United States Department of Energy, Office of Scientific and Technical Information, Oak Ridge, Tennessee (Agency) and Office and Professional Employees International Union, Local 2001 (Union)

[ v63 p219 ]

63 FLRA No. 84

UNITED STATES
DEPARTMENT OF ENERGY
OFFICE OF SCIENTIFIC AND
TECHNICAL INFORMATION
OAK RIDGE, TENNESSEE
(Agency)

and

OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION
LOCAL 2001
(Union)

0-AR-4188

______

DECISION

April 17, 2009

______

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Trevor L. Bain 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 found that the Agency violated the parties' agreement when it misinformed the grievant about a position vacancy. The Arbitrator directed the Agency to set aside the selections made under the vacancy announcement, re-advertise the positions, and provide the grievant priority consideration for the positions with backpay and interest, if the grievant is selected for one of the vacancies.

      For the following reasons, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Agency advertised a vacancy announcement for positions at the GS-13/14 level. Award at 19. The grievant, a GS-13 employee seeking promotion to GS-14, contacted the personnel office about the vacancy. The personnelist handling the vacancy responded that the vacancies would be filled at the GS-13 level and that, after a year or more, the selectees might be promoted to GS-14. Id. at 20. Based on this information, the grievant decided not to apply for the vacancy. Id. The Agency subsequently filled the vacancies at the GS-14 level. Id.

      The Union filed a grievance alleging that the incorrect information the grievant received from the personnelist resulted in the grievant not applying for a vacancy at the GS-14 grade. Id. at 2. Following unsuccessful attempts at resolving this grievance, it was referred to arbitration. The Arbitrator set forth the issue as whether the Agency violated the parties' agreement and federal promotion guidelines, and if so, what should be the remedy. Id. at 19.

      The Arbitrator found that the grievant was harmed when the personnelist told him that the vacancy would be filled at the GS-13 level. Id. at 20. According to the Arbitrator, the personnelist and his supervisor knew that the position "might be filled" as a GS-14. Id. In this regard, the Arbitrator concluded that the personnelist's reply to the grievant was "misleading" and "but for this personnel action the [g]rievant would have applied for the position." Id. at 21. Based on the grievant's career history and testimony from the selecting official, the Arbitrator determined that the grievant was "well-qualified" for the position. Id.

      The Arbitrator concluded that the Agency violated Article 3, §1(B) of the parties' agreement, which requires that all employees and applicants for employment should receive fair and equitable treatment. [n1]  In addition, the Arbitrator concluded that the Agency violated Article 17, Merit Staffing, § 1(C), which dictates that the merit promotion program will be "administered in an equitable and consistent manner[.]" [n2]  Id. at 23. According to the Arbitrator, "different information was given to the [g]rievant from that given to other potential [ v63 p220 ] applicants." Id. at 22. Accordingly, the Arbitrator sustained the grievance.

      As a remedy, the Arbitrator directed the Agency to set aside the five appointments to the positions advertised in the vacancy and to re-advertise the positions. See id. at 23. In addition, the Arbitrator awarded the grievant priority consideration for the vacancy and directed the Agency to pay the grievant backpay with interest if the grievant is selected for one of the positions under the re-advertised vacancy announcement. See id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator's determination that the Agency violated Article 3 of the parties' agreement is contrary to law. According to the Agency, Article 3 is merely a restatement of the merit principles found in 5 U.S.C. § 2301, which are "hortatory and are not self-executing." Exceptions at 3. As such, the Agency argues that a remedy is available only if an arbitrator also finds a "violation of a law, rule, or regulation that implements or directly concerns those merit system principles." Id. In this case, the Agency maintains that the Arbitrator did not find such a violation.

      The Agency also contends that the Arbitrator's determination that the Agency violated Article 17(1)(C) of the parties' agreement fails to draw its essence from the agreement. Specifically, the Agency asserts that the Arbitrator failed to state which requirement of Agency Order ORO O 320 the Agency violated. The Agency also argues that the Arbitrator's remedy fails to draw its essence from the parties' agreement because, according to the Agency, the parties' agreement does not provide for priority consideration.

B.     Union's Opposition

      The Union contends that the Arbitrator properly determined that the Agency violated not only Article 3, § 1(B), but also Article 17, §1(C). Opposition at 2. According to the Union, the Arbitrator concluded that the Agency did not act in an equitable and consistent manner when the personnelist gave the grievant misleading information about the vacancy. The Union maintains that the agreement implements both Agenc