacant, as it is permitted to do under section 7106(a)(2)(A) and (C) of the Statute.
2. Item #4 of both awards
The Agency contends that by ordering management not to appoint the same employees to the Appraisal Board when the vacancy is rerun, the awards conflict "with management's rights 'to assign work' under section 7106(a)(2)(B) of the Statute." Exceptions at 5. The Agency, citing National Treasury Employees Union and Department of Treasury, Financial Management Service, 29 FLRA 422 (1987), asserts that the Authority has held that the assignment of an employee as a member of the Appraisal Board is an assignment of work.
According to the Agency, the Authority, in recent decisions such as National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 572 (1997) (PTO), has "'opened the door' to panel composition proposals [by holding that] when these [proposals] are determined to be 'appropriate arrangements' [and that] these arrangements may only be deemed appropriate when they do not interfere 'excessively' with management's rights." Exceptions at 6 (quoting National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986)). The Agency maintains section 13.08(b) of the parties' agreement requires that members of the Appraisal Board be of equivalent or higher grade than the position being filled, and that "it would be highly desirable to both parties to have at least one licensed marine engineer as a member of the Appraisal Board[.]" Exceptions at 6. Thus, the Agency argues that as the award curtails an already reduced number of potential Board members, the award excessively interferes with management's right to decide which employees will perform the task of the Appraisal Board members.
Additionally, the Agency notes that the Authority applied an "abrogates management's rights" test in National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265 (1997). However, the Agency contends that this test does not apply in cases where the Arbitrator is neither enforcing nor interpreting a negotiated provision of the parties' agreement. According to the Agency, the Arbitrator did not consider section 13.08(b) of the agreement (pertaining to the composition of the Appraisal Board) applicable to this case. Further, the Agency maintains that item # 4 is "totally unrelated" to the issues presented to the Arbitrator. Exceptions at 7.
B. Union's Opposition
The Union contends that the Agency did not present exceptions that are procedurally sufficient with respect to the facts and the law to support its contention that the award is deficient. According to the Union, the Agency has not clearly identified the award to which the exceptions are filed. The Union maintains that although the Arbitrator's decision was "paginated as one, there was a clear delineation between the two grievances, both factually and in the reasoned decisions." Opposition at 8. According to the Union, the Agency's exceptions only address items #3 and #4 of the award of grievance 2.
The Union further argues that the Authority case law, as cited by the Agency for the proposition that the awards violate management's rights, pertains to negotiability decisions regarding management's rights, and does not apply to arbitral remedial awards.
1. Item #3 of both awards
The Union asserts that arbitrators have considerable latitude in fashioning awards. The Union maintains that the Arbitrator did not exceed his authority as he "resolved only those specific issues that were presented to him." Id. The Union claims that the Arbitrator "narrowly tailored" the awards to remedy the specific wrongs and to place the harmed parties in an equal position with the preselected candidate. Id. According to the Union, the Agency's argument that a 2-week assignment is too short and infringes upon management's rights to assign work "is absurd." Id. at 10. The Union argues that the awards do not restrict the Agency's ability to manage the TDY assignment and the position.
The Union also contends that the Agency, by asserting that the awards prevent the Agency from leaving the position vacant, "may be attempting to escape its obligations under the award by not hiring an Engineer Manager." Id. at 11, n.5. In support of this argument, the Union submits a letter, written after the issuance of the Arbitrator's decision, from the Agency, Opposition, Exhibit A, which, according to the Union, "demonstrates the [Agency's] true hostilities toward marine engineers[.]" Id.
2. Item #4 of both awards
According to the Union, the awards do not interfere with management's right to assign work; they merely require management to assign different members to the Appraisal Board than those previously assigned to the panel. The Union maintains that these awards are similar to the award sustained by the Authority in American Federation of Government Employees, Local 2369 and U.S. Department of Health and Human Services, Social Security Administration, 45 FLRA 124 (1992) (an award, not permitting a supervisor to conduct a reappraisal, did not abrogate management's right to assign work because the arbitrator preserved management's discretion to determine the identity of the supervisor who would perform the appraisal).
Alternatively, the Union, citing PTO, 53 FLRA at 571, contends that the awards are enforcing appropriate arrangements based on the Agency's violation of the parties' agreement and 5 U.S.C. § 2302(b)(6). The Union maintains that the awards do not excessively interfere with management's right to assign work, because they do not instruct management to assign certain employees to the panel.
Finally, the Union asserts that the Arbitrator properly reconstructed what the Agency would have done had the Agency not violated the agreement and 5 U.S.C. § 2302(b)(6).
IV. Analysis and Conclusions
A. Preliminary Matters
1. The Agency's Exceptions are Procedurally Sufficient.
According to the Union, the Agency's exceptions are deficient because: (1) the Agency does not set forth the award to which it is filing the exceptions; (2) the Agency only cites Authority negotiability cases which do not have any applicability to awards of arbitrators; and (3) the Arbitrator is given broad discretion in fashioning remedies.
First, the Agency, in its exceptions, specifically states that it is excepting to items #3 and #4 of both awards. The Agency indicates that it considered the remedial items of the awards to be identical, and thus, the Agency sets forth only one version of the awards. Further, as the exceptions consist of case law pertaining to the issues before the Authority, the exceptions are sufficiently clear for the Authority to understand the issues presented by the Agency. The Agency has set forth the elements of the Arbitrator's awards to which it excepts with sufficient particularity to inform the Authority as well as the parties of the basis of its exceptions. See U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Dallas, Texas, 51 FLRA 945 (1996).
