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55 FLRA No. 114
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-168
U.S. DEPARTMENT OF THE ARMY
FORT POLK, LOUISIANA
July 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Barry J. Baroni filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency had failed to follow merit system principles in filling a position. For the reasons that follow, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency advertized a vacancy announcement to both internal and external applicants for a GS-7 Contact Representative which listed a 1-year experience requirement as a GS-6. The grievant, a GS-5, did not apply because she did not have the GS-6 experience. The employee leaving the GS-7 position asked the grievant to send a copy of the vacancy announcement to another person at Ft. Sam Houston, Texas (Ms. M). The grievant contacted Ms. M, who told the grievant that she already knew about the vacancy because a Master Sergeant (MSG) had faxed the announcement to her.
The applications for the vacancy were rated and ranked and a referral list was sent to the selecting official, the MSG. The MSG chose Ms. M for the position. When the grievant learned that Ms. M had been selected, she contacted the personnel office because she knew Ms. M was also only a GS-5 and the announcement had required 1-year's experience as a GS-6. The personnel office determined that the GS-6 experience requirement had been a mistake. Accordingly, the personnel office canceled the first vacancy and readvertized the position without the GS-6 experience requirement.
The grievant applied for the position under the revised vacancy announcement. The grievant and seven other applicants were referred for selection. A different selecting official, a lieutenant, again chose Ms. M for the position. When Ms. M subsequently visited the facility, she declined the position. The alternate selectee was offered and accepted the position.
The grievant then filed a grievance and when it was not settled, it was submitted to arbitration. The parties submitted three questions to the Arbitrator:
1. Is the grievance arbitrable? [ [n1] ]
2. If the grievance is arbitrable, did the Agency violate Merit System principles, Ft. Polk Regulation 690-11, and Meddac Internal Promotion Policies in filling the Contact Representative, GS-7, position? [ [n2] ]
3. If so, what is the appropriate remedy?
Award at 1-2.
B. Arbitrator's Award
The Arbitrator found that the Agency had not violated its FY-96 hiring policy when it selected Ms. M for the position. [n3] The Arbitrator found that the hiring policy provided for the filling of vacant positions from external sources, and that the MEDDAC Commander personally authorized the recruitment of external applicants for the position. The Arbitrator concluded that the Union's claim that the Agency violated the hiring policy by recruiting and considering external applicants was without merit. [ v55 p655 ]
As to the Union's contention that the selection was based upon a personal relationship, favoritism, patronage and/or other non-merit factors, the Arbitrator found that "the evidence was just not probative of such." Award at 6. Specifically, the Arbitrator found that there was no evidence of a personal friendship between the MSG and Ms. M, that they worked at separate installations, that neither the MSG nor the lieutenant in any way assisted Ms. M in the preparation of her application, and that there was no evidence that the MSG's relationship with Ms. M was anything but professional.
The Arbitrator also found that the MSG had not violated "JRTC and Ft. Polk regulation 690-11, Civilian Personnel Merit Placement Plan" when the MSG telephoned Ms. M to inform her that she had been selected for the position. Award at 6. The Arbitrator determined that Ms. M had been notified of her initial selection by the personnel office. The Arbitrator also found that even if the MSG unofficially notified Ms. M of her initial selection, "it was not necessarily preselection[.]" Id. (emphasis in original). The Arbitrator noted that the grievant could not have been selected for the position under the initial announcement because the grievant had not submitted an application then.
As to other arguments raised by the Union, the Arbitrator found that they were largely hearsay, uncorroborated, and of a self-serving nature. The Arbitrator found that even if the MSG had made a remark that she would not consider any applicant who worked for a particular internal component, it did not show that any preselection had occurred. The Arbitrator concluded that the Union did not prove that preselection had occurred and, therefore, denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is inconsistent with the FY-96 hiring policy because that policy requires that an exception be granted to permit external recruitment and hiring. The Union maintains that no such exception was granted.
