[ v55 p1019 ]
55 FLRA No. 166
U.S. DEPARTMENT OF LABOR
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12
September 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Andree Y. McKissick 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 the grievance, determining that the Agency violated the parties' collective bargaining agreement because it failed to select the grievant for promotion, and ordered the Agency to give the grievant a retroactive promotion with backpay. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a Paralegal Specialist, applied for a promotion to one vacancy for a Staff Assistant and two vacancies for a Supervisory Paralegal Specialist. All the vacancies were within the same division of the Agency, as a result of a reorganization. Seven individuals applied for the Staff Assistant position and three individuals applied for the two Supervisory Paralegal Specialist positions. All candidates, including the grievant, were placed on the Certificate of Eligibles (certificate) and interviewed by the same selecting official for the respective positions. After the grievant was not selected for any of the positions, she filed a grievance based on her nonselection for promotion. The parties were unable to resolve the grievance and it was submitted to arbitration.
As the parties were unable to agree on a stipulation of the issues to the Arbitrator, the Arbitrator framed the issue as follows:
Whether or not it is the right and within the discretion of the United States Department of Labor to make the actual selection of a candidate for promotion as set forth in 5 U.S.C. § 7106(a) and Article 43, Section 3(b)(4) of the Collective Bargaining Agreement?
Award at 5.
Because the Agency had challenged the arbitrability of the grievance, the Arbitrator first determined that it was arbitrable. The Arbitrator found that a "Settlement Agreement" [n2] between the parties provided an exception, in this case, to the exclusion set forth in Article 43, Section 3(b)(9) of the parties' agreement. [n3] Award at 10. The Arbitrator further determined that this conclusion was consistent with the objectives and purposes of Article 16, Merit Staffing Principles, and Article 20, [n4] Equal Employment Opportunity, of the parties' agreement, and that the agreement must be read and interpreted as a whole.
With respect to the merits of the award, the Arbitrator concluded that the Agency violated the "merit staffing principles" set forth in Article 16, Section 7(c)(2) and (3) [n5] and Article 16, Section 6(d)(1) and (2) [n6] of the parties' agreement. Award at 12. In support of this conclusion, the Arbitrator found that upon reviewing the qualifications of the grievant and the selectee for the Staff Assistant position, the selectee had little experience as a paralegal and had never been a supervisor, [ v55 p1020 ] whereas the grievant excelled in both areas. Award at 13.
The Arbitrator also found that there were "two notable omissions" in the "Basis of Selection" document developed by the selecting official to document the factors relied on in making the three selections. Id. These omissions related to the weight given to length of service, and to the personal interviews. Specifically, the Arbitrator found that, as the grievant had the most seniority compared to the selectees, the selecting official "knowingly" failed to consider the length of all the applicants' service as set forth in Article 16, Section 7(c)(3)(a) of the Agreement. Id. at 14. Furthermore, the Arbitrator determined that, given the selecting official's testimony emphasizing that "the interviews decisive role in his selection process," the selecting official's omission in the Basis for Selection to note that the interview process was crucial must have occurred "with forethought and design." Id. at 14-15. The Arbitrator determined that she could not credit the selecting official's testimony on this and several other points.
The Arbitrator found the grievant "possesse[d] the best combination of education, experience, work traits and job performance of all other candidates for the positions of Staff Assistant and Supervisory Paralegal Specialist." Id. at 15-16. The Arbitrator determined that "[b]ased on the totality of circumstances of this grievance, it would seem . . . . that preselection occurred. In particular, the position of Staff Assistant was specifically designed to fit the [s]electee . . . to the detriment of the [g]rievant." Id. at 17.
Also in support of the Arbitrator's conclusion that a contract violation occurred, the Arbitrator found, based on the grievant's testimony and several Union exhibits, that a pattern of discrimination existed against the grievant and that her diabetic condition was a factor in her nonselection. Id.
All of these findings led the Arbitrator to conclude that the Agency engaged in preselection in its selection process for the positions of Staff Assistant and Supervisory Paralegal Specialist, in violation of the parties' agreement. The Arbitrator ordered the grievant promoted with backpay effective from the date of the original selections.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award: (1) does not draw its essence from the agreement as the Arbitrator exceeded her authority under the parties' agreement; (2) violates management's right to select under section 7106(a)(2)(C); (3) is contrary to the Back Pay Act; (4) to the extent it found disability discrimination, violates section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791; and (5) is based on a nonfact.
