[ v56 p339 ]
56 FLRA No. 48
U.S. DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING, CONVERSION
AND REPAIR, NEWPORT NEWS, VA
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-2
(Union)
0-AR-3236
_____
DECISION
May 5, 2000
____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jerome T. Barrett filed by the Agency under section 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's selection process for filling a position vacancy "was not fair nor in compliance with regulations or the parties' labor agreement." Award at 11. As a remedy, the Arbitrator ordered the Agency to rerun the selection process. For the reasons set forth below, we deny the Agency's exception that the award fails to draw its essence from the agreement, and deny the Agency's exception that the award is inconsistent with the now abolished Federal Personnel Manual (FPM). With regard to the Agency's exception that the award violates section 7106(a) of the Statute, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the award.
II. Background and Arbitration Award
A. Background
The dispute in this case concerns the process by which the Agency filled a vacancy for the position of Production Controller, GS-12. [n2] The grievant applied for the position and, along with 12 other applicants, was found to have met the basic qualifications. The selecting official established a selection panel, composed of four individuals, which was charged with rating and ranking the applicants and recommending one person for selection. Based upon the grievant's written application, the grievant was one of the three highest ranked candidates. However, following oral interviews, the grievant was not recommended or selected for the position. Thereafter, a grievance was filed. In pertinent part, the grievance alleged that the grievant's "right to a fair and equitable chance for promotion" was "removed" by inclusion of "a senior member of management" on the selection panel. Award at 3. The grievance also alleged that the grievant "was not fairly judged based on the weight put on `Element Questions' which were not part of the announcement." Id.
The Union argued before the Arbitrator that the panel's recommendation was tainted because one member of the panel was biased in favor of the selectee. The Union also argued that, although the position of Production Controller requires equal knowledge of ship repair and supply, the interview questions were biased in favor of the selectee's supply experience. The Union concluded that the process used to evaluate the applicants "denied the grievant a fair opportunity to be selected." Id. at 3.
B. Arbitration Award
The Arbitrator set forth the issues as follows:
Is the issue raised by this grievance arbitrable? If so, the merits issue can be stated as: Did the agency properly select for the position of Production [ v56 p340 ] Controller, GS-12, and if not, what is the appropriate remedy?
Several sub-issues are:
[1] Was there an appearance of impropriety in the selection?
[2] Was there bias on the part of the recommending panel?
[3] Did the agency improperly slant the interview questions to favor one candidate?
And, finally, which party is compelled to pay the [A]rbitrator?
Id. at 2.
As a preliminary matter, the Arbitrator rejected the Agency's contention that, because the grievance was based solely on non-selection, it was nonarbitrable under Article 30, Section 4(g) of the parties' agreement. [n3] Rather, the Arbitrator found that the Union was challenging the fairness of "the process that was used by the [A]gency to make its selection[,]" and that "[s]uch a challenge is completely proper under the labor agreement, regulations and law." Id. at 3-4.
In resolving the merits of the grievance, the Arbitrator addressed "[t]he three sub issue questions[.]" Id. at 8. First, the Arbitrator found that there was "an appearance of impropriety in the selection" because of evidence demonstrating that there was "a long standing rumor within the command" that connected the selectee with a member of the panel. Id. The Arbitrator also found that the aforementioned panel member, although "aware of the rumor," "failed to excuse himself from serving on the panel or inform other panel members of the rumor, two of whom were unaware of the rumor as new arrivals in the command." Id. Accordingly, the Arbitrator held that "the selection process in this case lacked the pristine character that would engender confidence throughout the command." Id. at 9.
Second, the Arbitrator addressed whether there was "bias on the part of the recommending panel[.]" Id. In resolving that issue, the Arbitrator noted a conflict between testimony of management witnesses who saw no bias on the panel, and testimony of Union witnesses who "felt that the mere presence [of the suspect panel member] . . . tainted the process." Id. The Arbitrator concluded that there was "a lack of determinative evidence in the record to answer [the] question of bias" on the panel. Id.