Second, the Authority does rely on negotiability precedent to resolve the question of management's rights in arbitration awards. See U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Third, according to Authority precedent, an arbitrator is accorded wide discretion to fashion a remedy, but that discretion is not unlimited and is subject to review for consistency with management's rights. Cf. U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 53 FLRA 1426, 1429 (1998) (VAMC, Coatesville). Accordingly, we find that the Agency has presented procedurally sufficient exceptions.
2. Evidence Submitted by the Union Subsequent to the Award Will Not Be Considered by the Authority.
Generally, the Authority has held that arbitration awards are not subject to review on the basis of evidence in existence at the time of the arbitration, but not presented to the arbitrator, or evidence that comes into existence after the arbitration. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 519-20 (1997) (Defense Commissary Agency). Even where new evidence or testimony is discovered that would have resulted in a different award if it had been presented at the arbitration hearing, the Authority has held that this is not a sufficient ground for "vitiating the required finality of the original award." Id. at 519 (quoting Veterans Administration, Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 471 (1981) (VA)). This precedent is consistent with section 2429.5 of the Authority's Regulations, which provides, in pertinent part:
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before . . . the arbitrator. The Authority may, however, take official notice of such matters as would be proper.
In the instant case, the Union submits, as an attachment, Exhibit A, to its Opposition, a copy of a letter from the Agency regarding the Engineer Manager's position. The Union argues that this letter, written after the issuance of the awards, shows the Agency's "true hostilities towards marine engineers." Opposition at 11, n.5.
It is undisputed that the letter did not exist at the time of the hearing. Nevertheless, consistent with Authority precedent, such evidence may not be introduced to refute material on the record before the Arbitrator. See Defense Commissary Agency, 53 FLRA at 520; VA, 5 FLRA at 470-71. Accordingly, the Authority will not consider the Union's attachment, Exhibit A, in reviewing the Arbitrator's awards.
B. Item #3 of Both of the Awards is Contrary to Management's Right under Section 7106(a)(2).
As the Agency's exception concerns the awards' consistency with the law, the Authority reviews the questions of law raised by the awards and the Agency's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in BEP, 53 FLRA at 151-54. Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180, 185 (1998); VAMC, Coatesville, 53 FLRA at 1431.
The Authority has held that an award requiring an agency to rotate employees in a position for a certain period of time affects management's right to determine qualifications and skills, and thus, to assign employees under section 7106(a)(2)(A) of the Statute. U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Planners, Estimators, Progressmen and Schedulers Union, Local 2, 51 FLRA 1777, 1782 (1996). Here, item #3 of the awards orders the Agency to rotate personnel in the vacant position for two weeks. Based on Authority precedent, the portions of the awards ordering the temporary rotation assignments of the employees to the position affect management's rights.
In determining whether an award satisfies prong I of BEP, the Authority determines whether the provision of the agreement being enforced by the Arbitrator, was negotiated pursuant to section 7106(b) of the Statute. In the instant case, even assuming Article 13, Section 13.13(a) is enforceable under prong I of the BEP framework, item #3 of both the awards does not constitute a reconstruction of what the Agency would have done had it not violated Article 13, Section 13.13(a).
Article 13, Section 13.13(a) of the parties' agreement contains requirements concerning the use of temporary details as a method of selecting employees. The Arbitrator found that under Article 13, Section 13.13(a), temporary promotions are not to be used for the sole purpose of training or evaluating employees. The provision makes no mention of sequential details of applicants to positions, nor does the Arbitrator make any such interpretation. Moreover, the Arbitrator did not find that the Agency would have assigned any of the other candidates for the vacancy to temporarily fill the supervisory position if it had properly conducted the selection process. Consequently, the portion of the Arbitrator's awards ordering the temporary assignments of volunteers or Agency-designates to the position is not based on a reconstruction of what management would have done if it had acted in accordance with Article 13, Section 13.13(a). See, e.g., VAMC, Coatesville, 53 FLRA at 1430. Thus, item #3 of the awards does not satisfy prong II of BEP. Accordingly, we will set aside this portion of both awards.
C. Item #4 of Both of the Awards Requires Clarification.
The Agency contends that item #4 of the awards, directing the Agency to appoint different members to the Appraisal Board when the vacancy is rerun, violates management's right to assign work under section 7106(a)(2)(B). As explained above, the Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in BEP, 53 FLRA at 151-54. The Arbitrator determined that the Agency violated 5 U.S.C. § 2302(b)(6), by preselecting the selectee for the position. Thus, as the award provides a remedy for a violation of applicable law, the award satisfies prong I of the BEP analysis.
Under prong II of BEP, the question is whether the Arbitrator's remedy, directing the Agency to appoint a new Appraisal Board for the rerunning of the vacancy, is a proper reconstruction of what the Agency would have done had it not violated the law. In order to apply prong II of the BEP analysis required by this precedent, it is essential to identify how the violation relates to the remedy. The Arbitrator did not explain how the Agency's violation of the law pertains to the appointment of a new Appraisal Board for the rerunning of the vacancy. The Arbitrator made a general finding that the Agency's action in the announcement and selection process of the Engineer Manager vacancy constituted favoritism. However, the Arbitrator did not specifically find favoritism on the part of the Board members. In fact, the Arbitrator did not make any findings concerning the Appraisal Board.(10)
Although we are reluctant to prolong resolution of this dispute, we are unable to resolve the Agency's exception that this portion of the awards is deficient because it violates management's rights under section 7106(a). Accordingly, we remand item #4 of the awards to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the awards. See U.S. Department of Defense Dependents Schools and Federal Education Association, 53 FLRA 249, 255 (1997); National Federation of Federal Employees, Local