The Union argues that the award is also inconsistent with Fort Polk Regulation 690-11, which states that all competitive service positions will be filled solely on the basis of merit and fitness. The Union also states that the regulation bars personal favoritism or any other nonmerit factors from affecting placements. The Union argues that personal favoritism and preselection were present in the selection of Ms. M for the vacancy.
The Union contends that the Arbitrator erred in finding that the Agency had not violated its FY-96 hiring policy in selecting an external candidate. Specifically, the Union claims that the policy states that positions may not be filled from external sources unless a written exception is granted. The Union asserts that no such written exception had been granted regarding this vacancy. The Union also contends that the Agency did not observe the hiring preference accorded MEDDAC employees by the hiring policy when it selected an external applicant for the vacancy.
B. Agency's Opposition
The Agency contends that the Union's assertion of inconsistency with the FY-96 hiring policy is without merit. The Agency states that the policy requires an exception to permit external hiring. According to the Agency, the Arbitrator found that such an exception had been granted. Therefore, the Agency asserts that the award is not inconsistent with the FY-96 hiring policy.
As to the Union's contention that the award is inconsistent with Fort Polk Regulation 690-11, regarding filling positions based on merit and prohibiting favoritism and preselection, the Agency argues that the Arbitrator found that there was no evidence of such favoritism or preselection. Accordingly, the Agency asserts that the award is not inconsistent with Fort Polk Regulation 690-11.
The Agency asserts that the Arbitrator found that an exception to hire an external candidate was properly granted. The Agency also contends that the Union's claims of failing to observe priority consideration of internal candidates and preselecting the external applicant were argued before the Arbitrator. According to the Agency, the Arbitrator found that the evidence was not probative of the Union's allegations. The Agency claims that the Union is merely attempting to relitigate its case before the Authority.
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 establish that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbi- [ v55 p656 ] tration. Id. at 594 (citing National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
The Arbitrator found that the Union had failed to prove that the Agency violated its FY-96 hiring policy by selecting an external applicant. Contrary to the Union's claim that external recruitment had not been authorized in writing, and that internal applicants had not been accorded hiring preference, the Arbitrator specifically determined that the MEDDAC commander "personally authorized, the recruitment of external applicants for the subject position[,]" and that the standard form (SF) 52 constituted written authorization for external recruiting. Award at 5 (emphasis in original). The Arbitrator also found that the MSG had not exhibited favoritism in making a selection for the position. The Arbitrator said that "the evidence was just not probative of such." Id. at 6. The Arbitrator also found that in making her selection, the MSG had the authority to determine employee qualifications for the position.
The record establishes that these matters were disputed before the Arbitrator. Because the Arbitrator made specific factual findings based on matters that the Union disputed before him, and consistent with the standard above, there is no basis upon which to find the award deficient. We deny the exception.
B. The Award Is Not Contrary to Regulation [n4]
The exception claims that the award is contrary to the FY-96 hiring policy. For purposes of our analysis, we construe the FY-96 hiring policy as an Agency rule or regulation. According to the Arbitrator and the parties, the FY-96 hiring policy requires that an exception be granted for any external recruitment or hiring. The dispute centers on whether such an exception was granted. The Arbitrator, to whose factual findings we defer, found that the MEDDAC Commander personally authorized the recruitment of external applicants and also found that the SF 52 authorized external recruiting, based on documents submitted to him at the hearing. The exception also claims that the Agency's conduct violated Fort Polk Regulation 690-11 regarding filling positions based on merit and fitness and which bars favoritism or other nonmerit factors. The Arbitrator found that there was no proof of favoritism.
This exception does not challenge whether the award is consistent with Agency regulation. Rather, it essentially challenges the Arbitrator's factual findings, and this challenge has already been rejected.
Therefore, the exception does not demonstrate that the award is inconsistent with the regulations and we deny the exception.
The Union's exceptions are denied.
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