30:0562(70)AR - HHS, SSA and AFGE Local 3615 -- 1987 FLRAdec AR



[ v30 p562 ]
30:0562(70)AR
The decision of the Authority follows:


30 FLRA NO. 70
30 FLRA 562

 22 DEC 1987


DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION

              Agency

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3615

              Union

Case No. 0-AR-1334

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Charles Morgan, Jr. The Arbitrator ruled that
the grievance was arbitrable. On the merits, the Arbitrator
determined that the Agency discriminated against the grievant
because of his national origin; failed to consider him fairly for
promotion to a GM-14 Branch Chief position; improperly lowered
his performance rating; and violated the parties' collective
bargaining agreement. The Arbitrator ordered the Agency to
restore the grievant's original performance rating, grant the
grievant a high quality pay increase that had been approved; pay
the grievant backpay at the GM-14 rate; and offer the grievant
promotion to the next available Branch Chief position. The
exceptions were filed by the Agency 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 Union filed an opposition to the exceptions.

     For the reasons discussed below, we conclude that the Agency
has failed to establish that those parts of the Arbitrator's
award finding the grievance arbitrable and ordering restoration
of the performance rating and payment of the high quality
increase are contrary to law or otherwise deficient. Accordingly,
we will deny the Agency's first, second and fourth exceptions. We
further conclude, as to the Agency's third and fifth exceptions,
that the Arbitrator's award of backpay at the GM-14 rate must be
set aside and  that his award directing the Agency to offer
the grievant promotion to the next available Branch Chief
position must be modified.

     II. Background and Arbitrator's Award

     The grievant, a GS-13 Hearings and Appeals Analyst in the
Division of Civil Actions at the Agency, applied for two GM-14
supervisory Branch Chief positions. He and two other candidates
were placed on the Best Qualified lists for both positions. Prior
to filling the positions, two management officials involved in
the selection process asked members of the Appeals Council, the
adjudication branch of the Office of Hearings and Appeals, to
comment on the job performance of the three best qualified
candidates. One of the management officials also had been the
reviewing official on the grievant's performance appraisal.

     It is unrefuted that the members of the Appeals Council are
attorney advisors who adjudicate appeals from decisions of
Administrative Law Judges under the Social Security Act. Appeals
Analysts, such as the grievant, make recommendations to the
Council in those cases. Approximately 70 percent of the cases
assigned to the Analysts for processing are completed without
review by the Appeals Council members. Moreover, the members do
not have any supervisory or performance evaluation responsibility
for Analysts and there is no  provision in the Agency's
performance appraisal or promotion procedures for seeking the
opinion of Council members concerning the quality of the work of
the Analysts. Award at 25-26.

     In response to the management inquiries concerning the work
of the best qualified candidates, eight of the 18 Appeals Council
members commented on the work of one or more of the applicants.
Four commented on the grievant's work. Award at 34. Based on
those comments, which were not as favorable as the comments
concerning the other two candidates, the grievant was not
selected for either Branch Chief position. Additionally, relying
on the comments of the four Council members, the reviewing
official lowered the grievant's latest performance appraisal
rating from Level 4 (outstanding) to Level 3 (excellent).

     The Arbitrator framed the issues for resolution as
follows:

     (1) Is the question of whether a bargaining unit member
because of his national origin has been denied a promotion into a
management (nonbargaining unit) position subject to
arbitration?

     (2) If so, was the Grievant denied a promotion because of
his national origin?

     (3) Was the lowering of the Grievant's performance
evaluation a result of national origin discrimination?

     (4) If the answer to question (2) or (3) is yes, what is the
remedy?

     Award at 1-2.

     Additionally, testimony concerning whether the grievant was
entitled to a High Quality Increase, which the Union argued had
been approved by the Agency in 1983 but had never been
effectuated, was also presented at the arbitration hearing. See
Transcript at 223-29; Exceptions at 6; Union Opposition at 14.

     The Arbitrator first determined that the grievance was
arbitrable. On the merits, the Arbitrator found that the grievant
was discriminated against because of his national origin and that
because of this discrimination he was not fairly considered for
promotion to the GM-14 Branch Chief positions. The Arbitrator
concluded that the Agency violated the parties' collective
bargaining agreement by its actions. The Arbitrator also found
that the testimony of the grievant and the Union's witnesses was
credible and the testimony of a number of the Agency's witnesses
was not credible.

