54:1227(107)AR - - AFGE Council 220 and SSA, Region VI, Dallas TX - - 1998 FLRAdec AR - - v54 p1227
[ v54 p1227 ]
The decision of the Authority follows:
54 FLRA No. 107
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
September 30, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles N. Carnes filed by both the Union and 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 Agency did not file an opposition to the Union's exceptions.
The Arbitrator sustained the grievance in part and denied the grievance in part. For the reasons set forth below, we set aside the portion of the award pertaining to grievant 1, and deny the Union's exceptions.
II. Background and Award
Five employees filed grievances regarding the Agency's denial of their requests for hardship lateral reassignments to various locations in Texas.(2)
Because of the similarity of the grievances, the Agency consolidated them into one grievance, which it subsequently denied.(3)
The grievance was submitted to arbitration. As the parties did not stipulate an issue, the Arbitrator framed the issue as follows:
Did [the Agency] violate the provisions of the [Memorandum of Understanding] [(]MOU[)] or the [Collective Bargaining Agreement] [(] CBA [)] in the way it treated the reassignment requests of the [g]rievant[s] in any of the . . . [g]rievances under consideration? If so, what should the proper remedy be?
Award at 6.
The Arbitrator set forth the applicable provisions of the nationwide MOU and the parties' nationwide collective bargaining agreement (parties' agreement).(4) According to the Arbitrator, "[t]he standards of performance reiterated in the MOU (consistency, equity, and non-discrimination) are not really different from those established by the CBA, which has a much broader range of application." Id. at 7. The Arbitrator determined that "[t]he MOU was in effect at all material times." Id. at 1. The Arbitrator concluded that the circumstances of all the grievants satisfied the hardship standards of the MOU and that the Agency recognized the grievants as hardship applicants.
As to requirements set forth under the MOU, the Arbitrator found that: (1) paragraph A of the MOU requires that all reassignment decisions must be based on job-related factors; (2) paragraph D of the MOU requires that "[s]election from among hardship candidates with overlapping applications should be made on the basis of seniority" Id. at 8; (3) "[i]t is proper for the Agency to . . . properly weigh and consider all job-related information" Id. at 9; and (4) "[t]he Agency may elect to fill positional or locational vacancies by other means than [solicitations of interest (SINs)] and employee initiated requests. . . . However, it cannot abort a valid SIN or interrupt the consideration of a prior decision to proceed by lateral reassignment in order to evade responsibility for improper acts already taken." Id. The Arbitrator proceeded to consider, on a case-by-case basis, whether the Agency violated the MOU and the parties' agreement in denying the grievants' reassignment requests.
A. Grievant 1
In December 1993, grievant 1 initiated a hardship reassignment request to three specific offices in Houston or to Houston generally. In April 1994, the grievant went on leave without pay and began interviewing with several Agency offices in the Houston area. According to the Arbitrator, the Agency informed the grievant that his leave could not go on indefinitely and that he would have to resign. The grievant interviewed for several more positions in the Houston Southwest office during the summer of 1994; however, he was not selected for the positions. The grievant resigned in August 1994.
At the arbitration hearing, the Agency contended that the manager of the Houston Southwest office reported to the selecting official that "the [g]rievant would not 'fit in' [in] his office." Id. at 22. The selecting official also testified that "it was a prerogative of management to decide how to fill specific vacancies[.]" Id. Evidence was also presented to the Arbitrator that "[d]uring the [s]ummer of 1994, the [Dallas] Region had initiated SIN [No. 210-94A] for a position for which [the] [g]rievant was eligible and which had a closing date two weeks before his resignation." Id. According to the Agency's testimony, "while there were vacancies available in a Houston [o]ffice shortly before [the] [g]rievant resigned, . . . the [o]ffice [m]anager exercised the managerial right to choose how to fill a vacancy and [the manager] chose to fill the vacancy by internal promotion rather than by reassignment." Id. The Union contended that the grievant had a proper hardship and that his service computation date was senior to the person selected to fill the announced SIN position.
