U.S. Nuclear Regulatory Commission, Arlington, Texas and National Treasury Employees Union (Authority decision, September 3, 1993)

Final FLRA decision. The Authority denies exceptions to an arbitration award and leaves the award denying the promotion grievance in place. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not resolve an unfair labor practice.

Plain-English summary

The National Treasury Employees Union challenged the Nuclear Regulatory Commission's selection of an employee for a senior radiation specialist position. The union argued that the selectee lacked the knowledge equivalent to a master's degree required by the position announcement. The arbitrator found that a degree itself was not required and that the union had not shown the selectee was unqualified. The Authority held that the union's disagreement with the arbitrator's assessment of the evidence did not establish a conflict with the agency's qualification rule. It also rejected the union's nonfact claim because the arbitrator had found a failure of proof, not that the selectee possessed a master's degree equivalent. The union's exceptions were denied, leaving the grievance denial in place.

Decision snapshot

• Authority: Exceptions to an arbitration award under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; arbitrator's denial of the promotion grievance stands.
• Key point: A challenge to the arbitrator's weighing of qualification evidence did not establish that the award conflicted with an agency rule or rested on a nonfact.

Full text (FLRA public release)

[ v48 p466 ]
48:0466(43)AR

The decision of the Authority follows:

48 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. NUCLEAR REGULATORY COMMISSION

ARLINGTON, TEXAS

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2420

_____

DECISION

September 3, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Harold H. Leeper filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance contesting the Agency's selection of an employee for promotion. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance on behalf of two employees contesting the selectee's promotion to the position of Senior Radiation Specialist, GG-14. The grievance was not resolved and was submitted to arbitration.

As relevant here, the issue before the Arbitrator was:

Whether the Agency pre-selected [the selectee] for the GG-14 Senior Radiation Specialist job in violation of [l]aw, [r]ule, [r]egulation or the Collective Bargaining Agreement and Manual Chapter [Appendix] 4108. If so, what is the appropriate remedy?

Award at 2.(1)

The Union argued that the disputed selection failed to comply with NRC Manual Appendix 4108, Part III, E(2)(b).(2) In particular, the Union argued that the selectee was not qualified for the position because she lacked an academic degree.

The Arbitrator noted that the announcement for the disputed position required "broad knowledge in the field of Health Physics 'equivalent to that obtained through the completion of courses required for a Master's degree.'" Id. at 15 (emphasis in original). He determined that the Agency did not require applicants to possess an academic degree and that the Agency's "emphasis is on equivalence of knowledge rather than possession of academic degrees." Id. The Arbitrator found that the selectee possessed specialized knowledge and work experience prior to her Agency employment, noting that she was hired:

[i]n response to an [Agency] instruction . . . [to add] inspectors who were qualified in nuclear materials operations in hospitals and other medical facilities. . . . In fact, the kind of positions [the selectee] held during over [10] years of work with nuclear materials in hospitals, including training technicians and physicians in the use of those materials, appears to be exactly the sort of experience that the [Agency] desired.

Id. at 14, 15. Citing subparagraph E(2)(a) of NRC Manual Appendix 4108, Part III, the Arbitrator stated that an "unstructured, loose delegation of authority" had been made to Agency personnel specialists and officials to make determinations regarding Agency positions. Id. at 17. The Arbitrator also stated that, "despite [his] numerous requests" for explanations of relevant qualification requirements, the parties had presented "almost no evidence . . . concerning the knowledge of principles, theories and practices in the field of health physics which would be obtained through completion of courses required for a Master's degree." Id. at 15.

The Arbitrator concluded that the Union failed to demonstrate by a preponderance of the evidence that the selectee was not qualified for the Senior Inspector position. Accordingly, as his award, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union asserts that the disputed selection violated NRC Manual Appendix 4108. According to the Union:

[t]he Arbitrator ignored subsection (2)(b) entirely . . . The Arbitrator analyzed subsection (2)(a), decided that the personnel specialist had authority to make the determination, and neglected to look any further.

Exceptions at 6-7.

The Union also argues that "[b]ecause the record consists of absolutely no testimony that would support the position that [the selectee] possessed the "'equivalent of a [M]aster's degree'" . . .[the] [a]ward is based upon a nonfact." Id. at 10. In this regard, the Union asserts that the Arbitrator relied on "broad, general language used in support of [the selectee's] qualifications" and ignored testimony which demonstrated that the selectee was not minimally qualified for the position. Id. at 8.

B. Agency

The Agency asserts that the Union has failed to establish that the award is deficient. The Agency contends that the Union's exceptions constitute only disagreement with the Arbitrator's findings and conclusions and fail to demonstrate that the award is deficient.

IV. Analysis and Conclusions

We have stated that we will find an award deficient under section 7122(a) of the Statute "when the award conflicts with an agency rule or regulation so long as the rule or regulation . . . applies to the the matter in dispute and does not conflict with similarly applicable provisions of the collective bargaining agreement." U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 190 (1990). In this case, even assuming that NRC Manual Appendix 4108 governs the matter in dispute, the Union has not established that the award conflicts with that regulation.(3)

The Union asserts that the Arbitrator considered only subsection 2(a) of the regulation. However, the Arbitrator specifically discussed the qualification requirements for the disputed position and concluded that the Union failed to substantiate its claim that the selectee did not meet those requirements. In this regard, an arbitrator is obliged neither to cite specific regulatory sections, nor to provide detailed explanations of reasoning. For example, U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 42 FLRA 931, 934 (1991). We conclude that the Union's assertion that the award conflicts with the Agency's regulation constitutes mere disagreement with the Arbitrator's evaluation of the evidence and fails to establish that the award is deficient. See National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, New Mexico National Guard, Albuquerque, New Mexico, 45 FLRA 1045, 1048-49 (1992).

We also reject the Union's assertion that the award is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. See U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 44 FLRA 1080, 1083 (1992).

The Union claims that, "[b]ecause the record consists of absolutely no testimony that would support the position that [the selectee] possessed the 'equivalent of a [M]aster's degree,' the Arbitrator's . . . [a]ward is based upon a nonfact." Exceptions at 10. However, the Arbitrator did not find that the selectee possessed knowledge equivalent to a Master's degree. Rather, he determined only that the Union failed to demonstrate that the selectee did not possess such knowledge. The Arbitrator also found, in this regard, that the Agency does not require academic degrees for its positions and that the selectee was qualified for the position. The Union has not established that the Arbitrator's finding is clearly erroneous and, as such, has failed to demonstrate that the award is based on a nonfact. See U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 9 (1993).

V. Decision

The Union's exceptions are denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. Before the Arbitrator, the Union
   also alleged that the selection constituted prohibited discrimination based on age and race. However, as the Union has not excepted to the Arbitrator's findings that such discrimination was not established, we will not address those matters further.

2. That regulation provides in
   pertinent part:

3. Basic Qualifications Determination.

a. The personnel specialist, utilizing input from the selecting official . . . , shall make the final determination as to whether a candidate meets the basic qualification requirements for a position. . . .

b. Applicants must meet all qualification requirements, including any time-in-grade (rate of promotion) requirements . . . .

3. There is no dispute that the
   selectee met the applicable time-in-grade requirements for the disputed position.