Veterans Administration Hospital (Activity) and American Federation of Government Employees, Lodge 2201 (Union)



[ v04 p419 ]
04:0419(57)AR
The decision of the Authority follows:


 4 FLRA No. 57
 
 VETERANS ADMINISTRATION
 HOSPITAL
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LODGE 2201
 Union
 
                                            Case No. O-AR-45
 
                  DECISION ON MOTION FOR RECONSIDERATION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A MOTION FILED BY THE AGENCY
 FOR RECONSIDERATION OF THE AUTHORITY'S DECISION IN THE ABOVE-ENTITLED
 CASE.  /1/ THE UNION FILED AN OPPOSITION.
 
    IN THIS CASE THE ARBITRATOR WAS PRESENTED WITH THE ISSUE OF WHETHER
 THE ACTIVITY VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY
 NOT SELECTING THE GRIEVANT FOR A PROMOTION.  THE ARBITRATOR SPECIFICALLY
 FOUND THAT THE ACTIVITY VIOLATED THE AGREEMENT WHEN IT FAILED TO FOLLOW
 THE SUBSTANTIVE REQUIREMENTS OF THE MERIT PROMOTION PLAN.  THE
 ARBITRATOR FURTHER DETERMINED THAT BECAUSE MANAGEMENT'S ACTIONS
 IMPROPERLY AND SUBSTANTIALLY SUPPORTED THE SELECTED EMPLOYEE'S
 CANDIDACY, HIS SELECTION HAD TO BE SET ASIDE.  IN ADDITION, THE
 ARBITRATOR ALSO SPECIFICALLY FOUND THAT THE GRIEVANT AS THE ONLY OTHER
 HIGHLY QUALIFIED CANDIDATE WOULD HAVE BEEN SELECTED FOR THE PROMOTION
 BUT FOR THE IMPROPER SELECTION OF THE EMPLOYEE SELECTED.  ACCORDINGLY,
 AS HIS AWARD, THE ARBITRATOR SET ASIDE THE THE ACTIVITY'S SELECTION FOR
 THE POSITION AND ORDERED THE GRIEVANT RETROACTIVELY PROMOTED TO THE
 POSITION WITH BACKPAY.  THE AGENCY FILED EXCEPTIONS TO THE AWARD
 CONTENDING THAT IT WAS DEFICIENT.  AS ITS DECISION (4 FLRA NO.
 57(1980)), THE AUTHORITY DETERMINED THAT THE AGENCY'S EXCEPTIONS
 PROVIDED NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER SECTION 7122(A)
 OF THE STATUTE.
 
    AS RELEVANT TO THE AGENCY'S MOTION FOR RECONSIDERATION, THE AUTHORITY
 IN PARTICULAR DETERMINED THAT THE AGENCY'S EXCEPTION THAT THE AWARD WAS
 CONTRARY TO THE BACK PAY ACT OF 1966 /2/ PROVIDED NO BASIS FOR FINDING
 THE AWARD DEFICIENT.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY HAD
 MAINTAINED ON THE BASIS OF A DECISION OF THE COMPTROLLER GENERAL THAT
 UNDER THE BACK PAY ACT ONLY THOSE VIOLATIONS OF COLLECTIVE BARGAINING
 AGREEMENT PROVISIONS WHICH CONSTITUTE NONDISCRETIONARY POLICIES WILL
 SUPPORT AN ARBITRATION AWARD OF RETROACTIVE PROMOTION WITH BACKPAY.  THE
 AGENCY HAD ARGUED THAT THEREFORE THE ARBITRATOR'S AWARD WAS CONTRARY TO
 THE BACK PAY ACT BECAUSE THERE WAS NO NONDISCRETIONARY POLICY THAT
 MANDATED THE GRIEVANT'S PROMOTION.  HOWEVER, THE AUTHORITY EMPHASIZED
 THAT IT IS WELL ESTABLISHED THAT THE BACK PAY ACT PROVIDES THE
 APPROPRIATE AUTHORITY TO REMEDY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
 ACTION WHICH HAS DENIED AN AGGRIEVED EMPLOYEE A PROMOTION THAT THE
 EMPLOYEE WOULD OTHERWISE HAVE RECEIVED.  IN PARTICULAR, THE AUTHORITY
 EMPHASIZED THAT PURSUANT TO THE BACK PAY ACT AN ARBITRATOR MAY AWARD A
 RETROACTIVE PROMOTION WITH BACKPAY WHEN THE ARBITRATOR FINDS THAT THE
 AGENCY VIOLATED ITS COLLECTIVE BARGAINING AGREEMENT AND THAT SUCH
 VIOLATION RESULTED IN THE DENIAL OF A PROMOTION WHICH THE AGGRIEVED
 EMPLOYEE OTHERWISE WOULD HAVE RECEIVED.  THUS, THE AUTHORITY EXPRESSLY
 RULED THAT IN THE CIRCUMSTANCES OF THIS CASE, WHERE THE ARBITRATOR
 SPECIFICALLY FOUND THAT BUT FOR THE ACTIVITY'S FAILURE TO FOLLOW
 PRESCRIBED REQUIREMENTS OF ITS MERIT PROMOTION PLAN THE SELECTING
 OFFICIAL WOULD HAVE ORIGINALLY SELECTED THE GRIEVANT FOR PROMOTION TO
 THE POSITION IN QUESTION, THE ARBITRATOR PROPERLY ORDERED THAT THE
 GRIEVANT BE RETROACTIVELY PROMOTED WITH BACKPAY TO THAT POSITION.
 