The Arbitrator found that: (1) the Agency did not explain "[w]hy [the] [g]rievant would not 'fit in'[;]" (2) when a selecting official uses a manager's recommendation as "the basis for his or her decision, [the decision] must stand or fall on the validity of the recommendation and whether or not [the decision] has a proper and rational basis to sustain it[;]" and (3) the manager's opinion "is too fleeting and minor to be accepted as a rational basis for disqualification for a reassignment." Id. at 22-23. The Arbitrator also found that "[t]here was an abuse of discretion[,] [because] the grounds shown by the Agency were insufficient to justify the denial of [the] [g]rievant's request for reassignment." Id. at 23. The Arbitrator concluded that "[h]ad [the grievant] been approved for the position for which he had applied, as under the facts the MOU required, his federal employment would not have been interrupted." Id.
The Arbitrator directed that grievant 1 be reinstated to federal service and that grievant 1 be offered the next vacant position in his field in Houston or Dallas. Additionally, the Arbitrator awarded grievant 1 backpay from the date of his resignation.
B. Grievant 2
Grievant 2 applied for a hardship reassignment to several areas in Texas. At the arbitration hearing, the Area Director testified that the grievant's supervisors verified "unfavorable information about the [g]rievant's job-performance." Id. at 16. Further testimony revealed that the Area Director "used this information in her decision not to approve the [g]rievant's permanent transfer into the [r]egion[,]" and that Area Director "did not consider the [g]rievant the 'best' candidate." Id. at 16-17.
At the arbitration hearing, the Union contended that vacancies were filled in the San Antonio area by hardship approvals while the grievant's request was pending. According to the Union, the grievant's hardship was as severe as the others and "the ultimate question is whether there was a rational basis for refusing [the grievant] a hardship transfer." Id. at 17. According to the Agency, there were a limited number of vacancies available in the area, and those that were filled went to employees who already had pending hardship requests.
The Arbitrator found that there were "job-related grounds for failing to approve [the] [g]rievant . . . for a permanent reassignment" to grievant's requested region and that grievant 2's "short comings [sic] were specific, of serious dimension and were repeated." Id. at 18. In denying the grievance, the Arbitrator concluded that "[e]mployees with significant performance or behavioral deficiencies may safely be rejected, even if they have a 'fully satisfactory' performance rating[.]" Id.
C. Grievant 3
Grievant 3 initiated a request for hardship reassignment to several areas in Texas. At the arbitration hearing, the selecting official testified that the grievant's supervisor told her about "certain deficiencies in [the] [g]rievant's job performance," and that she, the selecting official, relied on such information when she decided not to approve the grievant's reassignment. Id. at 20. According to the Area Director, there were as many as 40 hardship transfers into the area, and the grievant was not considered "the 'best' [candidate]." Id.
At the arbitration hearing, the Union contended that the grievant's hardship was similar to at least two other hardship cases which were approved by the Agency. According to the Union, the deficiencies noted by the grievant's supervisor were "minor, subjective in nature and amounted to nitpicking[,]" and that the Agency must show a rational basis for denying the grievant's hardship application. Id. According to the Agency, there were limited vacancies in the grievant's requested locations, and these vacancies were filled by personnel with outstanding hardship requests for lateral reassignments.
The Arbitrator found that "the reported job deficiencies [of the grievant] were of sufficient import as to provide a rational basis for the Agency . . . to withhold approval of [g]rievant's hardship request." Id. The Arbitrator further determined that: (1)"[t]he deficiencies were concretely described and explained[;]" (2)"they were persistent[;]" and (3)"they were recent enough that they would permit a reasoning mind to reach the conclusion that [the] [g]rievant did not satisfy the minimum standards of acceptance." Id. According to the Arbitrator, there was no abuse of discretion in this instance and that there was a rational basis for rejecting the grievant's request for reassignment.
