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

Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Newport News, VA and National Association of Government Employees, Local R4-2, 0-AR-3236 (56 FLRA 339 (2000)), March 29, 2001, 57 FLRA No. 12.

The Authority, Chairman Cabaniss dissenting in part, turned down agency exceptions to an award in which the arbitrator "clarified" the basis of his earlier award (in which he had directed the rerun of a promotion action using a rating panel that excluded all members of the previous panel and requiring the weight to be assigned to questions asked in the rerun interviews changed) by incorporating by reference then-Chairman Wasserman's dissent in 56 FLRA No. 48.

In his initial award the arbitrator found that the agency's selection process "was not fair nor in compliance with regulations or the parties' agreement." He found, among other things, that the rating panel used by the agency contained a member who was perceived to be biased in favor of one of the candidates and held that the interview questions used by the panel improperly focused on supply experience, rather than on ship repair experience. As a remedy he directed that the selection be vacated, the promotion action be rerun, the rating/recommending panel not include any members of the previous panel, and that the new panel ask interview questions that favored ship repair over supply experience.

Because the remedy affected management's right to assign work (which includes the right to determine the composition of rating panels), and the right to select (which includes the right to determine the qualifications for the position) the Authority wanted to apply the 2-prong BEP test to determine whether the award violated the aforementioned management rights. But it (then- Chairman Wasserman dissenting) was unable to apply the analysis required by Prong 1 because the arbitrator didn't specify what regulation or contract provision was violated. In FLRA's words

[T]he Arbitrator did not identify any specific 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. 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.

The Authority accordingly remanded the case to the parties for resubmission to the arbitrator, for a clarification of the basis of the award.

As reported by the Authority, the arbitrator said he had reviewed the entire Authority decision, identified the dissent language as the basis of his award, and reaffirmed his ordered remedy. The agency filed exceptions claiming, among other things, that the arbitrator still didn't specify the law, rule, regulation, or agreement provision that was violated. In rejecting this claim, FLRA said the following:

Here, the Arbitrator clarified the basis for the initial award by incorporating by reference then-Chairman Wasserman's dissent in [56 FLRA No. 48], which cites Article 25, Section 6 of the parties' agreement as the Arbitrator's basis for his award. Specifically, the Arbitrator ruled that he had "identified the FLRA [then-] Chairman's dissent language as the basis for the September 2, 1999 award." Award at 4. We note that in their submissions to the Arbitrator, both parties essentially incorporated by reference sections of the majority and dissenting opinions. Id. at 3. Thus, the Arbitrator's clarification follows the style used by the parties. . . .

Finding that the arbitrator based his award on Article 25, Section 6 of the agreement, FLRA proceeded to apply the BEP test. FLRA rejected the agency's claim that Article 25, Section 6 was not an enforceable § 7106(b)(3) arrangement.

As interpreted and applied by the Arbitrator, the Agency violated Article 25, Section 6 by posing interview questions that "unfairly favored" the selectee over the grievant. As such, Article 25, Section 6 is substantially similar to agreement provisions requiring an agency to exercise its management rights fairly and equitably, which have been found by the Authority to constitute arranagements within the meaning of § 7106(b)(3). [Citations omitted.]

Nor did Article 25, Section 6, as interpreted and applied by the arbitrator, abrogate management's rights to assign work and select. It noted that the agency claimed that the provision precluded management from exercising these rights and relied on cases "it claims stand for the proposition that the award ‘interferes' with management's rights to select and assign work." But the agency didn't explain how the arbitrator's application of the provision prevented it from exercising those rights.

[A]rguments that an arbitrator's interpretation and application of a provision interferes with management's rights do not demonstrate that the application of the provision abrogates those rights. See, e.g., FAA, 55 FLRA at 1237 (rejecting agency's argument that award abrogated management's rights, in part because "negotiability cases employing an 'interference' analysis do not control the abrogation analysis required under Customs Service" [37 FLRA No. 20].

Finding that the arbitrator's interpretation and application of Article 25, Section 6 was an arrangement that didn't abrogate management's rights, FLRA concluded that the award satisfied Prong I of the BEP test.

The majority, Chairman Cabaniss dissenting, went on to find that the award also satisfied the requirements of Prong II. (Chairman Cabaniss argued that, since the arbitrator found that the participation of a particular management official--not all the members of the rating panel--was inconsistent with the agreement, "[a] valid reconstruction clearly would not involve the replacement of the entire panel. Consequently, I would modify that portion of the award by permitting the Agency the option to utilize on the panel anyone other than the particular management official in question.")

The remaining exceptions, including an "essence" exception, also were denied.

In her partial dissent, Chairman Cabaniss dropped a footnote suggesting that she has some reservations about the current abrogation test. "While I do not ascribe any reliance to using the current abrogation test set out in Customs Service, 37 FLRA 309," she said, "the use of that test is not dispositive to the present matter and therefore is not addressed here."