UNITED STATES OF AMERICA FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C. and Date: October 10, 2012 TABLE OF CONTENTS

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1 UNITED STATES OF AMERICA FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C. American Federation of Government Employees, Council 215 (Union) Deborah Blunt Merriell, Grievant and Case No. DF-2011-R-0007 Date: October 10, 2012 Social Security Administration Arbitrator: J. E. (Jim) Nash Office of Disability Adjudication and Review Joanne Drive Region VI, New Orleans, Louisiana Omaha, NE (Agency) (voice) (cell) TABLE OF CONTENTS I. BACKGROUND II. ABITRATION AWARD III. ARGUMENT A. Standard of Review B. Relevant Portions of the 2005 CBA C. The Arbitrator s Award is Deficient as it is Based on a Non-Fact D. The Award Does Not Draw Its Essence from the Agreement E. The Arbitrator Erred in Ordering the Agency to Promote Grievant to the SCT Position The Arbitrator Erred As A Matter of Law The Arbitrator's Decision Does Not Merely Set Conditions on Management's Right to Select Candidates for Promotion, But Completely Abrogates the Exercise of that Management Right IV. CONCLUSION CERTIFICATE OF SERVICE

2 UNITED STATES OF AMERICA FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C. American Federation of Government Employees, Council 215 (Union) Deborah Blunt Merriell, Grievant Case No. DF-2011-R-0007 and Dated: October 10, 2012 Social Security Administration Arbitrator: J. E. (Jim) Nash Office of Disability Adjudication and Review Joanne Drive Region VI, New Orleans, Louisiana Omaha, NE (Agency) (voice) (cell) AGENCY S EXCEPTIONS TO ARBITRATION AWARD OF ARBITRATOR NASH Pursuant to 5 C.F.R (a), the Social Security Administration (the Agency) hereby files exceptions to the Arbitrator s award dated September 11, 2012 (Award). As set forth fully below, the Award is deficient and should be set aside because (1) the Award is based on a nonfact; (2) the Award fails to draw its essence from the 2005 National Agreement; and (3) the Arbitrator erred in ordering the Agency to promote Grievant. The Agency s exceptions are timely because they have been transmitted by commercial means within 30 days of the September 11, 2012, service date of the Award. See 5 C.F.R (c)(3). I. BACKGROUND This case arose from a non-selection for a Senior Case Technician (SCT) position in the Agency s New Orleans, Louisiana, Office of Disability Adjudication and Review (ODAR). On July 27, 2009, the Agency posted Vacancy Announcement (VA) ST DAL for one vacancy for a full-time permanent SCT position in the New Orleans, Louisiana Metro area. Agency s Exceptions Page 1

3 On September 19, 2009, the Agency selected three other individuals as a SCT, but did not select the Grievant, Deborah Blunt Merriell (Grievant or Ms. Merriell), or Nicole Williams-Lewis. On September 30, 2009, Ms. Merriell filed a grievance, alleging that the Agency failed to promote her to the SCT position in violation of the 2005 SSA/American Federation of Government Employees (AFGE) National Agreement (CBA), Articles 3 (Employee Rights), 24 (Grievance Procedure), and 26 (Merit Promotion). See Attachment A, Joint Exhibit (Jt. Exh.) 2, p. 1. Grievant alleged that there was an error in preparing the Certificate of Eligibles, also referred to as the Best Qualified List (BQL), as one of the selectees, Danielle M. Crawford, was short of the 52 weeks-in-grade to be eligible for promotion, and thus should not have been included on the BQ list. See Attachment A, Jt. Exh. 2, pp The Agency and Grievant participated in the grievance process as outlined in the CBA, and at step one, step two, and step three, the Agency denied Grievant s request for relief. See Award at 3. Upon learning that one selectee, Ms. Crawford, did not have the minimum time-ingrade to compete for this position, the Agency took prompt corrective action and demoted her. See Award at 3, 4. AFGE invoked arbitration, and the parties attended a regular arbitration in this matter in New Orleans, Louisiana, on July 18, See Hearing Transcript (HT), p. 1, lines II. ARBITRATION AWARD On September 11, 2012, arbitrator J.E. (Jim) Nash (Arbitrator) issued his Award finding that the Agency violated the CBA in its announcement, processing, and selection for the SCT position at issue. See Award at 10. The Arbitrator found that the Agency did not rate the candidates for selection by the same criteria and sources, did not construct a properly ranked and ordered BQL, and would have chosen the Grievant absent procedural violations of the CBA. See Agency s Exceptions Page 2

