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57 FLRA No. 130
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1658
U.S. DEPARTMENT OF THE ARMY
ARMY TANK-AUTOMOTIVE COMMAND
AND ARMAMENTS COMMAND
December 21, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Donald F. Sugerman filed by the Union under § 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.
This case concerns a grievant's non-selection for a job vacancy. The Arbitrator found that absent a showing of impropriety in the selection process, a grievance alleging non-selection for promotion is not grievable under the parties' collective bargaining agreement. The Arbitrator examined the Union's allegations that the selection process was improper, and found no merit to the allegations. He therefore concluded that the case was solely about the grievant's non-selection, and granted the Agency's motion to dismiss the grievance on the ground that it was not arbitrable.
For the reasons that follow, we find that the Union has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency advertised six position vacancies for a GS-12 Quality Assurance Specialist Auto position. The grievant applied for the position by submitting his resume. Resumes were processed by "RESUMIX," a computerized review and screening tool used to determine which candidates are qualified for a position.
RESUMIX identifies individuals whose resumes match skills considered desirable or mandatory by the selecting official. The grievant was deemed qualified, having matched five of the six desirable skills. He was included along with twenty other qualified applicants on a certified list. A candidate who matched any one of the skills was included; the selecting official was not told how many skills were matched by each candidate.
An interview panel was formed, and eleven interview questions were drafted. The panel agreed to rank the candidates for each question, and after each interview scores were recorded and totaled, and the candidates were ranked based on their scores. The six candidates with the highest scores were selected. The grievant ranked ninth of the eighteen candidates who were interviewed.
After the selection, the panel members destroyed their personal interview notes. However, the Agency retained a selection package, which consisted of "those individuals interested in the position, those that declined to be interviewed, the candidates selected, and information on the selection criteria utilized." Award at 15. Documentation of the selection process also included "the interview questions, the scoring system, the scores for each candidate on each question, and the total score for each candidate." Id.
The Union filed a grievance challenging the selection process and requesting a retroactive promotion for the grievant. The Agency denied the grievance on the ground that it was excluded from the grievance process under Article 33, Section (C)11 of the parties' agreement, which excludes from coverage under the negotiated grievance procedure "[n]on-selection for promotion from a group of properly ranked and certified candidates." Id. at 7.
The Arbitrator stated that the threshold issue was whether the matter was subject to the grievance process. In this regard, the Arbitrator stated that the parties agreed that if there is a violation of laws, rules and regulations, including merit promotion law procedures, the issue is no longer non-selection, but rather the process itself. He ruled that "while a challenge to the non-selection of a grievant is not arbitrable, a challenge to the [ v57 p659 ] fairness of the process used by the Agency to make its selection is arbitrable." Id. at 10. Therefore, he addressed the Union's allegations.
The Arbitrator considered claims by the Union that the RESUMIX system does not properly rank candidates; that the Agency preselected certain candidates and "slanted" the selection process; and that the Agency destroyed interview notes which were required to be made available to the grievant pursuant to 5 C.F.R. § 335.103(b)(5) [n1] and Article 36, Sections C and G of the parties' collective bargaining agreement. [n2] Id.
As to the first claim, the Arbitrator found that the parties had agreed in a memorandum of understanding to use the RESUMIX system for candidate evaluation. The Arbitrator found that since the Union had agreed to the system's use, he could find no basis for questioning its reliability or challenging its use.
With respect to the second claim, the Arbitrator found that "pre-selection ha[d] not been substantiated or proven in this case." Id. at 12. In this regard, the Arbitrator rejected the Union's claims that the interview questions were designed to "mirror the resumes of those [allegedly] pre-selected candidates[,]" and that the interview questions were not related to the job requirements. Id. Further, the Arbitrator found that the Union had not offered any motive for preselection, and that there was no evidence that the selected candidates did not have qualifications for the positions or that the grievant was as, or more, qualified than they were.
Finally, the Arbitrator rejected the Union's claim that the Agency did not maintain appropriate documentation necessary for reconstruction of the promotion actions because the selecting official and interview panel members destroyed their personal interview notes. The Arbitrator found that the documentation retained by the Agency, including the list of individuals interested in the position, those who declined to be interviewed, the candidates selected, and information on the selection criteria utilized, as well as the interview questions, the scoring system, the scores for each candidate on each question, and the total score for each candidate, constituted information sufficient to reconstruct the selection process. In addition, the Arbitrator found that the Union cited no law, rule, or regulation that specifically required the maintenance of interview notes. He determined that he could not find that destruction of the interview notes "in any way contaminate[d] the selection process." Id. at 16.
