61 FLRA No. 54

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 Andree Y. McKissick 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 sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) in the nonselection of the grievants for a Lead Human Resources (LHR) Specialist, General Schedule (GS) 11-12, position.

      For the reasons that follow, we find that the award is deficient under § 7122(a) of the Statute. Accordingly, we set it aside, except for the Arbitrator's fees portion of the award, which is modified to allocate such fees to the Union.

II.     Background and Arbitrator's Award

      The grievants, three Human Resource Specialists, applied for an LHR Specialist position, GS-05-0201-11/12. The Chief (Supervisor) of the office made a selection, but none of the grievants was selected. Thereafter, the Union filed a grievance alleging that the Agency violated Article XXX, Section 4 of the CBA when it utilized an unfair process to fill the vacancy. [n1]  The grievance was denied on the basis that it concerned nonselection, a nongrievable matter under Article XXXIV, Section 3 of the CBA, and the matter was submitted to arbitration.

      The Arbitrator stated the issues as follows:

Award at 5.

      Before the Arbitrator, the Union asserted that the selectee was preselected for the position. The Union also asserted that the grievance was arbitrable because it was not based on the nonselection of the grievants, but rather was based on the fairness of the selection process. The Agency disputed the Union's assertions and further argued that "no formal panel was convened," and thus, "there was no need to [allow] a Union official to participate in the selection process." Id.

      The Arbitrator found that the grievance was arbitrable because it was based on the fairness of the selection process. As to the merits, the Arbitrator found that it was the "[supervisor's] sole decision to select the [LHR] Specialist." Id. at 4. The Arbitrator found that the supervisor's determination was "independently validated by [three other managers]. However, the record shows that no panel was formulated." Id. The Arbitrator [ v61 p300 ] found that the supervisor provided these three other managers "the referral list of the [g]rievants and the selectee, resumes and a job description." Id. The selectee was then awarded the position "because it was determined that she was the best-qualified candidate." Id.

      Examining the parties' CBA, the Arbitrator found that Article XXX, Section 4, "specifically requires that a `rating panel' be utilized." Id. at 8. However, according to the Arbitrator, the evidence showed that the "Chief . . . alone made the decision to promote the selectee." Id. The Arbitrator noted that the Chief sought the "analysis" of three managers who concurred with her decision, but found that Article XXX, Section 4 "was violated as a `rating panel' was never established, as required by the [CBA]." Id.

      The Arbitrator further found that the requirement of Article XXX, Section 4, that "Union representation . . . be included amongst . . . panel members was also . . . violat[ed]" because there was no Union representation as required by the CBA. Id.

      The Arbitrator found that the supervisor did comply with the requirement of informing the staff of opportunities for additional training. However, according to the Arbitrator, as the grievants were Team Leaders and the selectee was not, they did not have the same amount of time as the selectee to take advantage of training opportunities, attend meetings with the supervisor, or have access to other managers. The Arbitrator found that the selectee was not a college graduate, as was one of the grievants, and was a short-term employee compared with one of the grievant's seniority.

      The Arbitrator further found that Article XXX, Section 9 of the CBA provides that the "[e]mployer will make available for review the following pertinent promotion records: list of applicants considered, their group ranking, the referral and selection register, and the completed Qualification Rating Sheet." Id. at 10. The Arbitrator found that instead of the above, the Agency provided a job description, referral list and resumes to the three managers who made their independent determination to promote the selectee. The Arbitrator found this "process of determination [was] inconsistent with the format established . . . in the [CBA]." Id. According to the Arbitrator, any "departure from the [CBA evidenced] favoritism . . . toward the selectee." Id. The Arbitrator thus found the selection process violated Article XXX, Section 9. The Arbitrator noted that the Agency has the right to promote a selectee, but the "right to a fair selection process cannot be denied to the [g]rievants." Id.

      The Arbitrator found that "since the Agency [violated] Article XXX, Section[s 4 and 9] of the [CBA], . . . the remedy must be to nullify the promotion of the selectee and re-create the selection process by formulating a `rating panel' with a Union representative as a member of that panel, as required by the [CBA]." Id. The Arbitrator stated that such remedy did not run "afoul of management['s] right to select" because the "prerequisites delineated in Article XXX, Section[s 4 and 9] must be precisely complied with, as contemplated by the [CBA]." Id. at 11.