4 Award at 7-8. The Arbitrator ordered as a remedy that the Agency promote the Grievant to the SCT position, retroactive to August 14, See Award at 10. The Arbitrator further held that the promotion will include all back wages, seniority, and other benefits to which the Grievant would have been entitled absent the illegal act Award at 10. A. Standard of Review Agency s Exceptions Page 3 III. ARGUMENT The Federal Labor Relations Authority (Authority) reviews de novo whether an arbitrator s decision is contrary to law, rule, or regulation, but defers to the arbitrator s underlying factual findings. See AFGE Local 201 and Dept. of Defense, 57 FLRA 874, 876 (2002). Under 5 U.S.C. 7122(a), the Authority will review an arbitrator s award to which an exception has been filed to determine whether the award is deficient (1) Because it is contrary to any law, rule or regulation; or (2) On other grounds similar to those applied by Federal courts in private sector labor-management relations. B. Relevant Provisions of the 2005 CBA The relevant provisions of the CBA fall under Article 26, Merit Promotions, as follows: Section 11. Selection A. The selecting official may use all available information to determine the candidate(s) who merit promotion. Section 14. Priority Consideration A. Definition For the purpose of this Article, a priority consideration is the genuine consideration for non-competitive selection given to an employee as the result of a previous failure to properly consider the employee for selection because of procedural, regulatory or program violation. Employees will receive one priority consideration for each instance of improper consideration. A priority consideration does not give the employee a right or a guarantee to be selected for any vacancy.

5 C. The Arbitrator s Award is Deficient as it is Based on a Non-Fact To establish that an award is based on a non-fact, 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 SSA Seattle Region and AFGE Local 3937, 58 FLRA 374, (2003); see also AFGE, Local 1395 and SSA, 64 FLRA 622, 625 (2010) (award not based on non-fact where party failed to establish that arbitrator s reliance on erroneous fact, even if true, would have resulted in a different outcome). Here, the Arbitrator s Award was clearly erroneous and was based on a non-fact. The Arbitrator mistakenly relied upon the obsolete language in the 2000 CBA, which did not allow the selecting official to contact the applicant s supervisor. See Award at 9. The 2000 CBA contained Article 26, Section 11(A), which stated, in relevant part: Once a well qualified list has been established by the Assessment Panel, there will be no other candidate information gathered by the selecting official. However, this does not preclude the selecting official from recontacting the Assessment Panel and/or interviewing all well-qualified candidates. Attachment B, Article 26, Section 11(A) of the 2000 CBA. The Arbitrator did not address the directly conflicting provisions of the applicable National Agreement, the 2005 CBA, which allows a selecting official to contact an applicant s supervisors. See Award at 9. This central factual error underlying the Award makes it clearly erroneous, and but for the factual error, the Arbitrator would have reached a different result. See, e.g., United States Army Missile Command, Redstone Arsenal, Ala., 18 FLRA 374, (1985) (award enforcing an agreement that did not apply to the grievant because it had expired set aside as based on a non-fact). The Arbitrator found troubling that the selecting official, Hearing Office Director (HOD) Glenda Terrance (Ms. Terrance), discussed the applicants qualifications for the SCT position Agency s Exceptions Page 4

