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58 FLRA No. 12
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3239
September 10, 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 Jonathan Dworkin 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 determined that the Agency failed to provide appropriate consideration to internal candidates for a position and awarded two of the candidates priority consideration for the next appropriate vacancy. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
When a public affairs specialist retired, the Agency filled the position by transferring a nonunit employee to the position. The Union filed a grievance which contended that the Agency violated Article 26, Section 7B of the parties' collective bargaining agreement by failing to first consider unit employees for the position. Article 26, Section 7B provides:
For a period of 10 workdays prior to considering candidates from outside the AFGE bargaining unit, the Employer agrees to first consider for selection internal candidates.
As a result of the grievance, the Agency vacated the transfer and announced the position. Nine internal candidates applied for the position, and the Agency's area director considered them for 10 days. He declined to select any of the internal candidates and requested the entire best-qualified list for consideration. That list added the employee originally transferred to the position, and the area director selected her for the position. The Union filed the grievance in this case, which contended that the Agency again violated Article 26, Section 7B. As a remedy, the Union requested that the Agency select a qualified internal candidate for the position.
An abbreviated arbitration hearing was held. Before the Arbitrator, the Agency made an opening statement asserting that the area director considered the internal candidates "in a real and meaningful way," but that he had a clear idea of the "ideal candidate" for the position and that although two of the internal candidates were qualified for the position, they did not meet his idea of the ideal candidate. Award at 4 (quoting opening statement). After the opening statement, in a stipulation, the Union agreed that "management's opening statement represents the testimony that would have been provided by management witnesses." Stipulation of the Parties. After so stipulating, the Union rested its case without presenting evidence or testimony. However, in its post-hearing brief, the Union argued that the consideration given by the area director was not real and meaningful.
In addressing the interpretation and application of Section 7B, the Arbitrator noted that the parties follow the arbitration award of Arbitrator James Stern "as a statement of their rights and responsibilities under Section 7B." Award at 10. Arbitrator Stern had ruled that consideration of internal candidates "must be real and meaningful, not just a rote exercise supposedly meeting a contractual requirement." Id. at 5 (quoting award of Arbitrator Stern). [n1] In Arbitrator Dworkin's view, "[t]here were two pieces to the Stern criteria. The first held that Section 7B appraisals had to be real (e.g., bona fide) and meaningful." Id. at 10. To Arbitrator Dworkin, the second piece placed a burden on management to explain the failure to select from internal candidates once the Union showed that eligible, qualified internal candidates applied.
The Arbitrator found that as stipulated, two of the internal candidates were fully qualified. As to management's burden of proof, the Arbitrator concluded that "[t]he record contain[ed] no evidential basis for arbitral [ v58 p60 ] approval of the selecting officer's decision." Id. at 12. The Arbitrator found that in view of the opening statement as to why the selecting official did not select any internal candidate, to sustain the Agency's position he would have to know the selecting official's image of "ideal." Id. He explained that as a result of the "[t]runcated hearing," there was no evidence of what comprised the ideal candidate. Id. Accordingly, "[d]ue entirely to lack of probative evidence supporting Management's selection of an outside candidate," the Arbitrator sustained the grievance. Id. at 14.
The Arbitrator explained the importance of this evidence by noting that without such information, there was no way of knowing, for example, whether the selecting official was "predisposed to choose" the outside candidate or whether "prohibited selection factors" comprised the official's image of the ideal candidate. Id. at 11-12. In short, he stated that "there may well have been sound, legitimate, unbiased reasons for Management's choice. However, the Arbitrator would have to know what they were for him to issue a decision approving them." Id. at 12.
Addressing the issue of remedy, the Arbitrator ruled that the appropriate remedy was priority consideration for the next vacancy, as negotiated by the parties in Article 26, Section 13 of the agreement for employees who had been deprived of bidding rights because of a procedural, regulatory, or program violation. He rejected the remedy requested by the Union (namely, that the Agency be required to select a qualified internal candidate for the position) because without proof of "a flagrant contractual violation," priority consideration was sufficiently remedial. Id. at 13.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient on four grounds: (1) the award fails to draw its essence from the agreement; (2) the Arbitrator exceeded his authority; (3) the award is based on a nonfact; and (4) the award is contrary to § 7106(a)(2)(C) of the Statute.