First, the Agency maintains that the award does not draw its essence from the agreement because the Arbitrator exceeded her authority by issuing an award that manifestly disregards the parties' agreement. According to the Agency, Article 43, Section 3(b)(4) of the parties' agreement "excludes from the grievance procedure, `non-selection from a properly prepared merit staffing certificate.'" Exceptions at 9. The Agency asserts that the Arbitrator did not find any errors in the preparation of the merit staffing certificate, and therefore had no authority to award a remedy for nonselection under the agreement.
Second, the Agency claims, citing Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union, Chapter 242, 45 FLRA 437 (1992) (FDIC), that unless an arbitrator is enforcing an appropriate arrangement, management's right to select can only be abridged if an arbitrator finds a direct connection between the agency's improper action and the agency's failure to select the grievant for promotion. Here, according to the Agency, the Arbitrator made no such finding.
Third, the Agency claims that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency contends that in order to award backpay the Arbitrator must find both an unwarranted personnel action and "but for" causation. Exceptions at 6. The Agency asserts that while the Arbitrator found preselection on the part of the Agency, she made no finding that the grievant would have been selected for either promotion.
Fourth, the Agency maintains that, to the extent the award found disability discrimination, it violates Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. The Agency, citing Savage v. Department of the Navy, 36 M.S.P.R. 148, 151-52 (1988), asserts that in order to establish a prima facie case of discrimination, the grievant must show that: "(1) she is an `individual with a disability' as defined in 29 C.F.R. § 1614.203(a)(1); (2) she is a `qualified individual with a disability' as defined in 29 C.F.R. § 1614.203(a)(6); and [ v55 p1021 ] (3) there is a nexus between her failure to be promoted and the disability." Exceptions at 8. The Agency argues that the Arbitrator failed to apply this framework for resolving the alleged discrimination.
Lastly, the Agency contends that "[t]he breadth of the [A]rbitrator's erroneous findings is such that had the `facts' been stated correctly [the Arbitrator] would have come to a different conclusion." Id. at 10. Specifically, the Agency takes issue with the Arbitrator's finding that because the selecting official did not state in his written reply that interviews were important, but emphasized the importance of interviews in his testimony, the selecting official's testimony is not believable.
B. Union's Opposition
The Union contends that the Agency's essence argument pertains to the issue of arbitrability. According to the Union, the Arbitrator found that the parties' Settlement Agreement provides an exclusion to Article 43, Section 3(b)(9) of the parties' agreement. [n7] Moreover, the Union, citing American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957 (1994), maintains that the Authority has consistently held that issues of preselection may be arbitrated.
The Union also argues that the award does not violate section 7106(a)(2)(C). According to the Union, the Agency does not have the right to select where the Arbitrator finds a direct connection between the Agency's improper action and the failure to select a specific employee for promotion. The Union asserts that the Arbitrator determined such a direct connection existed "[b]y rejecting the Agency's articulated reason for selecting other candidates[.]" Opposition at 4.
Additionally, the Union contends that the award meets the three requirements of the Back Pay Act: (1) a finding of an unwarranted personnel action, i.e., preselection; (2) economic loss as a result of the unwarranted personnel action, i.e., failure to promote; and (3) a direct connection between the unwarranted personnel action and the economic loss, i.e., grievant would have been promoted.
With respect to the Agency's argument that the award violates Section 501 of the Rehabilitation Act of 1973, the Union maintains that the facts of this case do not "bring this case under the umbrella of the [Rehabilitation] Act." Opposition at 8. According to the Union, the Arbitrator's statement that "evidence of [the Agency's] unwarranted personnel action against the [g]rievant is based, in part, on her medical condition" was just "one more piece of the puzzle, . . . [and] not the most important one at that." Id. The Union claims that, even if the Arbitrator exceeded her authority by making such a finding, it would be harmless error, because she provided other reasons for her finding of preselection.
Finally, the Union contends that, under U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589 (1993) (Lowry Air Force Base), the non-fact "basis for finding an arbitration award deficient does not permit the appealing party to dispute the arbitrator's findings of fact." Opposition at 10. According to the Union, the Agency may not dispute the Arbitrator's finding that the selecting official's testimony is not credible, as the Arbitrator based her findings on inconsistencies in the selecting official's testimony.
