Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia (Agency) and International Federation of Professional and Technical Engineers, Association of Administrative Law Judges (Union)

[ v59 p507 ]

59 FLRA No. 83

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA
(Agency)

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS
ASSOCIATION OF
ADMINISTRATIVE LAW JUDGES
(Union)

0-AR-3660

_____

DECISION

December 15, 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 Salvatore J. Arrigo 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 violated the parties' collective bargaining agreement by failing to consider incumbent administrative law judges (ALJs) for reassignment before hiring new judges for various office locations. For the following reasons, we find that two of the Agency's exceptions are barred by § 2429.5 of the Authority's Regulations and that the other exception provides no basis for finding the award deficient.

II.      Background and Arbitrator's Award

      In early 2001, the Agency decided that it needed 120 new ALJs. Before asking the Office of Personnel Management (OPM) for a certificate of eligible ALJs candidates from outside the Agency, the Agency reviewed its list of its own ALJs who had requested reassignment under the Agency's then-existing reassignment policy. As a result, the Agency reassigned eight of its own ALJs. On March 12, 2001, [n1]  the Agency asked OPM for a certificate of eligible candidates for 120 other ALJ positions at 82 possible office locations.

      On March 14, OPM provided the Agency with a certificate that listed 273 applicants and the locations at which they wished to work. However, on April 13, OPM instructed the Agency not to make any selections from the certificate because of litigation before the Merit Systems Protection Board involving OPM's scoring formula for the ALJ examination.

      While the Agency awaited further instructions from OPM, the Agency and the Union reached agreement on an initial collective bargaining agreement. The agreement took effect on August 30. Article 20, Paragraph I of the agreement established a new policy for the reassignment of the Agency's ALJs. [n2]  It also provided for the initial implementation of the reassignment register and directed that the initial register would be established within 30 days after the effective date of the agreement (i.e., by September 29).

      On September 24, OPM authorized the Agency to make appointments from the March 14 certificate. Beginning the same day, the Agency offered employment to applicants from the March 14 certificate. The Agency did not consider reassigning its own ALJs under either its former reassignment policy or the new contractual register, which was still being established.

      After evaluating the results from the offers of employment, the Agency designated additional vacancies at six offices listed on the March 14 certificate. In filling these vacancies, the Agency considered the reassignment requests from the new contractual register. Only one of the six offices was the subject of a reassignment request, and the Agency used the new contractual register to staff the vacancy in that office. The remaining vacancies were filled from the March 14 certificate.

      All of the ALJs hired from the March 14 register began employment with the Agency on October 21. Subsequently, the Union filed a grievance alleging that the Agency violated the new collective bargaining agreement by hiring new judges for specific offices without first providing the Agency's ALJs the opportunity to be reassigned to those offices pursuant to the new contractual reassignment register. [n3]  The Agency responded that it used the new contractual register in filling the last six vacancies and that it did not have to use the new contractual register for the other selections [ v59 p508 ] because Article 20 was not in effect at the time of these selections. The grievance was not resolved and was submitted to arbitration.

      In the Arbitrator's view, the basic issue was whether the Agency was required to apply Article 20 when it hired new ALJs after August 30, the effective date of the parties' new agreement. He concluded that the Agency was required to apply Article 20 and that, consequently, it failed to fulfill its contractual obligations.

      The Arbitrator rejected the Agency's claim that the terms of Article 20 did not become effective until September 29, after the new contractual register was established. The Arbitrator ruled that regardless of the extent of the hiring process for new judges that had already occurred, by signing the collective bargaining agreement with no reference to prior selection actions, the Agency was obligated, as of August 30, to consider its own ALJs for reassignment before hiring new judges for specific locations. However, the Arbitrator rejected the Union's additional claim that the Agency was obligated to post notice of the last six vacancies pursuant to Article 20, Paragraph I, Section 4.

      The Arbitrator concluded that 23 of the Agency's ALJs were adversely affected by the Agency's actions because they were on the new contractual reassignment register for a location that was filled by a newly hired judge. As a remedy, the Arbitrator ordered the Agency to give these ALJs the opportunity to transfer to their designated locations. In addition, the Arbitrator ordered locality pay for any ALJ who accepts a reassignment to a locality that has higher locality pay than the locality where the judge is currently located, retroactive to October 21, the date on which new ALJs began employment with the Agency.

III.     Positions of the Parties

A.      The Agency

      The Agency contends that the award is deficient because the award is contrary to § 7106 of the Statute and fails to draw its essence from the agreement and because the Arbitrator exceeded his authority.

1.     Section 7106

      The Agency contends that the award is contrary to management's rights under § 7106 of the Statute. Under § 7106(a), the Agency asserts that the award is contrary to management's right to assign work, to make selections for appointment, and to determine the personnel by which agency operations will be conducted under § 7106(a)(2)(B) and (C). Under § 7106(b)(1), the Agency asserts that the award is contrary to management's right to determine its staffing patterns.