Third, the Arbitrator addressed whether the Agency "improperly slant[ed] the interview questions to favor one candidate[.]" Id. The Arbitrator noted the Union's argument that "[t]he labor agreement, in prohibiting bias in selection, does not require that such bias be intended, it merely requires that the bias favor one employee over another." Id. at 6. Based upon the testimony and exhibits, the Arbitrator found that the selectee's work experience "was predominately in supply[,]" while the grievant's work experience "was predominately in ship repair[.]" Id. The Arbitrator also found that the interview questions used by the panel "were predominately focused on supply[.]" Id. at 9. Therefore, the Arbitrator determined that "the questions were more compatible with [the selectee's] experience than [the] grievant's[,]" and that it would not have been inappropriate for the selectee to receive a higher score than the grievant, "if the questions, focusing largely on supply, [had] accurately reflected the job duties and the ranking factors." Id. at 9-10. Based upon his reading of the ranking factors, however, the Arbitrator determined that "ship repair is the dominate [sic] experience sought, and that supply experience is not." Id. at 10. The Arbitrator concluded that "the interview questions unfairly favored [the selectee] over the grievant[,]" and that this conclusion, combined with the rumor that one member of the panel was biased in favor of the selectee, "lead[s] to the further conclusion that the selection process was not fair nor in compliance with regulations or the parties' labor agreement." Id. at 10-11.
In terms of a remedy, the Arbitrator ordered the Agency to post a vacancy announcement for the Production Controller position occupied by the selectee "as soon as possible and no later than 30 days from this award"; conduct a selection process for the position that "is proper, correct and fair, and does not include any panelist from the earlier process"; and "[r]emove [the selectee] from the Production Controller position she has occupied since October 1998." Id. at 11. In addition, pursuant to Article 31, Section 6 of the parties' agreement, the Arbitrator ordered the Agency to "pay the full arbitrator's bill since the grievance has been sustained." Id. [ v56 p341 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the award is contrary to law and fails to draw its essence from the parties' agreement. In support for those claims, the Agency makes four arguments.
First, the Agency contends that the grievance concerned non-selection from a group of properly ranked candidates, and therefore is nonarbitrable under Article 30, Section 4 of the parties' agreement. Exceptions at 5. The Agency argues that although the Arbitrator asserted that the award addressed "the fairness of the [selection] process[,]" the issue of non-selection is "utterly inseparable" from the award. Id.
Second, the Agency contends that the award violates management's right to assign work under section 7106(a)(2)(B) of the Statute and its right to select under section 7106(a)(2)(C) of the Statute. [n4] Specifically, the Agency argues that the award "impermissibly interferes" with management's right to assign work because the award prohibits management from including members of the first selection panel on a new panel to be reconvened. Exceptions at 6,7. In support, the Agency cites National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 93 (1995). The Agency argues that the award interferes with management's right to select because "the Arbitrator fails to show how the decisions of panel members or the selecting official would have been different if [the suspect panel member] had not been a member[.]" Exceptions at 6-7. In support, the Agency cites American Federation of Government Employees, Local 31, and U.S. Department of Veterans Affairs, Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957, 963-65 (1994) (Wade Park).
Third, the Agency argues that the award "is legally deficient" because the award is "vague[,]" "is not supported by sufficient evidence[,]" and does not cite to any "procedural or regulatory deficiencies in the [selection] process." Exceptions at 6. The Agency also argues that the portion of the award requiring the selectee to be removed from her position is deficient because the Arbitrator did not find that the agency "violated proper procedures or procedures in the collective bargaining agreement." Exceptions at 8. As authority for that proposition, the Agency asserts that the Authority should apply "the principles of corrective action" found in "the former Appendix A of Chapter 335" of the Federal Personnel Manual, and that the Authority should follow the precedent set forth in U.S. Department of the Navy, Naval Undersea Warfare Center Division, Keyport, Washington and Bremerton Metal Trades Council, 55 FLRA 884 (1999), and U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 942-43 (1991). Exceptions at 8.
Fourth, the Agency argues that the award does not enforce an arrangement because there were no contract violations identified by the Union. Even if the award does "derive from an arrangement," however, the Agency argues that the award abrogates management's right to assign work and select employees because the award "requir[es] management to reannounce the vacancy, use a recommending panel which does not include members from the original panel, and take the previous selectee out of the job." Exceptions at 9-10.
B. Union's Opposition
First, the Union argues that the award is arbitrable under the parties' agreement. Citing Authority precedent, the Union asserts that "a Union may challenge the validity of the process used in making a selection." Opposition at 6.
Second, the Union argues that the Arbitrator based the award upon a violation of the parties' agreement. In this regard, the Union asserts that the award "references the negotiated agreement's requirements that the interview questions not be slanted to favor a particular candidate[,]" and that the parties' post-hearing briefs "clearly demonstrate that the Arbitrator was ruling on the particular claimed violations of the contract." Id. at 4, 7. Moreover, the Union asserts that the award is consistent with 5 C.F.R. 2635.101, which pertains to "the need to avoid actions that create even the appearance of impropriety," and also the "[A]gency's merit staffing instruction . . . at Paragraph 4(b)[,]" which "assure[s] that all vacancies are staffed by the best qualified applicants available." Id. at 7.