6 with their respective supervisors. See Award at 9. The Arbitrator concluded that, [f]or whatever reason, such contact is banned by this particular CBA. Award at 9. However, contrary to the Arbitrator s conclusion, the 2005 CBA permits the selecting official to contact an applicant s supervisor for job references. Section 11(A) of the 2005 CBA states that [t]he selecting official may use all available information to determine the candidate(s) who merit promotion. See Attachment C, Jt. Exh. 1, p. 32 (emphasis added). The Arbitrator s reliance on the inapplicable 2000 version of the CBA occurred because, at the hearing, Grievant s representative argued the merits of a September 29, 2011 arbitration decision, AFGE Local 3627, 66 FLRA 207 (2011). The Local 3627 decision is not relevant or persuasive to the case herein as it concerned the 2000 CBA rather than the 2005 CBA applicable here. See AFGE Local 3627, 66 FLRA at 208 n.3. Applying Article 26, Section 11(A) from the 2000 CBA, 1 the arbitrator in AFGE Local 3627 found that it was improper for the selecting official to confer and seek information from the supervisors of the candidates on the wellqualified list to assist in the selection process. See AFGE Local 3627, 66 FLRA at 208; HT, p. 146, lines 7-25; HT, p. 147, line 1. 2 However, the language from Article 26, Section 11(A) of the 2000 contract appears nowhere in the 2005 CBA and is no longer in effect. Unfortunately, Grievant s representative did not correct or clarify his mistaken belief during the hearing that the 2005 CBA prohibits the selecting official from gathering information about the candidates once a well-qualified list has 1 Article 26, Section 11(A) of the 2000 CBA states, in pertinent part: Once a well qualified list has been established by the Assessment Panel, there will be no other candidate information gathered by the selecting official. However, this does not preclude the selecting official from recontacting the Assessment Panel and/or interviewing all wellqualified candidates. 2 In AFGE Local 3627, the arbitrator ordered the selecting official to vacate the selections and have the selection process rerun off of a corrected BQ list with a different selecting official, in contrast to the instant case, where the Arbitrator awarded an immediate retroactive promotion. See AFGE Local 3627, 66 FLRA at 210. Agency s Exceptions Page 5

7 been established. See HT, p. 146, lines 21-25; HT, p. 147, line 1. Indeed, when Agency counsel protested that AFGE Local 3627 cited language from the outdated 2000 CBA, Grievant s representative claimed that the language in the 2000 and 2005 contracts on this issue were identical: MR. VELTE: You know, actually according to the first page of this decision, it was a 2003, but it was under the 2000 contract at that time, not the 2005 contract. I don't know if the specific provisions have changed or not, but that's something MR. SINGLETON: I think the section, the place where it was, I don't think the contract changed.... THE ARBITRATOR: If you are aware if the contract changed relative to this, it would be helpful to me. See HT, p. 148, lines 14-25; HT, p. 149, lines 5-8. Grievant s post-hearing brief does not state that the case she relied upon quotes the obsolete Article 26, Section 11(A) of the 2000 CBA, rather than Section 11(A) of the 2005 contract, which instead states that [t]he selecting official may use all available information to determine the candidate(s) who merit promotion. See Attachment C, Jt. Exh. 1 (emphasis added). In the Agency s post-hearing briefs, it articulated that the Arbitrator relied on language from the obsolete 2000 CBA not at issue in this grievance. See Attachment D, Agency s Closing Brief, at Accordingly, the Agency requests that the Authority set aside the Arbitrator s award as contrary to the language of the 2005 CBA. The Authority has previously set aside an award where an arbitrator s interpretation of an agreement was inconsistent with the express language of the agreement. See VA Augusta and AFGE Local 217, 59 FLRA 780, (2004). The Authority has also indicated that it may set aside an award where an arbitrator relies on an outdated version of a statute and the award is inconsistent with the applicable version of the Agency s Exceptions Page 6