      With respect to § 7106(a), the Agency argues that the award affects its rights to make selections for appointment, assign work, and determine the personnel by which agency operations will be conducted. The Agency maintains that the award fails to satisfy prong I under the framework set forth by the Authority in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997), because Article 20 is not enforceable as either a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3). The Agency further maintains that the award fails to satisfy prong II because the reassignment of 23 judges does not reflect reconstruction of what it would have done had it acted properly.

      With respect to § 7106(b)(1), the Agency argues that the award has a direct impact on the Agency's staffing patterns because the award requires it to reassign 23 incumbent ALJs to positions that have been filled with newly hired ALJs.

2.     Exceeded authority

      The Agency contends that the Arbitrator exceeded his authority by ordering retroactive locality pay. The Agency maintains that none of the ALJs has worked in the locality for which they will receive locality pay and that consequently, none of the judges has experienced the pay disparity that locality pay is intended to remedy. Accordingly, the Agency asserts that the award of retroactive locality pay is unauthorized because it contravenes the intended purpose for which such pay was instituted.

3.     Essence

      The Agency contends that the award fails to draw its essence from the agreement by ignoring the plain language of Article 20, Paragraph I, Section 1.C., which requires the Agency to consider reassigning incumbent ALJs "[p]rior to considering the assignment of newly hired Judges to a hearing office . . . ." The Agency maintains that the Arbitrator interpreted Section 1.C. to require the Agency to consider incumbent ALJs on the [ v59 p509 ] new register before hiring new ALJs to fill vacancies in specific hearing office locations.

      The Agency asserts that the difference between the terms "before hiring" new ALJs and "[p]rior to considering the assignment" of new ALJs is of such critical significance in fixing the point in time that the Agency is required to consider reassignment requests that, by ignoring the difference, the award is deficient. The Agency further claims that the Arbitrator's interpretation disregards the purpose of Section 1.C. as mutually understood by the parties and as reflected by the bargaining history.

      The Agency explains that during the course of negotiations, its negotiators made it clear to union negotiators that consideration of reassigning incumbent judges had to take place after the Agency determined that it needed to hire new ALJs to fill vacancies at specific locations, but before the Agency requested from OPM a certificate of eligibles for specific locations. The Agency notes that its negotiators indicated that this was necessary because any requirement that vacancies be offered to incumbents after a certificate was requested from OPM would result in the inability to fill the vacancy created by a reassignment unless the certificate contained candidates who had expressed a desire to accept an appointment at that location. The Agency maintains that as a result, the Union ultimately agreed to the language set forth in Section 1.C., which requires consideration of reassignment of incumbent judges "prior to considering the assignment of newly hired Judges to a hearing office" rather than before hiring new judges.

      The Agency also asserts that the Arbitrator disregarded the clear mutual intent of the parties to codify in Section 1.C. the Agency reassignment policy. The Agency maintains that the longstanding practice under this policy was for the Agency to consider reassignment requests to locations where it determined that vacancies existed immediately before requesting a certificate of eligibles from OPM.

      The Agency maintains that the Arbitrator should have found that the Agency was not contractually bound to consider incumbent judges for reassignment because the Agency considered the assignment of newly hired judges and requested a certificate of eligibles in February and March, well before the effective date of the collective bargaining agreement. The Agency asserts that instead, the award impedes the very hiring process of which the reassignments were but a minor part.

B.     Union's Opposition

      The Union first contends that under § 2429.5 of the Authority's Regulations, the Agency's exceptions should not be considered by the Authority because the issues raised by the exceptions were not raised to the Arbitrator. The Union asserts that the Agency never made any argument, or introduced any evidence to show, that the transfers would violate management rights or contravene the essence of the collective bargaining agreement. The Union also asserts that the Agency claims for the first time in its exceptions that a backpay remedy of retroactive locality pay is not within the Arbitrator's authority.

      In opposition to the merits of the Agency's exceptions, the Union contends that the award draws its essence from the agreement and is not contrary to management rights and that the remedy of retroactive locality pay is fully consistent with the Back Pay Act, 5 U.S.C. § 5596.

IV.      Analysis and Conclusions

A.      Section 2429.5 of the Authority's Regulations

      Section 2429.5 bars Authority consideration of any issues that could have been, but were not, presented to the arbitrator. The Union asserts that the Agency claims for the first time in its exception that a remedy of retroactive locality pay is not within the Arbitrator's authority. The Union also asserts that the Agency never made any argument, or introduced any evidence to show, that the transfers would violate management rights or contravene the essence of the collective bargaining agreement.

