United States Department of the Navy, Naval Weapons Station, Yorktown, Virginia (Agency) and National Association of Government Employees, Local R4-1, (Union)

[ v57 p917 ]

57 FLRA No. 192







June 27, 2002


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 James T. Youngblood filed by the Agency under § 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 a grievance alleging that the Agency violated the parties' collective bargaining agreement (cba) and a prior settlement agreement by failing to afford four grievants prior consideration in the filling of a Materials Handling Inspector Supervisor I (MHI Supervisor), WS-6907-09 vacancy. As a remedy, the Arbitrator directed the Agency to select one of the four grievants to fill the next MHI Supervisor vacancy.

      For the following reasons, we conclude that the Agency has not established that the award is deficient. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      In an earlier grievance involving the grievants, the parties settled and the Agency agreed to:

a.     Grant prior consideration to [the grievants] for the current [MHI Supervisor] vacancy . . . in Code 2802 (per . . . [the] 4th step grievance decision dated 9 March 2000). [ v57 p918 ]
b.     Allow the grievants an opportunity to submit an application/resume for review by the selecting official associated with the prior consideration process for the [MHI Supervisor] vacancy. Applications must be submitted . . . no later than the close of business on 9 June 2000 to be eligible for consideration.

Award at 3 (footnote omitted). [n1] 

      Thereafter, the grievants submitted applications for review for the MHI Supervisor vacancy in Code 2802. Later, the Agency's Human Resource Office (HRO) received a request from management for a recruitment action to fill the MHI Supervisor vacancy in Code 2802 mentioned above. The HRO responded by providing management with a Candidate Referral List (CRL) containing just the four grievants, in accordance with prior consideration procedures. The selecting official did not select any of the grievants and wrote "n/s" (not selected) on the CRL. Thereafter, a merit staffing vacancy announcement was posted. The Agency did not notify the grievants that they were not selected for the position. The selecting official subsequently chose a non-grievant to fill the vacancy.

      The grievants filed a grievance under Articles 18 and 19 (the grievance and arbitration provisions) of the cba alleging that the Agency failed to give them prior consideration for the position. The matter was not resolved and thus was submitted to arbitration.

      As relevant here, the Arbitrator stated the issues [n2]  as presented by the Agency as:

Whether, in circumstances where an individual has prior consideration for a specific position vacancy, the agency is obligated to select such an individual pursuant to its obligations in prior consideration actions as defined in the [A]gency's [MSP]s?

and as presented by the Union as:

Did the Agency violate the settlement agreement by not providing the four grievants with Bona Fide Priority Consideration?
If the Agency did violate the [s]ettlement, [w]hat is the remedy?

Id. at 5.

      Before the Arbitrator, the Union argued that by granting prior consideration, the Agency was required to see that the selecting official provided the grievants bona fide consideration within the meaning of the MSP. In addressing the bona fide consideration factor, the Agency "simply state[d] prior consideration does not mean selection" and that it had "complied completely with the requirements of the settlement and the staffing agreement." Id. at 8. One Agency witness testified that prior consideration means that employees "will have their names submitted to the selecting official before other employees[,] and that "this is all that it has ever meant and [that it] did not require selection." Id. at 9.

      The Arbitrator found that prior consideration required bona fide consideration. The Arbitrator further found that the Agency presented no evidence as to whether the selecting official gave the grievants bona fide consideration, and the Agency did not call the selecting official as a witness.

      The Arbitrator interpreted the meaning of the term prior consideration. He stated that whether the consideration "is called prior or priority the meaning is the same." Id. The Arbitrator found the Agency's position, that prior consideration means only that the Agency has to refer employees entitled to such consideration to the selecting official, "[fell] short of fulfilling its obligation created by the [cba], the MSP, and the settlement agreement . . . ." Id. at 11. In the Arbitrator's view, bona fide consideration "places an obligation on the Agency to see that [the employees] are given this consideration." Id. at 12. According to the Arbitrator, it is "insufficient to write n/s . . . on the Candidate Referral document and call for a broader pool of applicants. While there is no mandatory selection contained in the MSP, it does provide for bona fide consideration." Id.

      Interpreting the settlement agreement, the Arbitrator concluded that the Agency had failed to provide the grievants the consideration they deserved as a result of the settlement. He found that the "selecting official without any stated reason did not select the grievants simply because he wanted to expand the pool of applicants. He did not express any dissatisfaction with [ v57 p919 ] [them] . . . ." Id. The Arbitrator stated that, at the very least, "bona fide consideration means that the one entitled to the consideration be given just that, and if qualified be selected, and if not selected be advised of the legitimate reasons why he was not selected." Id.