      Applying United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), the Arbitrator found that prong I was satisfied based on the contract violations found, and prong II was satisfied "by the recreation of a fair selection process via the utilization of a rating panel, with a Union representative as a member." Id. at 11.

      As her award, the Arbitrator found the grievance arbitrable. The Arbitrator found that the Agency violated Article XXX, Sections 4 and 9 because the Agency "failed to establish a rating panel and produce pertinent records, as required by the [CBA.]" Id. at 12. Therefore, the Arbitrator directed the Agency to "re-create the selection process with the inclusion of a Union representative, as one of the panelists, to give each candidate full and fair consideration for advancement." Id. The Arbitrator retained jurisdiction for consideration of attorney fees.

      With respect to the Arbitrator's fee, in the billing to the parties--issued simultaneously with the award--the Arbitrator noted that "[a]s per the [parties' CBA], the loser pays all[,]" and billed the Agency for the entire fee. Exceptions, Attachment 7.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the award fails to draw its essence from the CBA. The Agency asserts that the Arbitrator found that Article XXX, Section 4 "specifically requires that a `rating panel' be used[]" and that this section was violated because a "`rating panel' was never established as required by the [CBA]." Exceptions at 12-13 (quoting award at 8). The Agency states that "[n]owhere in the [CBA] is there a requirement that the [Agency] must convene a rating panel." Id. at 13. The Agency contends that the Arbitrator refers to language in Article XXX, Section 4 that states "[w]hen the [Agency] determines [that] a rating panel [is to] be used[.]" Id. According to the Agency, "[t]his language neither directly nor impliedly states that there is a [ v61 p301 ] requirement that the [Agency] will use a rating panel in promotions and selections." Id. The Agency states that the "word `when' indicates that it is the [Agency's] prerogative to determine when to use a rating panel." Id.

      The Agency claims that nothing in the provision guarantees the Union a position on the rating panel. According to the Agency, the Union "merely `nominates non-applicant employees to serve as panel members.' The [Agency] retains the right to evaluate candidates and select the candidates to serve on the rating panel, if the [Agency] . . . chooses to convene [such] a . . . panel." Id. at 14. The Agency asserts, therefore, that the award does not draw its essence from a plausible interpretation of the CBA and cannot in any rational way be derived from the CBA.

      The Agency claims that the Arbitrator also "erroneously interpreted" Article XXX, Section 9. According to the Agency, this section does not require a selecting official to deliver all pertinent documents to others from whom the selecting official may seek advice. The Agency claims that, instead, Section 9 "requires . . . when the Union files a grievance that all pertinent documents be delivered to the Union representative." Id. at 16. The Agency states that the Union received all pertinent documents and records. The Agency further contends that the Union did not raise this matter as an issue in the grievance, hearing, or post-hearing briefs. The Agency asserts that the award is not a plausible interpretation of Article XXX, Section 9 and cannot in any rational way be derived from the CBA because a reasonable rational person would interpret Section 9 to require only that, during the grievance process, the Union is entitled to pertinent records.

      The Agency asserts that the Arbitrator's order to re-run the selection is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute and its right to select under § 7106(a)(2)(C). The Agency contends that the award allows the Union to be involved in the selection process and, therefore, the award affects management's right to make selections for appointments under § 7106(a)(2)(C).

      Referring to BEP, the Agency asserts that the "award . . . provides a remedy for a violation of the contract . . ., Article[s] XXX, [S]ection[s] 4 and 9 . . . ." Exceptions at 9. However, according to the Agency, the Arbitrator "incorrectly interpret[s these sections], and thus, has fashioned an award on an implausible violation. Id. According to the Agency, the Arbitrator stated that under Section 4, the Agency "is required to convene a panel and since the Agency did not convene a panel then the [CBA] has been violated[,]" and that under Section 9, the Agency is required to deliver pertinent records and because the Agency did not do so, the Agency violated the CBA. Id. The Agency contends that by providing a remedy for violations that do not exist, the award fails to satisfy prong I because it is not based on any violation of the Statute or the CBA.

      The Agency further asserts that even if prong I is met, the award does not satisfy prong II because it does not reflect a reconstruction of what management would have done if there had been no violation. According to the Agency, the managers in this case would not have convened a rating panel because such a panel is not required under the CBA or under regulations or statutes.