The Agency asserts that the award fails to draw its essence from the agreement because the Arbitrator mandated that the Agency had to demonstrate more than real and meaningful consideration under Section 7B. The Agency maintains that Section 7B requires nothing more. Moreover, the Agency argues that even if more than real and meaningful consideration were required, the burden placed on the Agency by the Arbitrator is an implausible interpretation of Section 7B. The Agency maintains that the Arbitrator required the Agency to prove that the selected candidate "was the ideal candidate." Exceptions at 7. The Agency claims that to the contrary, the point of Section 7B is that "non-bargaining unit candidates are not considered during the Section 7B process." Id. In addition, the Agency argues that the Arbitrator was required to accept the parties' stipulation that the selecting official's consideration was real and meaningful.
The Agency asserts that the Arbitrator exceeded his authority by deciding issues that were not submitted to arbitration. The Agency notes that by stipulation, the only issue the Arbitrator was authorized to decide was whether it had violated Section 7B. The Agency claims that by addressing the issues of whether the selection was based on prohibited selection factors and whether the selected employee had been preselected, the Arbitrator exceeded his authority. In addition, the Agency alleges that the Arbitrator "never actually concluded that the Agency violated Section 7B[.]" Id. at 9. Accordingly, the Agency argues that the Arbitrator exceeded his authority when he "allowed [the] grievance." Id. Similarly, the Agency argues that the Arbitrator exceeded his authority by granting priority consideration. The Agency maintains that with no finding by the Arbitrator that the internal candidates had not received fair consideration, priority consideration was not permitted by the parties' collective bargaining agreement.
In contending that the award is based on nonfacts, the Agency first claims that the award is based on the nonfact that it failed to provide internal candidates real and meaningful consideration. The Agency argues that this is a nonfact because the parties stipulated that the internal candidates received real and meaningful consideration and because the Arbitrator accepted the stipulation. Second, the Agency asserts that the award is based on the nonfact that the Arbitrator did not know "what comprised the selecting official's notion of `ideal.'" Id. at 11. The Agency claims that the stipulated facts make clear that the selecting official's benchmark was the manner in which the previous incumbent had performed the job.
Finally, the Agency asserts that the award is contrary to § 7106(a)(2)(C) of the Statute. The Agency acknowledges that the Authority ruled in SSA, North Chicago, "that management's right to select is not infringed upon where the Arbitrator does not require the Agency to select a bargaining unit candidate." Id. at 10. The Agency concedes that "[g]iven the Authority's stated view, it might seem futile for the Agency to argue that . . . [the] Award infringed on its right to select. After all, [the Arbitrator] did not require that the Agency [ v58 p61 ] select a bargaining unit candidate. Nonetheless, [the Arbitrator's] `onus' analysis has placed such an enormous burden on the Agency that, in effect, he has infringed upon management's right to select." Id. The Agency argues that the award "requires the selecting official to demonstrate that the person he selected meets the standard used when evaluating the AFGE-only candidates." Id. In the Agency's view, this infringes on management's right because "the Section 7B analysis is not the same as the analysis the deciding official utilizes when considering the full list." Id.
B. Union's Opposition
The Union contends that the exceptions should be denied because they are an attempt to relitigate this matter before the Authority. In addition, the Union asserts that the Authority "should sanction the Agency for its policy to file exceptions in almost all of its losses at arbitration." Opposition at 2.
IV. Analysis and Conclusions
A. The award does not fail to draw its essence from the agreement.
The Agency's essence exception challenges the Arbitrator's interpretation and application of Section 7B. In reviewing challenges to an arbitrator's interpretation and application of an agreement, we apply the deferential standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., SSA, North Chicago, 56 FLRA at 276. Under this standard, we will find that an award fails to draw its essence from the agreement when the appealing party establishes 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 purposes of the agreement so as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See id.
We find that in arguing that the award fails to draw its essence from the agreement because the Arbitrator mandated more than real and meaningful consideration, the Agency misinterprets the award. The Arbitrator expressly acknowledged that the parties follow the interpretation of Section 7B set forth by Arbitrator Stern that requires consideration of internal candidates to be real and meaningful. In evaluating whether consideration was real and meaningful, Arbitrator Dworkin merely required the Agency to explain the nonselection of internal candidates. Contrary to the allegation of the Agency, by requiring the Agency to explain the basis for the selecting official's decision not to select from internal candidates, the Arbitrator did not require more than real and meaningful consideration under Section 7B and did not require the Agency to prove that the selected candidate was the ideal candidate. Accordingly, the Agency provides no basis for finding that the award fails to draw its essence from the parties' agreement.
To the extent that the Agency is arguing that the Union stipulated that the Agency complied with Section 7B, the Agency also misinterprets the stipulation. Consistent with the plain wording of the stipulation, the Union simply stipulated that the selecting official would testify that his consideration was real and meaningful; the Union did not stipulate that such testimony would be accurate or concede that the Agency complied with Section 7B. Consequently, the stipulation provides no basis for finding the award deficient.