8 statute. See, e.g., U.S. Dept. of Homeland Sec. U.S. Customs and Border Protection and NTEU, 65 FLRA 356, 359 (2010) (arbitrator s reliance on an outdated version of a statute may render an award deficient where the party Excepting can demonstrate that the award is inconsistent with the applicable version of the statute). Accordingly, the Arbitrator s conclusion that there was no credible evidence of record to justify the Grievant s non-selection for the Senior Case Technician (SCT) vacancy; but even if the evidence were there, the Employer forfeited its right of unfettered selection when it violated the rule on which that right depended, is a central fact that is in error, as his credibility assessment is based upon a faulty assumption derived from an obsolete CBA. See Award at 8. D. The Award Does Not 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); AFGE, Council 220, 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 U.S. Dep t of Labor (OSHA), 34 FLRA 573, 575 (1990). The Arbitrator s Award does not draw its essence from the CBA. As explained above in Section C, the Arbitrator relied on obsolete language in the 2000 CBA and did not address Agency s Exceptions Page 7

9 directly conflicting provisions of the applicable 2005 CBA, which allows a selecting official to contact an applicant s supervisor for references. In addition, the Arbitrator s Award did not draw its essence form the 2005 CBA because the negotiated appropriate remedy for nonselection under Article 26 is priority consideration-not promotion-as the Arbitrator awarded in this case. As such, the Arbitrator s award cannot in any rational way be derived from the agreement, evidences a manifest disregard of the agreement, and does not draw its essence from the contract. As Management explained in its Step Three grievance response, the Agency mistakenly ranked and ordered the BQL, by placing a selectee for the SCT position on the BQL who was short of the 52 weeks-in-grade (Ms. Crawford) and, thus, ineligible for promotion. As a result, the Agency demoted Ms. Crawford. See Jt. Exh. 4, pp. 1, 3; HT, p. 23, lines 10-15; HT, p. 36, lines 20-25; HT, p. 100, lines 22-25; HT p. 101, lines The Arbitrator did not follow the contract in this case, but rather directed the Agency to promote the Grievant to the [SCT] position, retroactive to the date of assignment of the ineligible candidate from the [BQL] closed on August Award at 10. The Arbitrator s decision to order Grievant s retroactive promotion does not draw its essence from the CBA, as the only negotiated remedy for a procedural, regulatory or program violation in the selection process is priority consideration under Article 26, Section 14(A). A remedy short of placing the grievant in an SCT position was an appropriate and equitable resolution, and Grievant herself requested this as a potential remedy. See Attachment A, Jt. Exh. 2, p. 1. Moreover, the Arbitrator mistakenly relied upon the obsolete language in the 2000 CBA, which did not allow the selecting official to contact the applicant s supervisor. See Award at 9. The 2000 CBA contained Article 26, Section 11(A), which stated, in relevant part: Once a well qualified list has been established by the Assessment Panel, there will be no other candidate Agency s Exceptions Page 8

10 information gathered by the selecting official. However, this does not preclude the selecting official from recontacting the Assessment Panel and/or interviewing all well-qualified candidates. Attachment B, Article 26, Section 11(A) of the 2000 CBA. The Arbitrator did not address the directly conflicting provisions of the applicable National Agreement, the 2005 CBA, which allows a selecting official to contact an applicant s supervisors. See Award at 9. E. The Arbitrator Erred in Ordering the Agency to Promote Grievant to the SCT Position 1. The Arbitrator Erred As a Matter of Law The Authority reviews de novo the questions of law raised by an exception that an award is contrary to law. United States Department of Justice Federal Bureau of Prisons Federal Correctional Institution Miami, Florida and AFGE Council of Prison Locals Local 3690, 66 FLRA 1046, 1049 (2012), citing 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, the Authority assess whether the Arbitrator s legal conclusions are consistent with the applicable standard of law. Id. In making that assessment, the Authority defers to the arbitrator s underlying factual findings. Id. The Arbitrator erred when it found that, because the Agency (1) erred in ranking and ordering the BQL, (2) did not properly review applications to ensure that the applicants met the minimum qualifications for the position; and (3) the selecting official contacted Grievant s supervisors when selecting off the BQL, the Agency forfeited its unfettered right to choose candidates for promotions. See Award at 7-8. The Arbitrator cites to no legal authority for his premise that a procedural violation of the CBA revokes the Agency s right to select candidates for a position, or, conversely, to refuse to select candidates not well-suited for a position. See Agency s Exceptions Page 9