      The Agency contends that the Arbitrator exceeded her authority when she resolved an issue not submitted to arbitration. The Agency asserts that neither party "raised or addressed during the hearing or post-hearing briefs whether the Union failed to receive pertinent documents in accordance with Article XXX, [S]ection 9." Id. at 19.

      The Agency claims that the Union is not entitled to attorney fees because the award is deficient. The Agency also "[requests] a [s]tay on payment [of the] Arbitrator's . . . fees and interest until the Authority decides th[e] case." Id. at 20. The Agency states that the Arbitrator has billed the Agency because the CBA requires the losing party to pay the fees. However, according to the Agency, if the Authority sets aside the award, then the Union as the losing party would be required to pay the fees.

B.     Union's Opposition

      The Union contends that the award does not fail to draw its essence from the CBA. According to the Union, the Agency's claim, that the Arbitrator erred in finding that a rating panel was required, "is a misrepresentation of what the Arbitrator found . . . ." Opposition at 5. The Union contends that the Agency "ignores the Arbitrator's correct finding that the Agency did use a panel when it submitted the applicant list to three managers with an indication of who the selecting official already selected." Id.

      The Union asserts that the award is not contrary to law because "the Agency had already agreed" to permit a Union representative to serve on a rating panel. Opposition at 4. The Union asserts that the "Agency ha[d] already chosen to use a panel . . . and that is why a panel is ordered in recreating the selection process." Id. The Union argues that the Agency "cannot now complain about being ordered to do it right." Id. [ v61 p302 ]

      The Union asserts that the Arbitrator did not exceed her authority. The Union disputes the Agency's contention that Article XXX, Section 9 was not made an issue in this case. The Union states that it argued that the Agency was in violation of Article XXX and "focused on the use of the review panel in making the selection." Id. at 5.

      The Union contends that the Agency's attorney fees argument is premature because the Arbitrator did not rule on the issue, but simply retained jurisdiction until the merits are resolved. Additionally, the Union asserts that the Agency's request for a stay with respect to the Arbitrator's fees is improper because the payment portion of the CBA "is silent as to anything that may happen on the appeal of an [a]ward and leaves the payment contingent solely on the party that prevails by the Arbitrator." Id.

IV.     Analysis and Conclusions

A.     The Award Fails to Draw its Essence from the Parties' CBA

1.     Article XXX, Section 4

      The Authority will find an award deficient as failing to draw its essence from a 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 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 Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Article XXX, Section 4 provides, in relevant part, "[w]hen the [Agency] determines that a rating panel is to be used in filling a bargaining unit position, the Union may nominate non-applicant employees to serve as panel members." Award at 3. The Arbitrator found that the "record shows that no panel was formulated[]" and that the supervisor "alone made the decision to promote the selectee." Award at 4 and 8. The Arbitrator interpreted Article XXX, Section 4 as "specifically requiring that a `rating panel' be utilized." Id. at 8. The Arbitrator noted that the supervisor sought the "analysis" of three managers who concurred with her decision, but found that Article XXX, Section 4 "was violated as a `rating panel' was never established, as required by the [CBA]." Id.

      There is nothing in the wording of Article XXX, Section 4, that requires the Agency to use a rating panel. The CBA does not provide a definition of the term "when." However, applying the dictionary definition, the term "when" indicates "the time or moment" that the Agency decides that it will use a rating panel to fill a unit position. Webster's New World Dictionary, 1520 (3rd college ed. 1988). In sum, the wording of this section indicates that the use of such a panel is not required in all cases as the Arbitrator's interpretation suggests, but instead is required only when the Agency decides to use a panel in the selection process. Thus, the Arbitrator's determination that this section specifically requires that a rating panel be used does not represent a plausible interpretation of the agreement. The Union's argues that the Arbitrator found that the "Agency did use a panel when it submitted the applicant list to three managers[.]" Opposition at 5. However, contrary to the Union's assertion, the Arbitrator specifically found that the "record shows that no panel was formulated[]" and that the supervisor "alone made the decision to promote the selectee." Award at 8. Thus, the Arbitrator's determination that the Agency violated Article XXX, Section 4 by failing to establish a rating panel "as required by the CBA[,]" and by failing to include a Union representative on such a panel does not draw its essence from the CBA. Id.