A. The Award Draws Its Essence from the Parties' Collective Bargaining Agreement And The Arbitrator Did Not Exceed Her Authority
For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established 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 purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (Department of Labor (OSHA)). The interpretation and application of a collective bargaining agreement is a question solely for the arbitrator in that it is the arbitrator's construction of the agreement for which the parties have bargained. See General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1044 (1992) (GSA, Region 2). [ v55 p1022 ]
The Arbitrator found that the grievance was arbitrable because of her interpretation that a provision of a Settlement Agreement between the parties, provides an exception to Article 43, Section 3(b)(9) of the parties' agreement. It is not possible to assess the plausibility of the Arbitrator's interpretation without examining this Settlement Agreement. Under section 2425.2(d) of the Authority's Regulations, an exception must be a self-contained document that includes all pertinent documents. See American Federation of Government Employees, Local 1151 and U.S. Department of Veterans Affairs, 54 FLRA 20, 25 (1998) (Veterans Affairs). As the Agency has not provided a copy of the Settlement Agreement, we are unable to determine whether the Arbitrator interpreted it in such a way that her Award violated the essence of the parties' agreement. Thus, the agency has not supported its claim that the award did not draw its essence from the parties' agreement.
Insofar as the Agency's argument intends to raise a separate exception that the Arbitrator exceeded her authority, the Agency also has not supported its claim. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996).
In the instant case, the Arbitrator found that a Settlement Agreement provided an exception to the exclusion of grievability set forth in the parties' agreements. However, as previously noted, a copy of the Settlement Agreement is not in the record. It must be noted again that under section 2425.2(d) of the Authority's Regulations, it is the responsibility of the excepting party to provide all necessary documents. Thus, since the Agency did not supply the Agreement, it has not supported its claim that the Arbitrator exceeded her authority and the exception is therefore denied.
B. The Award Is Not Contrary To Management's Right to Select under Section 7106(a)(2)(c)
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). 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, 184 (1998); U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Federation of Government Employees, Local R3-35, 53 FLRA 1426, 1430 (1998).
The Arbitrator found an Agency violation of Articles 16 and 20 of the parties' agreement. In order to apply the analysis required by this precedent, it is essential that the Authority examine the contract provision that the Arbitrator determined was violated. BEP, 53 FLRA at 153. The only portions of Article 16 contained in the record before us are the Preamble, section 1 and section 7(c). The text of Article 20 and Article 16, section 6(d)(1) and (2) are not present. For the same reasons described in section IV. A. of this decision, since the Agency failed to provide the documentation necessary to support its exception, this exception must be denied. See Veterans Affairs, 54 FLRA at 25.
C. The Award is Not Contrary to the Back Pay Act, 5 U.S.C. § 5596
Under the Back Pay Act, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. U.S. Department of Health and Human Services and National Treasury Employee Union, 54 FLRA 1210 (1998) (HHS).
Here, contrary to the assertions of the Agency, the Arbitrator's findings fulfill the criteria under the Back Pay Act. With regard to the first requirement, the Arbitrator found that the Agency's non-selection of the [ v55 p1023 ] Grievant violated the merit staffing principles of Article 16, Sections 7(c)(2) and (3), as well as Article 16, Sections 6(d)(1) and (2) of the parties' agreement. This determination by the Arbitrator that the parties' contract was violated, constitutes a finding that an unwarranted or unjustified personnel action occurred.
As to the second requirement, the Arbitrator found that the Grievant possessed the best combination of education, experience, work traits and job performance of all the candidates for the positions of Staff Assistant and Supervisory Paralegal Specialist. Award at 15-16. The Arbitrator concluded that the grievant would have been selected, but for the Agency's violation of the parties' collective bargaining agreement. Award at 18. Thus, we find that the award of retroactive promotion with backpay complies with the Back Pay Act and we deny the Agency's exception. See U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410 (1990) (upholding award of promotion as valid under the Back Pay Act where the Arbitrator found that the grievant was affected by an unjustified or unwarranted personnel action and that in the absence of discrimination, the grievant would have been awarded the position); Federal Deposit Insurance Corporation and National Treasury Employees Union, 35 FLRA 241 (1990) (award satisfied the requirements of the Back Pay Act where the Arbitrator found that the grievant was denied a promotion partially because of his union activity and that, absent such unjustified action the grievant would have been selected for the position).
D. The Award is Not Based on a Nonfact.
To establish that an award is based on 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. See Lowry Air Force Base, 48 FLRA at 593. However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding 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). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996).
