U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Number 139                    February 2001

Social Security Administration, Ohio District Office and American Federation of Government Employees, Local 3348, 0-AR-3348, January 31, 2001, 56 FLRA No. 192.

In turning down agency exceptions to an award in which the arbitrator ordered a retroactive promotion for failing to afford the grievant her priority consideration rights, FLRA said that an arbitrator's determination that the agency failed to properly consider and weigh all the evidence in the record in assessing the grievant's qualifications doesn't affect management's rights. In FLRA's words, "an arbitrator's review of agency qualification determinations to assess whether the agency, in applying its qualification standards, properly processed the evidence in the record does not affect management's rights in a manner that is contrary to the Statute."

Because the grievant, who had applied for a Claims Representative position, had not been considered for the position because her name was inadvertently left off the Best Qualified list, she was granted, under the terms of the contract, priority consideration for future vacancies. When another Claims Representative position became available, she requested priority consideration, was interviewed, and her application was considered before any of those on the best qualified list. But she wasn't selected because the selecting official determined that, given the location of the office and the nature of the work to be done, the grievant lacked the qualifications needed to successfully perform as a Claims Representative. She grieved and the matter was referred to arbitration.

The arbitrator, after deciding that the agency had the burden of demonstrating that it had "sound, meaningful, job-essential reasons to disqualify her," found that the agency failed to meet that burden. He found that the agency didn't dispute that the grievant's nine years' experience as a Service Representative gave her the basic skills for the Claims Representative position, nor that the grievant had received consistently good evaluations, service awards, including an award for handling a workload that increased from 40 to 80 interviews a day when the office was shorthanded. The arbitrator further noted that the testimony of the selecting official was based mostly on what she had heard from others and not on what she had observed. For failing to meet its burden the arbitrator ordered that the grievant be granted the next appropriate vacancy and that that promotion be made retroactive to the date the person selected for the position entered the job. The agency filed exceptions.

FLRA rejected the agency's claim that the award failed to draw its essence from the agreement because it imposed a burden of proof on the agency. Since the agency pointed to no contract provision allocating burdens of proof in priority consideration cases, "nothing prevented the Arbitrator from placing on the Agency the burden of demonstrating that it had sound, meaningful, job-essential reasons to disqualify the grievant."

It also rejected the agency's claim that the arbitrator's allocation of the burden of proof to the agency regarding the grievant's qualifications violated 5 CFR Part 335. FLRA noted that Part 335 prescribes the requirements for competitive selection procedures and gives agencies discretion to except candidates not given proper consideration in a competitive promotion action from competitive procedures. It also noted that contract provides that priority consideration is a noncompetitive action. "Thus, the priority consideration procedure involved in this case is not subject to the requirements of Part 335." Moreover, the agency pointed to no provision in Part 335 establishing burdens of proof.

The agency's claim that the arbitrator's allocation of the burden of proof violated management's rights fared no better. After pointing out that the management right specified by the agency (the right to determine the agency's personnel) doesn't apply to selection actions, the Authority went on to say that "contrary to the Agency's argument, an agency is not necessarily free of any evidentiary burden with respect to the exercise of its rights under § 7106 of the Statute. . . . [T]he fact that the Arbitrator required the Agency to support its determination that the grievant was unqualified does not in and of itself affect management's rights under § 7106 of the Statute."

FLRA also rejected the agency's claim that the award abrogated management's rights to establish the qualifications needed to perform the work of the position and to evaluate whether an employee meets those qualifications.

[A]rbitrators may not . . . simply disagree with an agency's assessment of employees' qualifications, but they are not bound by assessments that are based on a faulty use of the evidence in the record. Succinctly stated, an arbitrator's review of agency qualification determinations to assess whether the agency, in applying its qualifications standards, properly processed the evidence in the record does not affect management's rights in a manner that is contrary to the Statute.

In FLRA's view, the latter is what the arbitrator did in this case. The arbitrator found that the selecting official's testimony as to her reasons for rejecting the grievant was based on hearsay and didn't take into account evidence on the grievant's performance and qualifications. "In effect, he found that the Agency failed to properly consider and weigh all the evidence in the record." FLRA went on to say that "[s]uch review, under Authority precedent, does not affect management's right to select under section 7106(a)(2)(C) of the Statute and, thus, it is unnecessary to apply the test set forth in BEP."

We report this case chiefly because FLRA here makes clear what was at best only implicit in the decisions it cited as Authority precedent: namely, that an arbitrator's rejection of an agency's assessment of an employee's qualifications on the ground that the agency "failed to properly consider and weigh all the evidence in the record" does not affect management's rights. Although FLRA cited 42 FLRA at 352, 37 FLRA at 1028 and 34 FLRA at 656, only the first—where FLRA said the Arbitrator determined that the grievant wasn't rated fairly—arguably relates to the view here adopted by FLRA. The relevance of the other cited cases is far from obvious.