Accordingly, we deny this exception.
B. The Arbitrator did not exceed his authority.
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons not encompassed by the grievance. See, e.g., NATCA, MEBA/NMU, 51 FLRA 993 (1996).
The Agency contends that the award is deficient because the Arbitrator addressed issues of whether the selection was based on prohibited selection factors and whether there was preselection. We find, however, that the Agency again has misinterpreted the award.
The issue addressed and resolved by the Arbitrator was whether the consideration of internal candidates was real and meaningful, as required by Section 7B. He determined that Section 7B was violated because the Agency failed to explain why one of the qualified, internal candidates was not selected. The Arbitrator did not address whether the selection was based on prohibited selection factors or whether there was preselection. The Arbitrator did mention prohibited selection factors and preselection, but solely in explaining why, in resolving whether consideration was real and meaningful, the Agency had the burden of explaining the failure to select from internal candidates.
The Agency also misinterprets the award in contending that the Arbitrator never found a violation of Section 7B. Such a violation is clearly implicit in the Arbitrator's ruling that the Agency failed to meet its burden of proof to establish that its consideration was real and meaningful and is clearly implicit in the Arbitrator's [ v58 p62 ] sustaining of the grievance. To the extent that the Agency is relying on the Arbitrator's finding of no "flagrant contract violation," award at 13, this finding merely examined the magnitude of the violation for purposes of determining an appropriate remedy. Consequently, such a contention provides no basis for finding the award deficient.
The Agency's contention that priority consideration was not authorized similarly provides no basis for finding the award deficient. Because the Arbitrator merely provided the parties' negotiated remedy, to establish that such a remedy is deficient, the Agency would need to demonstrate that the remedy failed to draw its essence from the agreement. The Agency makes no such contention or showing here.
Accordingly, we deny this exception.
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, e.g., SSA, North Chicago, 56 FLRA at 278. An arbitrator's determination as to any factual matter that the parties disputed at arbitration cannot establish that the award was based on a nonfact. See id.
The Agency's alleged nonfact pertaining to the selecting official's interpretation of "ideal" provides no basis for finding the award deficient. As this matter was clearly disputed before the Arbitrator, the Agency's claim cannot establish that the award is based on a nonfact. See id.
As to the Agency's alleged nonfact pertaining to the parties' stipulation, as earlier noted, the Agency has misinterpreted the stipulation. The Union did not stipulate that the Agency complied with Section 7B. Consequently, the Arbitrator's failure to view the stipulation, in the same manner as the Agency, provides no basis for finding the award deficient. See id. (exception denied because appealing party failed to establish that the alleged nonfact "is clearly erroneous, but for which a different result would have been reached by the arbitrator.").
Accordingly, the Agency fails to establish that the award is based on a nonfact, and we deny this exception.
D. The award is not contrary to § 7106(a)(2)(C).
Although it contends that the award is deficient, the Agency concedes that under SSA, North Chicago, the award may not even affect its right to select, much less be contrary to that right. In attempting to explain the alleged deficiency, the Agency asserts that the Arbitrator has burdened management by using the wrong analysis in determining whether the Agency violated Section 7B. The Agency argues, as it did in claiming that the award failed to draw its essence from the agreement, that the award requires management to prove that the selected employee met the selecting official's standard.
As stated earlier, the Agency has misinterpreted the award. In evaluating whether consideration of internal candidates was real and meaningful, the Arbitrator only required the Agency to explain the nonselection of internal candidates. The Arbitrator did not require the Agency to explain why the selected candidate met the selecting official's notion of the ideal candidate. Accordingly, we deny this exception because the Agency has misinterpreted the effect of the award. [n2]
The Agency's exceptions are denied. [n3]
Footnote # 1 for 58 FLRA No. 12
Footnote # 2 for 58 FLRA No. 12
The Authority in SSA, North Chicago concluded that Arbitrator Stern's award affected management's right because it vacated the disputed selection action and ordered the Agency to rerun it, but that the award was not deficient because it satisfied both prongs of the test under United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997). As acknowledged by the Agency, the effect in this case on management's right, if any, is different because Arbitrator Dworkin has not ordered the disputed selection vacated and rerun.
Footnote # 3 for 58 FLRA No. 12
We also deny the Union's request that we sanction the Agency. Neither the Statute nor the Authority's Regulations specifically authorizes sanctioning a party for filing exceptions under § 7122 of the Statute to an arbitration award. See United States Dep't of Veterans Affairs, Nat'l Mem'l Cemetery of the Pacific, 45 FLRA 1164, 1181 n.2 (1992).