In sum, the Arbitrator concluded that the Agency did not violate any laws, rules or regulations in the selection process, and that this case was "solely about the non-selection for promotion of the [g]rievant. As non-selection for promotion is excluded from the grievance process," the Arbitrator granted the Agency's motion to dismiss the grievance as not arbitrable. Id. at 17.
III. Positions of the Parties
A. Union's Exceptions
The Union claims that the award is contrary to law. According to the Union, "the Arbitrator's finding of no pre-selection is contrary to 5 USC 2302(b)(6), [n3] Article 36, Section D of the [parties' agreement and] TACOM-R 600-5, Chapter 15-4b and e." Exceptions at 4. The Union asserts that the Agency violated these provisions "when it engaged in pre-selection and tainted the selection process to ensure selection of the 6 candidates." Id. In this regard, the Union asserts that testimony of the selecting official and panel members was inconsistent, and that other evidence also supports a finding of pre-selection. The Union also claims that destruction of the interview notes was contrary to law, citing 5 C.F.R. § 335.103(b)(5), Department of the Army regulations, and Article 36 G and 36 L of the parties' agreement, requiring the Agency to maintain certain documents.
The Union also contends that the award is based on non-facts. The Union asserts that the Arbitrator misstated certain facts and "based his decision on conflicting and undocumented testimony of Agency witnesses while dismissing undisputed, documented evidence presented by the Union." Id. at 1.
Finally, the Union alleges that the Arbitrator was biased. According to the Union, the Arbitrator demonstrated bias "against the Union by ignoring the flagrant [ v57 p660 ] Agency procedural violations and other improprieties that occurred" in this case. Id.
B. Agency's Opposition
The Agency contends that the Union's exceptions present the same arguments that were made to the Arbitrator and constitute an attempt to relitigate the merits of the case. The Agency asserts that the Union has failed to show that pre-selection ever occurred, or that the Agency violated any laws, rules, regulations, or the collective bargaining agreement. The Agency also claims that the Union has failed to show, under applicable Authority precedent, either that the award is based on a non-fact or that the Arbitrator was biased.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law
An allegation that an award is contrary to law requires de novo review. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with applicable standards of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).
The Union's allegation that the award is contrary to 5 U.S.C. § 2302(b)(6) is without merit. A prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(6) requires an intentional or "purposeful taking of a personnel action in such a way as to give preference to a particular individual for the purpose of improving her prospects for employment." NFFE, Local 1658, 55 FLRA 668, 672 (1999) (citing Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993)). Section 2302(b)(6) does not require that an unauthorized promotion actually result in an advantage, but only that the purpose of the personnel action be to give an advantage. See NFFE, Local 1658, 55 FLRA at 672 (citing Special Counsel v. DeFord, 28 M.S.P.R. 98, 104-05 (1985)). Where an arbitrator finds that there is no evidence indicating that the agency's consideration of an applicant was the result of a personnel action intended to give the applicant a preference, the Authority will hold that the award is not contrary to § 2302(b)(6). See NFFE, Local 1658, 55 FLRA at 672.
The Arbitrator found that "pre-selection ha[d] not been substantiated or proven in this case." Award at 12. In so finding, the Arbitrator rejected the Union's allegations that the interview questions were designed to "mirror the resumes of those [allegedly] pre-selected candidates[,]" and that the interview questions were not related to the job requirements. Id. Further, the Arbitrator found that the Union had not offered any motive for preselection, and that there was no evidence that the selected candidates did not have qualifications for the positions or that the grievant was as, or more, qualified than they were. Accordingly, we deny this portion of the exception.
The Union also claims that destruction of the interview notes was contrary to law, including portions of the C.F.R. and Agency regulations requiring maintenance of certain documents. This claim is without merit because, as the Arbitrator correctly found, nothing in the cited provisions specifically requires the Agency to retain interview notes.