Third, the Union argues that the Arbitrator's remedy reflects a reconstruction of the proper outcome. Citing Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employee, Local 3627, 55 FLRA 834 (1999) (SSA), the Union asserts that the Arbitrator's order to repeat the selection process "is consistent with [ v56 p342 ] the approaches sanctioned by the [A]uthority in other cases." Opposition at 8. In the alternative, the Union argues that even if the award is procedurally defective, the proper remedy in this case would be a remand.
Fourth, the Union argues that the award does not fail to draw its essence from the parties' agreement. According to the Union, it is "obvious" that "Article 25, Section 6 of the Negotiated Agreement and the regulations referenced by the Union all compel the result reached by the Arbitrator in this case and formed the basis for his ruling." Id. at 9. According to the Union, the Authority should deny the Agency's exception because the Agency does not "reference the particular provision of the contract [with which] the [A]ward fails to comply[.]" Id.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence From the Agreement
We construe the Agency's argument that the award is nonarbitrable under Article 30, Section 4(g) of the parties' agreement as a claim that the award fails to draw its essence from the agreement. See U.S. Department of the Interior, U.S. Geological Survey, National Mapping Division, Mapping Applications Center and National Federation of Federal Employees, Local 1309, 55 FLRA 30, 32 (1998) (Authority construed agency's substantive nonarbitrability argument as a claim that award failed to draw its essence from the agreement).
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining 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 collective bargaining agreement 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 United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
The Authority has held that an award will not be found to fail to draw its essence from an agreement merely because a party believes that the arbitrator misinterpreted the agreement. See id. Here, the Arbitrator found that the grievance was arbitrable because the Union challenged the fairness of "the process that was used by the [A]gency to make its selection[,]" rather than the issue of "the non selection of the grievant[.]" Award at 4. Accordingly, the Arbitrator held that the grievance was not barred by Article 31, Section 4(g) of the parties' agreement. The Agency's exception fails to demonstrate that the Arbitrator's interpretation is unfounded, implausible, or irrational. Therefore, the Agency has not shown that the award fails to draw its essence from the agreement.
B. The FPM Is Not Applicable in This Case
The Agency argues that the portion of the award that orders the selectee to be removed from her position is deficient as inconsistent with "the principles of corrective action" found in FPM Chapter 335, Appendix A. The FPM was abolished effective December 31, 1994. In the instant case, the events that gave rise to the grievance occurred during 1998. In view of the abolishment of the FPM, the Agency's argument is inapplicable to this case. See SSA, 55 FLRA at 836-37 (Authority rejected agency's claim that FPM Chapter 335, Appendix A, section A-4b and Authority cases interpreting that provision rendered arbitrator's order to vacate promotion actions deficient).
C. The Record Is Insufficient For a Determination as to Whether the Award is Contrary to Section 7106(a) of the Statute
If the Arbitrator's decision is challenged on the ground that it is contrary to any law, rule or regulation, then the Authority reviews the legal question de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.
The Agency argues that the award is contrary to management's right to assign work and select under section [ v56 p343 ] 7106(a)(2)(B) and (C) of the Statute. Accordingly, we will review the questions of law raised by the Agency's exception and the arbitrator's award de novo.
The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that an award affects a management right under section 7106(a), the Authority applies a two-prong test. Under Prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, then the Authority will find that the award satisfies Prong I of the framework and will address Prong II. Under Prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies Prong II.
1. The Award Affects Management Rights
We find that the award affects management's right to assign work and select under section 7106(a)(2)(B) and (C) of the Statute.
First, the right of an agency to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. American Federation of Government Employees, Local 3392 and U.S. Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 52 FLRA 141, 143 (1996). Employees appointed to ranking panels are performing work for the agency and the selection of employees involves a work assignment by the agency. See American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128, 1136 (1990) (Navy Resale). Here, the Arbitrator ordered that, upon rerunning the selection process, the selection panel "not include any panelist from the earlier process." Award at 11. Consequently, as the award precludes the Agency from assigning particular employees to the selection panel, the award affects management's right to assign work under section 7106(a)(2)(B) of the Statute. See Navy Resale (Proposal 4) (proposal that precluded agency from assigning a selecting official to be a member of rating and ranking panel directly interfered with agency's right to assign work).