      The Arbitrator found that the "grievants were not even advised that they were not selected, except by learning . . . that another employee had been selected." Id. The Arbitrator found that the "grievants were more than qualified for this position and one of them should have been selected." Id. Accordingly, he concluded that the Agency violated the cba, the MSP, and the settlement agreement by not providing the grievants with bona fide prior consideration. Therefore, he sustained the grievance.

      Concerning the remedy, the Arbitrator stated that "[a]s the Agency had failed to advance a valid reason why these grievants . . . were not selected . . ., and absent evidence that the grievants are not qualified, . . . I shall direct that the Agency select one of [them] to fill the next [MHI] Supervisor vacancy." Id. at 13.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency contends that the Arbitrator's determination that it must select an employee with prior consideration, if qualified, "fails to draw its essence" from the settlement agreement, the MSP, and established practice. Exceptions at 7. The Agency asserts that the settlement agreement did not define prior consideration and the MSP is the "only written source" that explains the term. Id. The Agency contends that the MSP is not result-oriented as shown by the phrase, "there is no entitlement to selection." Id., Enclosure 3 at 4 (quoting MSP). The Agency asserts that the MSP "is not a government-wide or Navy-wide regulation, it is the product of negotiations between the local [U]nion and the [A]gency." Id. at 5.

      The Agency contends that certain evidence, including the testimony of Agency and Union witnesses, shows that the established practice in prior consideration circumstances does not require selection but only that employees will have their names submitted to the selecting official before other recruitment actions occur.

      The Agency contends that the Arbitrator's statement that "[i]n my view bona fide consideration requires selection, if qualified, otherwise it means nothing[,]" is not supported by the language of the MSP or the established practice. Id. at 9 (quoting award at 13). The Agency asserts, therefore, that the Arbitrator's conclusion is irrational, and evidences a manifest disregard for the MSP. The Agency further contends that in the absence of any MSP provision that requires management to explain decisions not to select prior consideration candidates and contrary to the parties' past practice, the Arbitrator created a requirement that such officials justify their decisions. Based on the above, the Agency contends that the award does not draw its essence from the "[s]ettlement [a]greement and MSP, both of which are the products of negotiations." Id. at 12.

      Second, the Agency contends that the award violates its right to select employees under § 7106(a)(2)(C) of the Statute. According to the Agency, the award leaves it no discretion because management must select one of the grievants for the position. The Agency asserts that the award prevents it from seeking to fill the position from other sources, deprives it of the discretion to leave the position unfilled due to fiscal limitations or other circumstances, such as manpower or hiring limitations, and prevents it from determining the knowledge, skills, and abilities necessary to perform the work of the position.

      The Agency cites United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), and argues that the award does not satisfy the two-prong test set forth in this case. According to the Agency, its action in not selecting the grievants and not explaining its decision is consistent with the settlement agreement and the MSP, and, therefore, does not violate any law or contractual provision as required by prong I of the test. The Agency asserts that even though consideration of a remedy is unnecessary, the Arbitrator did not attempt to reconstruct the Agency's selection decision and thus, the award does not satisfy prong II.

B.     Union's Opposition

      The Union asserts that the Agency has not shown that the Arbitrator manifestly disregarded language in the settlement agreement, the MSP, or past practice. The Union asserts that the Agency's position is inconsistent with the MSP, which provides that employees are entitled to bona fide consideration. The Union contends that the Agency made no argument as to how its consideration of the grievants was bona fide, but only claimed that selection is not guaranteed.

      The Union further challenges the Agency's contention that the award is inconsistent with past practice because employees with prior consideration have not been selected in the past. According to the Union, it is possible that an employee may qualify to be considered [ v57 p920 ] for a position but be unsuited to be selected. The Union asserts that the Agency made no attempt to argue such reason here because the record was clear that there was none.

      The Union contends that the award is consistent with the two-prong test in BEP and the Arbitrator's remedy does not force the Agency to alter its budget or organizational structure.

IV.     Analysis and Conclusions

A.     The Award Draws Its Essence from the Parties' Agreements and Established Past Practice

      Based on the Agency's assertions, the MSP is construed as a negotiated agreement between the parties.

      In reviewing an arbitrator's interpretation of an agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See AFGE, Local 3369, 55 FLRA 1074, 1077 (1999). Under this standard, the Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award 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) the award does not represent a plausible interpretation of the agreement; or (4) the award evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). The courts and the Authority defer to the arbitrator's interpretation "because it is the arbitrator's construction of the agreement for which the parties have bargained." OSHA, 34 FLRA at 576.

      Also, in the context where a party argues that an award is deficient because the arbitrator failed to recognize a past practice, the Authority considers the party's assertion regarding past practice as a matter of contract interpretation. See AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 101 (2001) (AFGE, Local 4044).