The Agency asserts that clearly erroneous "central fact underlying the arbitrator's decision is her conclusion that the selecting official's explanation for his selection was not believable." Exceptions at 10. In this respect, exceptions which constitute disagreement with an arbitrator's evaluation of evidence and testimony presented, especially the credibility of witnesses and the weight to be given their testimony, provide no basis for finding an award deficient. See Veterans Administration Medical Center, Kansas City, Missouri and American Federation of Government Employees, Locals 2663, 29 FLRA 289, 290 (1987). Moreover, it is clear that the factual matters concerning which the selecting official testified were disputed by the parties at arbitration. Hence, the Agency's exception does not provide a basis for finding the award deficient based on a nonfact, and we therefore deny this exception.
E. The Rehabilitation Act Exception Need Not Be Addressed
An exception disputing a separate and independent ground for the award provides no basis for finding the award deficient when the exception to the arbitrator's other ground for the award has been denied. See, e.g., Indian Educators Federation, New Mexico Federation of Teachers and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque and Navajo Areas, Albuquerque, New Mexico, 53 FLRA 352, 361 (1997). On that basis, the resolution of this exception will not affect the overall disposition of the case, and we do not address the merits of the Agency's argument regarding this matter.
The Agency's exceptions are denied. [ v55 p1024 ]
Decision of Member Cabaniss, dissenting in part:
I respectfully dissent from my colleagues regarding their decision to not address the Rehabilitation Act exception. This exception is not dispositive of the remedy to be afforded this individual grievant. However, I believe that allegations of discrimination falling under 5 U.S.C. 2302(b)(1) are sufficiently important to warrant a full review to ensure that an Agency's culpability (or lack thereof) for having engaged in discrimination is adequately resolved in accordance with established precedent. See, e.g., U.S. Department of Treasury, U.S. Customs Service, El Paso, Texas and National Treasury Employees Union, Chapter 143, 52 FLRA 622 (1996). By not addressing this exception we unnecessarily leave unanswered the outcome of that issue.
Section 1. Preamble
The purpose and intent of this [a]rticle are to ensure that employees are given full and fair consideration for advancement and to ensure selection from among the best-qualified candidates.
The Department and Local 12 also agree to fill positions in the bargaining unit on the basis of merit in accordance with systematic and equitable procedures adopted for this purpose. As a general rule, depending on the requirements of the job to be filled and on the number of highly qualified candidates within the [d]epartment, positions will be filled within the [d]epartment.
It is further agreed that this [a]rticle must be administered in such a way as to develop maximum possible employee confidence and to achieve the purposes of this [a]rticle as simply and efficiently as possible.
C. Validity of Certificates
(1) Certificates are valid until a selection(s) or other decision has been made. If a selectee declines or vacates the position within sixty (60) calendar days of the initial selection, the list of eligibles may be used again to draw up a selection certificate.
(2) Actions under a promotion plan, whether in identification, qualification, evaluation, or selection of candidates or any other phase of the promotion process, shall be made without regard to political, religious, or labor organization affiliation or non-affiliation, marital status, race, color, sex, national origin, disability or age, and shall not be based on any criteria that are not job-related, including favoritism based on personal relationship, patronage, or nepotism.
(3) When requested under Section 10 of this Article, the selecting official shall explain his/her choice in writing on the basis of any one (1) or a combination of the following factors.
(a) The best combination of education and experience required for the job to be filled.
(b) Work traits--such as the ability to work with others, to exert leadership, or to supervise--to the extent they are required by the specific job to be filled.
(c) Past and present job performance as related to the requirements of the job to be filled.
(d) Length of service in the grade below that of the job to be filled, or in a higher grade, to the extent that such service is related to the current requirements of the specific job to be filled.
Footnote # 1 for 55 FLRA No. 166
Footnote # 2 for 55 FLRA No. 166
Footnote # 3 for 55 FLRA No. 166
Article 43, Section 3(b) of the parties' agreement, in pertinent part, provides that the following are excluded from the negotiated grievance procedure: "non-selection from a properly prepared merit staffing certificate" and "filling of a position outside the bargaining unit except for a position which is threshold to the unit."
Footnote # 4 for 55 FLRA No. 166
Footnote # 5 for 55 FLRA No. 166
Footnote # 6 for 55 FLRA No. 166
Footnote # 7 for 55 FLRA No. 166
The Union refers to Article 43, Section 3(b)(9) in making its argument. We assume, however, that based on the language of the section, it was referring to Section 3(b)(4), which appears to be the relevant section.