      With regard to the Union's first claim, during the arbitration hearing, the Union specifically claimed that an appropriate remedy for the violation of Article 20 must include the remedy of retroactive locality pay. See August 26 Transcript at 194-95. However, there is no indication in the record that the Agency argued to the Arbitrator, as it has in its exception, that such a remedy was not authorized because it would contravene the intended purpose for which locality pay was instituted. Accordingly, we dismiss this exception because its consideration is barred by § 2429.5. See, e.g., AFGE Local 1546, 59 FLRA 126 (2003).

      With regard to the Union's second claim, the Arbitrator found that the Agency violated Article 20, Paragraph I, Section 1.C., but that the Agency did not violate Section 4. The record reflects that in its post-hearing brief, the Agency contended that the grievant's argument that the Agency was required to comply [ v59 p510 ] with the posting requirements of Article 20, Paragraph I, Section 4 of the agreement should be rejected because a posting would conflict with management's right to hire and to fill positions under § 7106(a)(2)(A) and (C). See Post-hearing Brief at 28. However, there is no indication in the record that the Agency argued to the Arbitrator, as it has in its exception, that application of Section 1.C. to the disputed vacancies would violate management's rights to assign work, to make selections for appointment, or to determine the personnel by which agency operations would be conducted under § 7106(a)(2)(B) and (C) or management's right to determine its staffing patterns under § 7106(b)(1). Accordingly, we also dismiss this exception under § 2429.5.

      Finally, the Agency clearly argued in its post-hearing brief that the plain words of Section 1.C. require that consideration of incumbent judges for reassignment be given prior to considering the assignment of newly hired judges. See Post-hearing Brief at 13-14. Accordingly, the Agency asserted to the Arbitrator the same interpretation of Section 1.C. that it is asserting in its essence exception. Consequently, we reject the Union's argument that the Agency's essence exception is barred by § 2429.5, and we resolve the merits of this exception.

B.     The award does not fail to draw its essence from the collective bargaining agreement.

      The Authority will find an award deficient because the award fails to draw its essence from the collective bargaining agreement only when it is established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). These standards make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement merely because one party believes that the arbitrator misinterpreted the agreement. The question of the interpretation of the collective bargaining agreement is a question for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. See id. at 575-76.

      The Arbitrator interpreted Section 1.C. to require the Agency to consider the reassignment of incumbent judges before it hired new judges. The Agency claims that the Arbitrator's interpretation is deficient because it fails to draw its essence from Section 1.C., which requires the Agency to consider reassigning incumbent ALJs prior to considering the assignment of newly hired ALJs to a hearing office.

      The Arbitrator applied Section 1.C. to the circumstances in this case, where the agreement became effective after some of the delayed hiring process had already occurred, but before offers of employment were extended and new ALJs hired. The Arbitrator ruled that regardless of the extent of the hiring process for new judges that had already occurred, by signing the collective bargaining agreement with no reference to prior selection actions, the Agency was obligated, as of August 30, to consider its own ALJs for reassignment before hiring new judges for specific locations. Since nothing in Section 1.C. specifically addressed how the provision was to be applied in the circumstances of this case, the Arbitrator was not precluded from interpreting and applying the provision in the manner that he did. Accordingly, the Agency's argument fails to establish that the Arbitrator's interpretation of Section 1.C. was irrational, implausible, or unfounded.

      The Agency's other arguments also fail to establish that the award is deficient. The Agency claims that its interpretation of Section 1.C. was mutually understood by the parties as reflected in the bargaining history. The Agency maintains that the Union agreed to the language of Section 1.C. after Agency negotiators made clear that consideration of incumbent judges had to take place before the Agency requested an OPM certificate. However, the record does not support the Agency's contention, and as such the Agency's reliance on the parties' bargaining history fails to establish that the Arbitrator's interpretation of Section 1.C. is irrational, unfounded, or implausible.

      Accordingly, we deny this exception.

V.      Decision

      The Agency's essence exception is denied. The Agency's exceeded authority and contrary to law exceptions are dismissed. [ v59 p511 ]


Appendix

      Article 20, Paragraph I pertinently provides, as follows:

I.      Reassignments
To establish a uniform policy for the non-reimbursable reassignment of Judges the following provisions shall apply.
Section 1
. . . .
C.     Prior to considering the assignment of newly hired Judges to a hearing office, the [Agency] will give first consideration for one reassignment to that hearing office to the incumbent Judge who is first on the reassignment register for that hearing office pursuant to these provisions. . . .
. . . .
Section 3
Initial implementation of Sections 1 and 2 above regarding the establishment of the reassignment register by hearing office will occur within thirty (30) days after the effective date of this agreement. . . .
Section 4
When there are no qualified Judges on the register for a new or existing hearing office and the Agency has decided to reassign Judges to that office, a posting period of fifteen (15) working days will be established. . . .



Footnote # 1 for 59 FLRA No. 83 - Authority's Decision

   All subsequent dates are also 2001.


Footnote # 2 for 59 FLRA No. 83 - Autho