III. Positions of the Parties
A. Grievant 1
1. Agency's Exceptions
The Agency contends that the award is deficient because it violates management's right to select employees for positions and management's right to fill specific vacancies under section 7106(a)(2)(C) of the Statute. Specifically, the Agency maintains that the Arbitrator, finding that management violated the MOU as to grievant 1's reassignment, "disregarded management's right to select personnel" and "substituted his judgment" for management's. Agency's Exceptions at 5.
Additionally, according to the Agency, the Arbitrator "disregarded management's right to select personnel" and "substituted his judgment and exceeded his authority" by directing that grievant 1 be offered the next position in the Houston area or the first option to the next position in the Dallas region. Id. at 5-6. The Agency asserts that the award violates the Statute as it restricts management's right to select.
The Agency also claims that the award, ordering the Agency to pay the grievant backpay, violates the terms of the Back Pay Act. In particular, the Agency contends that "[t]here was no unjustified or unwarranted personnel action" because grievant 1 was "properly considered for various vacancies under the Reassignment MOU and [was] not selected as the best candidate." Id. at 6.
Finally, the Agency maintains that management's statutory right under section 7106(a) is also incorporated in the parties' agreement and the MOU. According to the Agency, the award, by violating management's right to fill a vacancy and management's right to select personnel, fails to draw its essence from the parties' agreement or the MOU.
2. Union's Opposition
The Union contends that the Agency's exceptions were not timely as they were filed beyond the 30-day time limit for filing.
The Union maintains that it does not dispute the "Agency's right to determine what method to employ in filling a vacancy." Opposition at 1. According to the Union, by filling the vacancy, SIN No. 210-94A, by lateral reassignment, the Agency "subjected itself to the provision[s] of the MOU which [the] Arbitrator . . . determined were violated in the instant case." Id. at 1-2.
Additionally, according to the Union, the MOU is an extension of the parties' agreement and the Authority has held that a violation of an agreement is an unjustified personnel action. Thus, the Union contends that the award does not violate the terms of the Back Pay Act.
The Union also maintains that the Arbitrator's findings, that "the discretion exercised by the Agency in the case of [grievant 1] . . . exceeded the bounds of reasonableness[,]" and that "[s]uch an abuse of discretion violated the [parties' agreement] and the MOU[,]" were reasonable interpretations of the parties' agreement and the MOU. Id. at 1.
B. Grievants 2 and 3
1. Union's Exceptions
The Union contends that the award does not draw its essence from the parties' agreement. Specifically, the Union maintains that the Arbitrator has gone beyond the parties' agreement and substituted his judgment as to what constitutes acceptable performance for the standard supplied by the parties' agreement. According to the Union, Article 21, sections 1 and 5 of the National Agreement state that "an employee with a 'successful' appraisal rating is deemed to be in 'good standing' and has achieved 'an acceptable level of competency.'" Union's Exceptions at 1. The Union asserts that both grievants 2 and 3 "have at all times been rated as fully successful or better[.]" Id. Thus, the Union argues that the Arbitrator held grievants 2 and 3 to a higher standard than that set forth in the parties' agreement.
The Union also claims that the award is ambiguous. According to the Union, the Arbitrator determined that "it is improper for the [A]gency to accept only hardship applicants rated Outstanding or Excellent[.]" Id. at 2. However, the Union maintains that by allowing the Agency to reject candidates who are rated "Fully Successful for stated reasons that did not warrant an appraisal rating lower than fully successful," the Arbitrator is allowing the Agency to accept only hardship applicants with an outstanding or excellent rating. Id.
2. Agency's Opposition
The Agency did not file an opposition.
IV. Analysis and Conclusions
A. Preliminary Matter
According to the Authority's Regulations, 5 C.F.R. º 2425.1(b), the time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. Under 5 C.F.R. º 2429.27(d), the date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. A 5-day extension is added to the 30-day time limit for filing exceptions if the award is served by mail. 5 C.F.R. º 2429.22, 2429.27(d). The Union's assertion that the Agency's exceptions were not timely filed fails to take into account that the award was served by mail and, as a result, 5 days are added to the time limit for filing exceptions. See, e.g., Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 409 (1996). Calculated correctly, exceptions to the award were due no later than May 14, 1997. The Agency's exceptions were filed on that date. Therefore, the Agency's exceptions were timely.