      As reflected above in Section II., the Arbitrator did not disregard the wording of the MSP agreement. Rather, his decision requiring the Agency to select one of the grievants to fill the next MHI Supervisor vacancy was based on his interpretation of the settlement and MSP agreements, his determination that the grievants were entitled to bona fide consideration, as provided by the MSP, and his finding that the Agency failed to present any evidence to show that the selecting official gave the grievants "bona fide consideration" or that they were not qualified for the position. Also, the Arbitrator's finding that the grievants should have been advised why they were not selected was used to support his determination that the Agency failed to advance any evidence that the selecting official "gave the grievants bona fide consideration" or any "valid reason why these grievants who were entitled to [such] consideration were not selected" for the subject position. Award at 8 and 13.

      We find, therefore, that the Agency has failed to establish that the Arbitrator's determination that the Agency should have afforded "bona fide consideration" to the grievants but failed to do so, and his order that the Agency select one of the grievants to fill the next MHI Supervisor vacancy, are implausible, irrational, or in manifest disregard of the parties' agreements, or that such determination ignored an established practice. See AFGE, Local 4044, 57 FLRA at 101-02. Accordingly, this exception provides no basis for finding the award deficient.

B.     The Award Does Not Violate Management's Right to Select Employees under § 7106(a)(2)(C) of the Statute

      The Agency's exception that the award is contrary to management's right to select employees under § 7106(a)(2)(C) of the Statute challenges the award's consistency with law. Therefore, the Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. 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)). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings.

      When an agency asserts that an award conflicts with management's rights under § 7106(a) of the Statute, the Authority applies the framework set forth in BEP. Upon a finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test. Under prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If the award provides such a remedy, then the Authority will find that the award satisfies [ v57 p921 ] prong I and will 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.

1.     The Award Affects Management's Right to Select

      The Agency asserts that the award deprives it of the right to select because it requires management to select one of the grievants for the next MHI Supervisor vacancy. The Authority has held that an award requiring an agency to make an actual selection for an appointment affects management's right to select under § 7106(a)(2)(C) of the Statute. See, e.g., Social Security Admin., Woodlawn, Md., 54 FLRA 1570, 1577 (1998) (Authority held that an award which placed the grievant in a position affected management's right to select). Here, the award directs the Agency to select one of the grievants to fill the next MHI Supervisor vacancy. Based on Authority precedent, the award affects management's right to select.

2.     The Award Satisfies Prong I and II of BEP

      The Authority has consistently held, insofar as exceptions challenging awards requiring the selection of grievants with priority consideration are concerned, that contractual provisions affording such consideration constitute appropriate arrangements under § 7106(b)(3) of the Statute. See, e.g., Social Security Admin., Chicago Region, Cleveland Ohio District Office, University Circle Branch, 56 FLRA 1084, 1090 (2001) (SSA, Cleveland Ohio District Office); Social Security Admin., Branch Office, East Liverpool, Oh., 54 FLRA 142, 147-48 (1998) (SSA, East Liverpool).

      In this case, the Arbitrator directed the Agency to place one of the grievants in the next MHI Supervisor vacancy to remedy the Agency's violation of the "[cba], the MSP, and settlement" agreements. Award at 13. As interpreted by the Arbitrator, the settlement agreement required the Agency to grant the grievants prior consideration and the MSP required the selecting official to give them bona fide consideration for the subject vacancy. The Arbitrator's interpretation of the agreements and his finding that the Agency violated the agreements demonstrate that the Arbitrator was enforcing provisions in the parties' agreements that constitute appropriate arrangements within the meaning of § 7106(b)(3) of the Statute. See SSA, Cleveland Ohio District Office, 56 FLRA at 1090; SSA, East Liverpool, 54 FLRA at 147-48. Thus, prong I of BEP has been satisfied.

      As to prong II, the Arbitrator, noting that the Agency presented no arguments that the grievants were not qualified, found that one of the grievants would have been selected if true prior consideration had been afforded them. Therefore, the Agency's failure to provide them prior consideration violated the parties' agreements. To remedy this violation, he ordered the Agency to select one of the grievants to fill the next MHI Supervisor vacancy. The award, thus, constitutes a reconstruction of what the Agency would have done if it had not violated the parties' agreements. See SSA, Cleveland Ohio District Office, 56 FLRA at 1090; SSA, East Liverpool, 54 FLRA at 147-48.

      To the extent that the Agency claims that the award affects management's discretion to leave a position unfilled, the award does not deprive the Agency of such discretion. The award only requires the Agency to select one of the grieva