American Federation of Government Employees, Local 2142 (Union) and United States, Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency)

[ v58 p564 ]

58 FLRA No. 138

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2142
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

0-AR-3606

_____

DECISION

May 28, 2003

_____

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 T. Zane Reeves 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.

      The Arbitrator denied the grievances of two grievants who were not selected for vacant positions. For the reasons discussed below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The two grievants work at the Corpus Christi Army Depot (the Agency). They applied for Aircraft Engine Mechanic positions at the Agency but were not selected. The Union filed a grievance alleging that the employees who were selected, who currently work at the Agency but had previously worked at Kelly Air Force Base, were not referred in accordance with applicable Agency requirements. In essence, the grievance claimed that the Agency was required to give the selected employees Army performance appraisals, and as a result of the Agency's failure to do so, the selected employees submitted Air Force ratings, which did not comply with the Army's minimum ratings requirement. [ v58 p565 ]

      The grievance was not resolved and was submitted to arbitration. The issue presented to the Arbitrator was "whether the Agency violated any law, regulation, or labor/management agreement pertaining to the use of performance appraisals in the subject recruitment action, which directed [sic] resulted in the non-selection of either [g]rievants [sic]?" Award at 2.

      The Arbitrator found that the evidence substantiated the Agency's contention that the selection decision was based on two sources of information: (1) each candidate's application and Supplemental Qualifications Statement (SQS); and (2) the interview process, during which six job-related questions were asked of each candidate. More particularly, as to the SQS, the Arbitrator found that, before job offers are made, a civilian personnel specialist verifies that the employees have received a "fully successful" rating. Id. at 9.

      The Arbitrator further found that he could reverse a management selection decision only if a preponderance of evidence demonstrated that there was a nexus between intentional, improper agency action and the failure to promote an individual. He concluded that there was no evidence that "the interviewers did not perform their duties properly or that the [g]rievants should have been rated more highly during the interview than other applicants." Id. at 11. The Arbitrator also found that "there was no factual evidence presented at the arbitration hearing to corroborate [the Union's] allegations of favoritism and discrimination." Id. at 7.

      Accordingly, the Arbitrator dismissed the grievance "as lacking demonstrated merit through the preponderance of evidence admitted at the arbitration hearing." Id. at 12.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that it "provided sufficient evidence at the hearing to show by [a] preponderance of evidence that their [sic] were violations of Federal Law, Rule, and Regulations that the Arbitrator failed to apply . . . ." Exceptions at 1. Specifically, the Union contends that the Arbitrator erred in applying 5 C.F.R. §§ 335.103, 335.104 and 430.102, as well as Army Regulation (AR) 690-400, because, under these provisions, the selectees were "below the minimum qualification[] levels required for the positions" for which they were being considered. Id. The Union argues that the selectees, who had formerly been employed by the Department of the Air Force, were required to be evaluated under Department of the Army standards because they had been employed by the Army for a reasonable amount of time. The Union also asserts that the grievants met the requirements for selection and that "favoritism . . . played a major role in this case . . . ." Id. at 2.

      The Union further argues that the Arbitrator erred in applying the laws, rules, regulations and collective bargaining agreement provisions governing the completion of the SQS. The Union contends that one of the selectees failed to properly complete his SQS, but was nonetheless selected, while one of the grievants had previously been disqualified for promotion due to the incompleteness of his application. Finally, the Union asserts that the Agency failed to provide it with copies of certain regulations that the Union requested.

B.     Agency's Opposition

      The Agency asserts that the Arbitrator did not find that the Agency violated any law, rule or regulation and the Union's exception does not identify any such violation. The Agency argues that the Union's contention that the former Air Force employees should have received Army appraisals provides no basis for overturning the award. The Agency notes that the Agency's hiring requirements only require submission of the "last performance appraisal." Opposition at 6. It argues that there is no requirement that this appraisal be an Army appraisal, only that it be the employee's last appraisal. The Agency explains that the Air Force uses a rating scheme that is different from the Army's. According to the Agency, the Union did not demonstrate to the Arbitrator that any of the selectees received a performance rating below fully successful and it has not presented any evidence to that effect in its exceptions. The Agency further asserts that the Union's claim that the Agency violated law by selecti