American Federation of Government Employees, Local 200 (Union) and United States Department of Transportation, Federal Aviation Administration, William J. Hughes Technical Center, Atlantic City International Airport, Atlantic City, New Jersey  (Agency)

AR-4340 Decision

64 FLRA No. 139                                                                                                                                         

















May 11, 2010


Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

I.          Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Margery F. Gootnick 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 found that the procedures that the Agency followed in awarding a promotion violated the parties’ agreement, Agency policies, and merit-system principles.  Although the Arbitrator admonished the Agency to avoid such violations in the future, she determined that none of the Union’s requested remedies was appropriate.

For the reasons that follow, we deny the Union’s exceptions.

II.        Background and Arbitrator’s Award

            When the Agency failed to select an employee for a particular position, the Union filed a grievance on behalf of that employee.  The grievance was unresolved and submitted to arbitration, where the parties stipulated to the following issues:

1.      Whether the grievance was timely filed.

2.      Whether the Agency failed to comply with Articles 15 and 20 of the [parties’] Agreement and, if so,

3.      What the remedy should be.

Award at 6.   

At the outset, the Arbitrator noted that the grievance “expressly acknowledged” that, under Article 15, §? ?6 of the parties’ agreement, “non-selection for promotion from among a group of properly ranked and certified candidates is not grievable[,]” although “[t]he procedures utilized are grievable[.]”  Id. at 3.  The Arbitrator also noted that substantively identical wording is contained in Article 20, § 3(d)(6), which excludes from the scope of the grievance procedure “a grievance concerning non-selection for promotion from a group of properly ranked and certified candidates.”  Id. at 4.  In view of these provisions, the Arbitrator determined that she could “countenance[] th[e] grievance only insofar as it . . . addressed . . . the [selection] procedures . . . and not . . . the grievant’s non-selection or . . . the appointment of the eventual selectee[.]”[1]  Id.  

The Arbitrator concluded that the procedures used in the disputed selection action violated the parties’ agreement, Agency policies, and merit-system principles.  In particular, the Arbitrator found that the selection process was so “steeped in irregularity and favoritism” that it “cast serious doubt on the integrity and fairness of the Agency’s management[.]”  Id. at 20-21, 17.  Accordingly, she sustained the grievance.  Id. at 20-21.

            Nevertheless, the Arbitrator concluded that “[n]one of the remedies requested by the Union is appropriate in this case.”  Id. at 21.  As relevant here, she denied the Union’s request that the Agency be directed to reopen and rerun the disputed selection process, finding that the grievant “and the Union expressly waived any such remedy[.]”[2]  Id. at 20.   She “admonished [the Agency] to follow its own policies and to avoid future violations of merit principles.”  Id. at 21.

III.       Positions of the Parties

            A.        Union’s Exceptions

According to the Union, the Arbitrator erred in finding that the grievant and the Union waived reopening the selection process as a remedy.  Exceptions at 1.  In support, the Union cites its post-arbitration-hearing brief, in which it requested this remedy.  Id. at 2.  Although the Union acknowledges that the grievant stated that he was not seeking an “automatic promotion for himself[,]” the Union contends that the Arbitrator misconstrued this statement to mean that he “waiv[ed] consideration under a re-compete for the position[.]”  Id.  The Union asserts that, although the Arbitrator “found that the Union proved all charges made against the Agency, [she] failed to make any award.”   Id. at 1.


            B.        Agency’s Opposition

            According to the Agency, the Union is merely attempting to relitigate the merits of the parties’ dispute because the Union disagrees with the award.  Opp’n at 1.

IV.       Analysis and Conclusions

            A.        The award is not based on a nonfact.

            We construe the Union’s argument that the Arbitrator incorrectly found that the grievant and the Union waived reopening and rerunning the selection process as a claim that the award is based on a nonfact.  To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.  See NFFE, Local 1984, 56 FLRA 38, 41 (2000).  However, an arbitrator’s conclusion that is based on an interpretation of the parties’ collective bargaining agreement does not constitute a fact that can be challenged as a nonfact.  See NLRB, 50 FLRA 88, 92 (1995).

            The Union does not demonstrate that the Arbitrator clearly erred in finding that the grievant and the Union waived the remedy of reopening and rerunning the disputed selection action.  In this regard, the Union conceded not only that it was not seeking “an automatic promotion” for the grievant but also