B. The Award Draws Its Essence From the Agreement
The Union asserts that the award is contrary to Article 36 G and L because the Agency failed to maintain certain documents. [n4] For an award to be found deficient as failing to draw its essence from the 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 agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Center, New Cumberland, Pa., 55 FLRA 1303, 1307 (2000) (then-Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Union has not demonstrated that the Arbitrator's award fails to meet any of the above tests. The Union's argument is a restatement of the argument made before the Arbitrator that the destruction of interview notes made reconstruction of the selection impossible. The Arbitrator concluded that the documentation that remains is sufficient to reconstruct the promotion. We defer to the underlying factual findings of the Arbitrator. Moreover, nothing in Article 36 G and L specifically requires the Agency to retain interview notes. [n5]
Accordingly, we deny the exception. [ v57 p661 ]
C. The Award Is Not Based On A Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594.
The Union alleges, for a variety of reasons, that the Arbitrator erred in finding that there was no preselection. However, this issue was clearly disputed before the Arbitrator. As such, the Union's exception does not provide a basis for finding the award deficient. See United States Dep't of Defense Dependents Schools, 55 FLRA 1108, 1111 (1999). Accordingly, we deny the exception.
D. The Award Is Not Deficient Because Of Bias
To demonstrate that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Med. Ctr., North Chicago, Ill., 52 FLRA 387, 398 (1996).
The specific facts and evidence presented by the Union to support its exception fail to establish bias on the part of the Arbitrator. Nothing in the Union's argument demonstrates that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. Accordingly, we deny this exception. See General Services Administration, 53 FLRA 925, 938 (1997).
The Union's exceptions are denied.
Article 36, Section C of the parties' agreement provides in relevant part:
Selective placement factors may be used to determine basic eligibility provided they are related to the position to be filled. . . . If used, they will be maintained with the promotion records.
Article 36, Section D provides in relevant part:
Appropriate job merit evaluation criteria must be used to differentiate among a large group of eligible candidates so as to identify the best qualified ones. . . . Qualifications will not be established to intentionally eliminate an employee(s) from consideration, or intentionally parallel the experience and qualifications of a particular individual. Experience, awards and education must be specifically related to the job sought. Except as required by law, regulation or proper authority, as stated in Article 4, Section A, the Employer agrees to avoid the use of information not relevant to the duties and responsibilities of the position, such as suspensions, debt complaints, use of approved leave, voluntary registration in an alcohol/drug rehabilitation program and reprimands, in evaluation for qualification, ranking and rating.
Article 36, Section G provides in relevant part:
An employee and/or Union shall have access, consistent with law, government-wide rule, or regulation, to all pertinent records used in the process of filling vacancies which are requested for the purpose of processing or filing a grievance, EEO complaint, or other appeal.
Article 36, Section L provides:
Upon request the individual employee will be released rating panel information which applies specifically to himself/herself.
5 U.S.C. § 2302(b)(6) provides:
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-
. . . .
(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment[.] [ v57 p662 ]
Agency regulation TACOM-R 600-5 provides in relevant part:
No official will, in selecting candidates or in operating the promotion program, show or give preference to any candidate based on personal relationship or other types of personal favoritism or patronage.
Preselection of specific persons or the use of selective factors designed to narrow the field of potential candidates to a specific person will not be permitted.
Footnote # 1 for 57 FLRA No. 130
. . . Each agency must maintain a temporary record of each promotion sufficient to allow reconstruction of the promotion action, including documentation on how candidates were rated and ranked. . . .
Footnote # 2 for 57 FLRA No. 130
Footnote # 3 for 57 FLRA No. 130
The Union also states that the award is contrary to 5 U.S.C. § 2301(a)(1) and (b)(2), but does not address those sections further. We find that those claims are bare assertions, and in accordance with Authority precedent they must be denied. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000).
Footnote # 4 for 57 FLRA No. 130
A claim that an award is contrary to a negotiated agreement is considered to be an assertion that the award does not draw its essence from the agreement, and will be so analyzed. See, e.g., NFFE, Local 1904, 56 FLRA 196, 199 (2000); Social Security Administration, Baltimore, Md., 55 FLRA 1063, 1070 (1999).
Footnote # 5 for 57 FLRA No. 130
The Union also claims that the Agency's alleged pre-selection is contrary to law because it is contrary to Article 36 D of the negotiated agreement. As noted above, a claim that an award is contrary to a negotiated agreement is considered to be an assertion that the award does not draw its essence from the agreement. Under the standard set forth above, and deferring to the Arbitrator's underlying factual finding that there was no preselection, this claim does not demonstrate that the award is deficient.