B. The Award Concerning Grievant 1 is Contrary to Management's Right to Select under Section 7106(a)(2)(C).
As the Agency's exception concerns the award's consistency with the law, the Authority reviews the questions of law raised by the award 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 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). Upon finding that an 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); U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 53 FLRA 1426, 1431 (1998).
An award requiring management to make an actual selection for an appointment affects management's right to select under section 7106(a)(2)(C) of the Statute. See, for example, Department of Defense v. FLRA, 659 F.2d 1140, 1162 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (court held that the intent of section 7106(a)(2)(C) was, among other things, to ensure management's right to make the actual selection for appointments); American Federation of Government Employees, Local 12 and U.S. Department of Labor, 38 FLRA 1573, 1578 (1991). Here, the award places the grievant in a position, thus making a selection for appointment. Based on Authority precedent, the award affects management's right to select.
Assuming, without deciding, that prong I of the BEP test has been met, we find the award deficient under prong II of BEP. The Arbitrator determined that the Agency would have offered grievant 1 a transfer if it had properly applied the hardship reassignment provisions of the MOU. Although reconstruction of what the Agency would have done if it had acted properly would result in an offer to the grievant of a transfer, the grievant is no longer an Agency employee. As such, the grievant is not capable of accepting an offer of transfer.
In this regard, the Arbitrator ordered the Agency to reinstate grievant 1 to his former position because, according to the Arbitrator, the grievant would not have found it necessary to resign if the Agency had not violated the MOU by failing to offer a transfer. However, there is no dispute that the grievant voluntarily resigned his position. In particular, there was no contention, or finding by the Arbitrator, that the grievant's resignation was coerced by the Agency. There also was no contention or finding that, but for its violation of the MOU, the Agency would not have accepted the grievant's resignation. In fact, the resignation itself was not the subject of the grievance.(5) As such, the remedy directing the grievant's reinstatement does not constitute a reconstruction of what the Agency would have done if it had acted properly under the MOU. Instead, the award attempts to recreate conditions that changed because of the grievant's voluntary actions.
In these circumstances, the award of reinstatement does not constitute a reconstruction of what the Agency would have done if it had acted properly under the MOU. As such, it must be set aside. Since the Union did not request any remedies other than those personal to the grievant, and the grievant's voluntary resignation effectively eliminated the viability of any personal remedies, we set aside the award as to grievant 1.(6)
C. The Award Concerning Grievants 2 and 3 Does Not Fail to Draw Its Essence from the MOU.
In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).
In this case, the Arbitrator found that the MOU pertained to all reassignments. The Arbitrator also found that "[t]he criteria for the approval of all reassignment decisions made under the MOU must be 'job-related' factors." Award at 8. With respect to both grievant 2 and grievant 3, the Arbitrator concluded that there were job-related grounds for the Agency to deny their respective reassignment requests. Although the Union maintains that the Arbitrator substituted his judgment for standards set forth by the agreement, the award is based on standards set forth in the MOU. The Union has not demonstrated that the Arbitrator's interpretation and application of the MOU is unfounded, implausible, or irrational. Thus, the Union has not established that the Arbitrator's award fails to draw its essence from the MOU, and we deny the exception.
D. The Award Concerning Grievants 2 and 3 is Not Ambiguous.
In order for an award to be found deficient on this ground, the Union must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs Medical Center, Northport, New York, 51 FLRA 444, 448 (1995). The Union has failed to establish that implementation of the award is impossible. Moreover, the Arbitrator's findings, that the Agency's determinations denying the hardship transfers of both grievant 2 and grievant 3 were based on job-related factors, are clear and unambiguous. Consequently, as the Union has not shown that the award is ambiguous, we deny the exception.
The portion of the award concerning grievant 1 is contrary to section 7106(a) of the Statute and is set aside. The Union's exceptions that the award does not draw its essence from the MOU and is ambiguous are denied.