2.     Article XXX, Section 9

      The Agency argues that the Arbitrator's interpretation of Article XXX, Section 9 is not plausible because this section does not require the selecting official to deliver all pertinent documents to others from whom the selecting official may seek advice. The Agency claims that, instead, Section 9 "requires . . . when the Union files a grievance that all pertinent documents be delivered to the Union representative." Exceptions at 16.

      Article XXX, Section 9 provides "[w]hen the Union is representing an employee, the Employer will make available for review the following pertinent promotion records: list of applicants considered, their group ranking, the referral and selection register and the completed Qualification Rating Sheet." Award at 3. The Arbitrator found that this provision required the Agency to make available the pertinent information identified in Section 9 for review to the three managers who provided information to the selecting official concerning the selection, rather than the limited information provided to them. The wording of Article XXX, Section 9, on its face, concerns information to be provided by the Agency to the Union when an employee files a grievance and the Union is the employee's representative. The provision addresses information to be provided to the Union after a selection has been made, rather than information to be provided to managers prior [ v61 p303 ] to a selection. Because Article XXX, Section 9, on its face, concerns information to be provided to the Union, the Arbitrator's interpretation of this provision to encompass information to be provided to the managers involved here does not represent a plausible interpretation of this section. Accordingly, the Arbitrator's finding that the Agency violated Article XXX, Section 9 does not draw its essence from the CBA.

      Therefore, we find that the award is deficient under § 7122(a) of the Statute because it fails to draw its essence from Article XXX, Sections 4 and 9 of the CBA. Thus, the award must be set aside.

B.     The Arbitrator's Fees Award Must be Modified

      With respect to the Arbitrator's fees, the Agency argues that since the award fails to draw its essence from the parties' CBA, the Authority should set aside the award and "require the Union to pay the Arbitrator's . . . fee." Exceptions at 20. The Union acknowledges that the "plain language of the contract requir[es] the losing party [to] pay[.]" Opposition at 6. Also, in the billing to the parties, which we find is a part of the award, the Arbitrator stated that "[a]s per the [CBA], the loser pays all." Exceptions, Attachment 7; see NAGE, Local R4-27, 60 FLRA 14, 15 n.3 (2004) (letter concerning an arbitrator's fee issued simultaneous to an award is considered part of the award). The record evidence, including the Arbitrator's billing, thus establishes that under the CBA the "loser pays all." Exceptions, Attachment 7. Therefore, as the award fails to draw its essence from the CBA and must be set aside, we modify the allocation of the fees from the Agency to the Union.

V.     Decision

      The award is set aside, except for the Arbitrator's fees which is modified to allocate such fees to the Union. [n2] 

           ARTICLE XXX - PROMOTIONS

Section 4. When the Employer determines that a rating panel is to be used in filling a bargaining unit position, the Union may nominate non-applicant employees to serve as panel members. The Employer agrees to select a nominated employee to serve on the panel if the employee is qualified to evaluate candidates and if the employee occupies a position that is at or above the grade level of the position being filled.

Section 9. It is understood that nonselection from a properly constituted referral may not form the basis for a grievance. However, an employee may grieve if he feels that a referral list was not properly constituted. Such employee may have Union representation. When the Union is representing an employee, the Employer will make available for review the following pertinent promotion records: list of applicants considered, their group ranking, the referral and selection register and the completed Qualification Rating Sheet. Privileged material will not be divulged. Records will be sanitized, or withheld, as necessary in order to protect the privacy of individuals as provided by the Privacy Act of 1974. When the employee remains dissatisfied, he retains the right to file a grievance within fifteen (15) calendar days after notification that he was not considered to be in the "Best Qualified" group.

ARTICLE XXXIV - GRIEVANCE PROCEDURE

Section 3. The following matters are excluded from the Grievance Procedure: . . . . (11) Nonselection for promotion from a group of properly ranked and certified candidates[.]

Exceptions, Exhibit 3 at 31, 32-33, and 37.

   The pertinent text of Article XXX, Section 4 and other relevant provisions of the CBA are set forth in the Appendix to this decision.

   In view of this conclusion, we do not address the Agency's remaining exceptions.