    IN ITS MOTION FOR RECONSIDERATION, THE AGENCY GENERALLY REPEATS THE
 ARGUMENTS MADE IN SUPPORT OF THIS EXCEPTION, BUT STATES IN PARTICULAR
 THAT THE DECISION OF THE AUTHORITY WAS INCORRECT BECAUSE IT FAILED TO
 SPECIFICALLY ADDRESS THE DECISIONS OF THE COMPTROLLER GENERAL REQUIRING
 THAT IN ORDER FOR AN AWARD OF BACKPAY TO BE AUTHORIZED, THE COLLECTIVE
 BARGAINING AGREEMENT PROVISION FOUND VIOLATED MUST CONTAIN SPECIFIC
 LANGUAGE MANDATING THE GRIEVANT'S PROMOTION.  HOWEVER, THE AUTHORITY
 FINDS THAT NO BASIS HAS BEEN ESTABLISHED FOR REOPENING OR RECONSIDERING
 ITS DECISION IN THIS CASE.  THE ARGUMENTS ADVANCED IN THE AGENCY'S
 MOTION FOR RECONSIDERATION WERE INITIALLY CONSIDERED AND PROPERLY
 REJECTED BY THE AUTHORITY IN DETERMINING THAT THE AGENCY'S EXCEPTION
 PROVIDED NO BASIS FOR FINDING THE AWARD DEFICIENT.  FURTHERMORE,
 DECISIONS OF THE COMPTROLLER GENERAL IN THIS AREA AND THE CONTENTION
 THAT THE COLLECTIVE BARGAINING AGREEMENT PROVISION FOUND VIOLATED MUST
 MANDATE THE PROMOTION OF THE GRIEVANT, HAVE SUBSEQUENTLY BEEN ADDRESSED
 IN GREATER DETAIL BY THE AUTHORITY IN NATIONAL LABOR RELATIONS BOARD
 UNION, LOCAL 19 AND OFFICE OF THE GENERAL COUNSEL, NATIONAL LABOR
 RELATIONS BOARD, 7 FLRA NO. 7(1981).  IN NLRBU THE AUTHORITY
 SPECIFICALLY REJECTED THE CONTENTION THAT THERE IS A REQUIREMENT UNDER
 THE BACK PAY ACT OR ITS IMPLEMENTING REGULATIONS THAT THE COLLECTIVE
 BARGAINING AGREEMENT PROVISION FOUND VIOLATED MUST CONTAIN LANGUAGE
 MANDATING A PROMOTION IN ORDER FOR AN AWARD OF RETROACTIVE PROMOTION AND
 BACKPAY TO BE AUTHORIZED.  AS IN ITS DECISION IN THIS CASE, THE
 AUTHORITY IN NLRBU EXPLAINED THAT AN AWARD OF RETROACTIVE PROMOTION AND
 BACKPAY IS CLEARLY AUTHORIZED BY THE TERMS OF THE BACK PAY ACT WHEN AN
 ARBITRATOR HAS FOUND THAT THE COLLECTIVE BARGAINING AGREEMENT PRESCRIBES
 CERTAIN ACTION UNDER THE CIRCUMSTANCES PRESENTED AND THE FAILURE TO TAKE
 SUCH ACTION DIRECTLY RESULTED IN AN EMPLOYEE NOT RECEIVING A PROMOTION
 THE EMPLOYEE OTHERWISE WOULD HAVE RECEIVED.  IN ADDITION, THE AUTHORITY
 EXPRESSLY STATED THAT WHEN AN ARBITRATOR HAS SPECIFICALLY FOUND THAT AN
 AGENCY IS REQUIRED UNDER A COLLECTIVE BARGAINING AGREEMENT TO TAKE A
 PRESCRIBED ACTION UNDER STATED CONDITIONS OR CRITERIA AND THAT ITS
 FAILURE TO DO SO DIRECTLY RESULTED IN THE AGGRIEVED EMPLOYEE'S FAILURE
 TO RECEIVE A PROMOTION THE EMPLOYEE OTHERWISE WOULD HAVE RECEIVED, THE
 AUTHORITY, IN ACCORDANCE WITH THE LIMITED REVIEW OF ARBITRATION AWARDS
 UNDER THE STATUTE, WILL NOT RE-EXAMINE OR REINTERPRET THE COLLECTIVE
 BARGAINING AGREEMENT PROVISIONS BEFORE THE ARBITRATOR.  CONSEQUENTLY,
 THE AUTHORITY EXPRESSLY RULED IN NLRBU THAT DECISIONS OF THE COMPTROLLER
 GENERAL IN THIS AREA, INCLUDING DECISIONS CITED AND RELIED ON BY THE
 AGENCY IN ITS MOTION FOR RECONSIDERATION, ARE NOT CONTROLLING IN
 RESOLVING EXCEPTIONS TO ARBITRATION AWARDS UNDER THE STATUTE.
 
    ACCORDINGLY, BECAUSE THE AGENCY'S MOTION FOR RECONSIDERATION DOES NOT
 WARRANT ALTERING OR MODIFYING THE DECISION IN THIS CASE, THE REQUEST FOR
 RECONSIDERATION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., JULY 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AGENCY HAS ALSO FILED A REQUEST FOR ORAL ARGUMENT ON ITS
 MOTION FOR RECONSIDERATION.  BECAUSE THE MOTION FOR RECONSIDERATION IS
 ADEQUATELY PRESENTED BY THE AGENCY'S MEMORANDUM IN SUPPORT OF ITS
 MOTION, THE REQU