Opinion of Donald S. Wasserman, concurring in part and dissenting in part
I agree that the Agency's exceptions were timely filed. I also agree that the Union's exceptions as to grievants 2 and 3 should be denied. I dissent with respect to whether the Arbitrator properly awarded reinstatement for grievant 1, because I think that the award is a proper reconstruction.
First, in applying prong I of the BEP test, I would find that the arbitrator was enforcing a procedural contract provision. As to prong II, I think that the Arbitrator made the requisite determination of what would have happened in the absence of a contract violation. In particular, the Arbitrator stated:
But for the Agency's violation and abuse of discretion in its application of the MOU standards to his request for reassignment, Grievant  would not have found it necessary to resign from the service. Had he been approved for the position for which he had applied, as under the facts the MOU required, his federal employment would not have been interrupted.
Award at 23. Accordingly, the Arbitrator determined that proper application of the MOU would have resulted in continuing employment of the grievant, and I view that as a proper reconstruction that does not infringe on management rights.
I disagree with my colleagues' view that the reinstatement is not a valid reconstruction. In light of the above arbitral findings of fact, to which I defer, the grievant's reinstatement flows directly from the Agency's violation. The correction of the violation calls for just what the Arbitrator awarded -- reinstatement and transfer. I do not think that protection of management rights and application of prong II of BEP require the constraining view of reconstruction imposed by the majority.
I also view the findings and conclusions of the Arbitrator sufficient under the Back Pay Act. Since the essence exception is based upon the contractual incorporation of the management rights section of the Statute, that argument is also unavailing. Therefore, I would deny the Agency's exceptions.
This Agreement is by and between the American Federation of Government Employees (AFL-CIO), Council 220 (referred to as the Union) and the Social Security Administration, Field Office Component (referred to as the Employer or Management).
A. Purpose and Policy
The purpose and intent of the provisions contained herein are to ensure that the procedures and arrangements for non-competitive reassignments are applied in a consistent manner with equity to all employees in the field office component without regard to political, religious, or labor organization affiliation or non-affiliation, marital status, race, color, sex, national origin, non-disqualifying handicap, or age, and shall be based solely on job-related criteria.
1. Reassignment - For purposes of this agreement a reassignment is defined as: a) a permanent change in an employee's position, or; b) a permanent change in location involving a move to a different installation.
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3. Area of Solicitation is the area in which the Agency makes a search for qualified candidates in a specific reassignment action.
4. Qualified candidates are those applicants who meet the qualifications set and identified in writing by the Agency.
5. Hardship is defined as a set of circumstances that are so severe that they jeopardize the employee's or his/her family's health or financial security.
6. Solicitation of Interest is a memo, teletype, E-mail message or the like recruiting lateral candidates for a position.
C. Solicitation Procedures
1. When the agency decides to fill a vacancy through the reassignment method, it will announce the vacancy, in writing, throughout the area of solicitation. These Solicitations of Interest will be posted on Agency bulletin boards throughout the area of solicitation.
a. Solicitation for reassignments may be combined with merit promotion announcements.
b. If an employee alleges hardship and both management and the Council President (or designee) agree, a reassignment may be made directly without solicitation.
2. Information on the Solicitation of Interest
At a minimum, the Solicitation will include the following information:
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(d) Office location;
(e) Position (identifying whether part-time or full-time);
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(h) Name and address, and telephone number of selecting official;
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(l) Area of Solicitation;
(m) Inform employees to furnish Service Computation Date on the front of the 4100;
(n) In the event of a hardship, the employee must submit an explanation of the circumstances.
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4. The Employer will not set artificial qualifications or artificial areas of solicitation to avoid the seniority selection procedure.
5. The Employer shall date stamp the date of receipt on applications as well as retain the envelopes that came with the application.
6. Volunteers must timely apply in writing. The employee will use the form 4100. However, employees applying for a vacancy within their own district only need to submit a written statement of interest.
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9. The Employer will timely acknowledge, in writing, receipt of the application.
10. Applicants may decline any firm of