11 Award at 8. First, the Agency has explained above that the Arbitrator relied on the 2000 CBA, rather than the applicable 2005 CBA, in finding that the selecting official erred in contacting Grievant s supervisors when determining who to select from the BQL. Thus, because the Arbitrator erred in applying an incorrect version of the CBA, the remaining questions are whether the Agency s admitted error in ranking and ordering the BQL and failing to ensure that all candidates met the minimum qualifications for the position forfeited the Agency s right to choose the best-suited candidates for promotion to the SCT position off VA ST DAL. In 2010, the Authority revised the analysis that it will apply when reviewing management-rights exceptions to arbitration awards. United States Department of the Army U.S. Army Corps of Engineers Louisville District Louisville, Kentucky and IFPTE, Local 852, 66 FLRA 426, 428 (2012), citing U.S. EPA, 65 FLRA 113, 115 (2010). Under the revised analysis, the Authority assesses whether an award affects the exercise of an asserted management right. IFPTE, Local 852, 66 FLRA at 428, citing EPA, 65 FLRA at 115. If so, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of section 7106(a)(2) or a contract provision that was negotiated under section 7106(b). Id. Absent a claim that an award enforces a contract provision that was not negotiated under Section 7106(b), the Authority will not find an award contrary to management rights. Id. at 428. Additionally, the Authority no longer requires that an arbitrator's remedy reconstruct what management would have done had it not violated the contract. See FDIC and National Treasury Employees Union Chapter 273, 65 FLRA 179, 181 (2010). Here, the Agency conceded and still concedes that procedural violations occurred, as (1) the selections for the SCT position were not made from properly ranked and certified BQL Agency s Exceptions Page 10

12 candidates because of the presence of an ineligible applicant; and (2) that the Agency did not ensure that all applicants met the minimum qualifications for the position. The Arbitrator found that because the Agency admitted that it violated the CBA regarding the creation of the BQL and selected an ineligible candidate, the Agency forfeited its unfettered right to choose candidates for promotion. See Award at 7-8. The Arbitrator cites no authority for his premise that a procedural violation of the CBA revokes the Agency s right to select candidates best qualified for a position, or, conversely, to refuse to select candidates not well-suited for a position. See Award at 8. Assuming that the Arbitrator believes that the unfettered right to choose candidates for promotion refers to the Agency s Management Rights under 5 U.S.C. 7106(a), the Agency agrees that the BQL list did not contain properly ranked and certified candidates for promotion, and the Agency did not notice the presence of an ineligible candidate until after her selection. However, on exceptions filed with the FLRA in another Agency matter, the Authority affirmed the arbitrator s decision to issue no award to the grievant even though the Agency admittedly violated the parties agreement. See AFGE Local 2505 and SSA Dist. Office Bartlesville, Okla., 64 FLRA 689, (2010). In AFGE Local 2505, the Arbitrator determined that the Agency violated several articles of the agreement when it failed to include the Union in orientation sessions as the agreement required under those provisions. See id. at 690. Nevertheless, the arbitrator declined to issue a remedy. See id. In denying the Union s exceptions, the Authority stated that the Union did not identify a provision in the agreement that explicitly requires an arbitrator to award remedies upon finding any violation of the agreement. See id. at 691. Even if the Authority were to find that the Agency forfeited its right to select the best- Agency s Exceptions Page 11