Second, management's right to select includes the right to determine the qualifications, skills, and abilities needed to perform the work of a position and to determine whether applicants possess such qualifications, skills, and abilities. See Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 20 (1992) (Division of Military and Naval Affairs). Here, with regard to the interview questions appropriate for the position of Production Controller, the Arbitrator determined that "[a] fair reading of [the] ranking factors makes clear that ship repair is the dominate [sic] experience sought[.]" Award at 10. On that basis, the Arbitrator's order that the Agency conduct a "fair" selection process entails that the Agency, upon rerunning the process, ask interview questions that favor ship repair over supply experience. Id. at 11. As a result, the award directs the Agency to reallocate the weight assigned to those factors. Based upon Authority precedent, we find that the award affects management's right to determine the qualifications for the position pursuant to section 7106(a)(2)(C) of the Statute. See Wade Park, 49 FLRA at 963-64 (where arbitrator changed agency's determination of the relative weights of selective factors for position, award directly interfered with management's right under 7106(a)(2)(C) to determine qualifications for position); see also Division of Military and Naval Affairs, 45 FLRA 17 (proposal that limited management's right to determine qualification requirements for a civilian national guard position directly interfered with management's right to select under section 7106(a)(2)(C) of the Statute).
2. The Arbitrator Did Not Identify Any Law or Contract Provision That Was Violated By the Agency
In order to apply the analysis required by Prong I, it is essential to identify the law or contract provision that was violated. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180 (1998) (DOD Norfolk) (Member Wasserman dissenting). Here, the Arbitrator concluded that the disputed selection process was not "in compliance with regulations or the parties' . . . agreement." Award at 11. However, the Arbitrator did not identify any specific [ v56 p344 ] regulation or provision of the parties' collective bargaining agreement that was violated in connection with either the interview questions or the participation on the panel by the disputed Agency official. Although, as our dissenting colleague points out, the Union's post-hearing brief referenced Article 25, Section 6 of the parties' agreement, the Arbitrator did not cite or rely on that provision in rendering the award. [n5] In any event, Article 25, Section 6 speaks only to "rating criteria," and the Union's post-hearing brief cites it only in connection with the allegation regarding the interview questions. As such, it appears unrelated to the Arbitrator's finding that is central to the exceptions now before us: that there was "an appearance of impropriety" regarding the disputed Agency official's participation on the selection panel.
In these circumstances, we are unable to determine whether the Arbitrator enforced any particular provision of the parties' agreement. Accordingly, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the award. See DOD Norfolk, 54 FLRA at 184 (Authority remanded award for clarification of its basis when Authority was unable to determine whether the arbitrator interpreted and applied a relevant provision of the contract).
V. Decision
We deny the Agency's exception that the award fails to draw its essence from the agreement, and deny the Agency's exception that the award is inconsistent with the Federal Personnel Manual. With regard to the Agency's contention that the award is contrary to law, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the award
File 1: Authority's Decision in 56 FLRA No.
48
File 2: Opinion of Chairman Wasserman
Footnote # 1 for 56 FLRA No. 48 - Authority's Decision
The Opinion of Chairman Wasserman, dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 56 FLRA No. 48 - Authority's Decision
A "Production Controller" is "a Material Program or Project Manager who provides independent direction, analysis and control of specific material projects in support of aircraft carriers." See Vacancy Announcement, "Production Controller," attached to Agency's exceptions. As relevant here, the first two ranking factors for the position are as follows:
1. Knowledge of ship repair practices and procedures used in the operation, alteration and repair of aircraft carriers.
2. Knowledge of Type Commander, NAVSEA, NAVSUP, Industrial Activity and shipboard organizations and functions and their involvement in the FMP process.
Award at 10.
Footnote # 3 for 56 FLRA No. 48 - Authority's Decision
Article 30, Section 4(g) provides that "[n]onselection for promotion from a group of properly ranked and certified candidates" is "excluded from coverage under the negotiated grievance procedure." Award at 3.
Footnote # 4 for 56 FLRA No. 48 - Authority's Decision
With regard to management's right to assign work, the Agency inadvertently cites to section 7106(a)(2)(A), rather than 7106(a)(2)(B) of the Statute. As support for its argument, the Agency relies on case law that involves section 7106(a)(2)(B).
Footnote # 5 for 56 FLRA No. 48 - Authority's Decision
In addition to the one reference in the post-hearing brief to Article 25, Section 6, the brief also references a Government-wide and an Agency regulation in connection with the argument that the disputed selection process was improper. See Union's Post- Hearing Brief at 6, 7. Because the award contains no references to the agreement or regulations on this point, it is not possible to determine whether the Arbitrator found that any, or all, of the cited requirements were violated.