58 FLRA No. 138

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 T. Zane Reeves 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 denied the grievances of two grievants who were not selected for vacant positions. For the reasons discussed below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The two grievants work at the Corpus Christi Army Depot (the Agency). They applied for Aircraft Engine Mechanic positions at the Agency but were not selected. The Union filed a grievance alleging that the employees who were selected, who currently work at the Agency but had previously worked at Kelly Air Force Base, were not referred in accordance with applicable Agency requirements. In essence, the grievance claimed that the Agency was required to give the selected employees Army performance appraisals, and as a result of the Agency's failure to do so, the selected employees submitted Air Force ratings, which did not comply with the Army's minimum ratings requirement. [ v58 p565 ]

      The grievance was not resolved and was submitted to arbitration. The issue presented to the Arbitrator was "whether the Agency violated any law, regulation, or labor/management agreement pertaining to the use of performance appraisals in the subject recruitment action, which directed [sic] resulted in the non-selection of either [g]rievants [sic]?" Award at 2.

      The Arbitrator found that the evidence substantiated the Agency's contention that the selection decision was based on two sources of information: (1) each candidate's application and Supplemental Qualifications Statement (SQS); and (2) the interview process, during which six job-related questions were asked of each candidate. More particularly, as to the SQS, the Arbitrator found that, before job offers are made, a civilian personnel specialist verifies that the employees have received a "fully successful" rating. Id. at 9.

      The Arbitrator further found that he could reverse a management selection decision only if a preponderance of evidence demonstrated that there was a nexus between intentional, improper agency action and the failure to promote an individual. He concluded that there was no evidence that "the interviewers did not perform their duties properly or that the [g]rievants should have been rated more highly during the interview than other applicants." Id. at 11. The Arbitrator also found that "there was no factual evidence presented at the arbitration hearing to corroborate [the Union's] allegations of favoritism and discrimination." Id. at 7.

      Accordingly, the Arbitrator dismissed the grievance "as lacking demonstrated merit through the preponderance of evidence admitted at the arbitration hearing." Id. at 12.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that it "provided sufficient evidence at the hearing to show by [a] preponderance of evidence that their [sic] were violations of Federal Law, Rule, and Regulations that the Arbitrator failed to apply . . . ." Exceptions at 1. Specifically, the Union contends that the Arbitrator erred in applying 5 C.F.R. §§ 335.103, 335.104 and 430.102, as well as Army Regulation (AR) 690-400, because, under these provisions, the selectees were "below the minimum qualification[] levels required for the positions" for which they were being considered. Id. The Union argues that the selectees, who had formerly been employed by the Department of the Air Force, were required to be evaluated under Department of the Army standards because they had been employed by the Army for a reasonable amount of time. The Union also asserts that the grievants met the requirements for selection and that "favoritism . . . played a major role in this case . . . ." Id. at 2.

      The Union further argues that the Arbitrator erred in applying the laws, rules, regulations and collective bargaining agreement provisions governing the completion of the SQS. The Union contends that one of the selectees failed to properly complete his SQS, but was nonetheless selected, while one of the grievants had previously been disqualified for promotion due to the incompleteness of his application. Finally, the Union asserts that the Agency failed to provide it with copies of certain regulations that the Union requested.

B.     Agency's Opposition

      The Agency asserts that the Arbitrator did not find that the Agency violated any law, rule or regulation and the Union's exception does not identify any such violation. The Agency argues that the Union's contention that the former Air Force employees should have received Army appraisals provides no basis for overturning the award. The Agency notes that the Agency's hiring requirements only require submission of the "last performance appraisal." Opposition at 6. It argues that there is no requirement that this appraisal be an Army appraisal, only that it be the employee's last appraisal. The Agency explains that the Air Force uses a rating scheme that is different from the Army's. According to the Agency, the Union did not demonstrate to the Arbitrator that any of the selectees received a performance rating below fully successful and it has not presented any evidence to that effect in its exceptions. The Agency further asserts that the Union's claim that the Agency violated law by selecting an employee who had not completed his SQS form is also without merit and should be rejected.

      Finally, the Agency argues that the Union's claims that the grievants were qualified for the positions and that the Agency did not provide the Union with requested information does not provide a basis for overturning the Arbitrator's award.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of the Air Force, Warner Robins [ v58 p566 ] AFB, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Union argues generally that the award is contrary to 5 C.F.R. § 335.103 (Agency promotion programs), § 335.104 (Eligibility for career ladder promotion), and § 430.102 (Performance managee [*]  However, the Union makes no specific arguments as to how the award violates any particular aspect of these regulations and has not demonstrated that the regulations required the Agency to evaluate employees under Department of the Army standards as a condition to their consideration for the vacant positions. In addition, the Union has not demonstrated that the selections were based on favoritism in violation of the regulations. As such, the Union has not established that the award is contrary to the regulations.

      The Union also argues that the award conflicts with AR 690-400, the Total Army Performance Evaluation System, which is the Army's performance management system for civilian personnel. Section 1-4 of the AR generally deals with the responsibilities of various management and human resources personnel in administering the performance management system. Section 2-5 states in relevant part that "[s]upervisors should consider referred employees' recent ratings of record (e.g. the last 3 years) when making placement decisions." AR 690-400 § 2-5 (1998). Appendix A of the regulation addresses annual appraisals and states in relevant part that "[r]ating periods normally cover one year, but must cover at least 120 days." Id. at Appendix A 1.a. The Union does not point to anything in the Army regulation that requires the use of Army appraisals when applying for Army positions. The Union has failed to demonstrate how the award is inconsistent with AR 690-400.

      Finally, the Union's argument that one of the selected employee's SQS was incomplete is a bare assertion that provides no basis for finding the award deficient. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000). Consequently, we deny this exception.

B.     The award does not fail to draw its essence from the parties' agreement.

      We construe the Union's assertion that "the Arbitrator erred in applying . . . the bargaining agreement" as a claim that the award fails to draw its essence from the agreement. Exceptions at 3. For an award to be deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established 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 an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Ctr., New Cumberland, Pa., 55 FLRA 1303, 1307 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it is the arbitrator's interpretation for which the parties bargained. United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 56 FLRA 249, 251 (2000) (citing Dep't of Health and Human Servs., Soc. Sec. Admin., 32 FLRA 79, 88 (1988)).

      The Arbitrator stated that the Union's grievance was based, in part, on alleged violations of Article 12, § 5(a), (b) and (c), and Article 16, §§ 5 and 8 of the parties' collective bargaining agreement. Award at 6. Article 12, § 5 sets out the reasons for which the non-selection of an employee is grievable. Article 16, § 5 states that the annual performance appraisal may be used for a variety of personnel decisions. Article 16, § 8 states that AR 690-400, the Total Army Performance Evaluation System, will be administered in accordance with existing regulations. While the Union has attached copies of portions of Articles 12 and 16 of the parties' agreement to its exceptions, the Union has failed to explain how the Arbitrator misapplied these provisions. The Union, therefore, has not demonstrated that the Arbitrator's decision manifests a disregard of the agreement or is implausible, irrational or unfounded. Consequently, the Union's exception provides no basis for finding that the award fails to draw its essence from the agreement.

V.     Decision

      We deny the Union's exceptions.

   The Union argues that the Agency failed to provide it with copies of these regulations. To the extent that this could be construed as an exception, the Union has provided no basis for finding the award deficient in this regard.