13 suited candidate, priority consideration rather than promotion to the SCT position, is the appropriate remedy under the CBA. The Arbitrator erred in finding that a procedural defect in the formation and selections from a BQL warranted Grievant s retroactive promotion to a SCT position. See Award at 10. In the Agency s post hearing brief, it explained that priority consideration was the appropriate remedy for a failure to consider a candidate for a position. See Attachment D, p The Agency argued that even though the Agency erred in compiling the BQL, management fully and fairly considered Grievant for the SCT position, but determined that she was not the best-qualified applicant for the position. See Attachment D, p However, because the Arbitrator has now found that the Agency did not properly consider Grievant, the issue before the Authority is the appropriate remedy for such a violation. See Award at 10. The parties specifically negotiated that priority consideration is the appropriate remedy when there is a procedural, regulatory, or program violation. Article 26, Section 14(A) of the 2005 CBA. Accordingly, the Arbitrator s Award should be set aside as it does not draw its essence from the contract. 2. The Arbitrator s Decision Does Not Merely Set Conditions on Management s Right to Select Candidates for Promotion, But Completely Abrogates the Exercise of that Management Right. The Arbitrator s Award violates statutory Management s Rights. The Authority may examine on review whether the award enforces a contract provision negotiated under 5 U.S.C. 7106(b). See EPA, 65 FLRA at 115. To determine whether the award enforces a contract provision negotiated under 7106(b)(3), that is, an appropriate arrangement for employees adversely affected by the exercise of any management rights, the Authority assesses: (1) whether the contract provision constitutes an arrangement for employees adversely affected by Agency s Exceptions Page 12

14 the exercise of a management right; and (2) if so, then whether the arbitrator s enforcement of the arrangement abrogates the exercise of the management right. See id. at 118. The Arbitrator does not cite to his source of authority when he found that the Agency forfeited its right of unfettered selection when it violated the rule on which that right depended The Agency presumes that he refers to the 2005 CBA, Article 26, Section 10. BQL, Paragraphs A, B and E. See Award at 4. However, there is no provision in law or the CBA which sets retroactive promotion as the negotiated remedy or penalty for an improperly ranked and ordered BQL or for failure to discover than an ineligible candidate appears on the BQL. Priority consideration under Article 26, Section 14 is the only negotiated arrangement or remedy provision, and it is an appropriate result under the 2005 CBA where there was a defect in the Agency s exercise of its management s right to select candidates for promotion. See 2005 CBA, Article 26, Section 14. Further, even if the Arbitrator based his forfeiture theory on general principles of contract law, the remedy for such a violation is the bargained for provisions of the 2005 CBA, that is, a priority consideration. Article 26, Section 14(A) of the 2005 CBA describes a priority consideration as the genuine consideration for non-competitive selection given to an employee as the result of a previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation. A priority consideration, unlike the retroactive promotion the Arbitrator awarded here, does not abrogate the Agency s exercise of its management right to select employees for promotion, but is ameliorative and requires a fair and equitable exercise of that management right to hire. Accordingly, the Arbitrator s decision should be set aside, as it does not represent a plausible interpretation of law. Agency s Exceptions Page 13

15 IV. CONCLUSION The Arbitrator s Award is based on a non-fact, does not draw its essence from the CBA, is contrary to law, and abrogates a right of management. For these reasons, the Agency respectfully requests that the Authority grant the Agency s exceptions and set aside the Arbitrator s Award. Respectfully submitted, HENRY ERNEST VELTE III Assistant Regional Counsel Agency Representative 1301 Young St., Suite A702 Dallas, Texas (214) (214) (facsimile) (214) (confidential facsimile) HENRY.VELTE@ssa.gov Agency s Exceptions Page 14

16 CERTIFICATE OF SERVICE I hereby certify that on October 10, 2012, the Agency s Exceptions to the Arbitration Award of Arbitrator Nash was sent by commercial delivery (UPS), to the following: Federal Labor Relations Authority Gina K. Grippando, Chief Case Intake and Publication Federal Labor Relations Authority 1400 K Street, NW, Suite 201 Washington, DC Arbitrator J.E. (Jim) Nash Joanne Drive Omaha, Nebraska Union Representative David Singleton, President 4204 Woodcock Drive, Suite 100 San Antonio, Texas Henry Ernest Velte III Assistant Regional Counsel Agency Representative Agency s Exceptions Page 15