     The Arbitrator further concluded that the grievant's
performance appraisal was improperly lowered to justify not
selecting him for promotion. Award at 35, 47. The Arbitrator
found that the reviewing official initially had signed and made
no  changes in the grievant's performance appraisal of
outstanding. Award at 30.

     He further found that: (1) the members of the Appeals
Council had no  factual bases for their subjective judgments and
had no  common standards to apply to the three best qualified
candidates; (2) no  member of the Appeals Council was familiar
with the work of all three candidates; (3) a number of the
members of the Appeals Council were hostile to the grievant
because of a "fast track" case processing system which the
grievant had developed and management had implemented; and (4)
management had no  legal basis to ask members of the Appeals
Council to include their opinions in the selection process. Award
at 28, 33.

     As his award, the Arbitrator ordered the Agency to: (1)
restore the grievant's original performance rating of Level 4
(outstanding); (2) grant the grievant the High Quality Increase
that was approved on March 18, 1983; (3) pay the grievant backpay
based upon the difference between the amount he would have
received as a GM-14 and the amount he actually received as a
GS-13; and (4) offer the grievant promotion to the next Branch
Chief position that becomes available in the Division of Civil
Actions.

     III. First Exception

     A. Contentions

     The Agency contends that the Arbitrator's finding that the
grievance was arbitrable is contrary to law. The Agency argues
that the determination of which individual to select for
promotion from among a group of properly ranked and rated
candidates is a management right under section 7106(a)(2)(A) and
(C) of the Statute which the Agency could not, and did not,
waive. The Agency further argues that the parties' collective
bargaining agreement does not contain negotiated procedures to be
used to fill management positions and, therefore, that
management's actions with respect to those positions are not
subject to challenge under the negotiated grievance procedure.

     The Union contends that the actions taken by management to
fill supervisory, nonbargaining unit positions are subject to
challenge through the parties' negotiated agreement. The Union
argues that the basis of this grievance is discrimination in
violation of Title VII of the 1964 Civil Rights Act and the Equal
Employment Opportunity and Affirmative Action provisions of the
parties' agreement. The Union also argues that consideration for
promotion is a condition of employment,  even though
promotion would place the grievant outside the bargaining unit.
Therefore, the Union maintains that the Agency's arguments merely
constitute disagreement with the Arbitrator's interpretation of
the parties' agreement.

     B. Analysis and Conclusions

     We find that the Agency has not established that the
Arbitrator's award finding the grievance arbitrable is deficient.
The Agency's assertion that the parties' agreement does not
contain procedures applicable to nonbargaining unit positions is
supported by an examination of the agreement and the Arbitrator's
finding to the contrary is erroneous. The Arbitrator's finding on
this matter is irrelevant, however, because the basis of the
grievance in this case is alleged discrimination in violation of
law and the parties' agreement. Such grievances, unless
specifically excluded by the parties, clearly are covered by
negotiated grievance procedures. See Social Security
Administration, Office of Hearings and Appeals, Kansas City,
Missouri and American Federation of Government Employees Local
1336, 29 FLRA  No.  100, slip op. at 3 (1987); General Services
Administration and American Federation of Government Employees,
AFL - CIO, National Council 236, 27 FLRA  3, 8 (1987). The record
before us establishes that grievances alleging discrimination
were not specifically excluded by the parties from coverage of
their negotiated grievance procedures. Moreover, consideration
for promotion clearly affects the conditions of employment under
section 7103(a)(4) of the Statute.

     The Agency, therefore, has failed to establish that the
Arbitrator's finding that the grievance was arbitrable is
contrary to law. Rather, the Agency's arguments constitute
nothing more than disagreement with the Arbitrator's
interpretation and application of the parties' collective
bargaining agreement. Such disagreement does not provide a basis
for setting aside the Arbitrator's arbitrability determination.
See American Federation of Government Employees, Local 1546 and
Sharpe Army Department of the Army, Lathrop, California, 16 FLRA,
1122, 1123 (1984). Accordingly, the Agency's first exception must
be denied.

     IV. Second Exception

     A. Contentions

     The Agency contends that the portion of the Arbitrator's
award ordering the grievant's performance appraisal raised from Level 3 (excellent) to Level 4 (outstanding) is contrary
to section 7106(a)(2)(A) and (B) of the Statute. Specifically,
the Agency argues that the award interferes with management's
right to assign work and direct employees by substituting the
Arbitrator's judgment regarding what the grievant's performance
evaluation and rating should be.

     The Union contends that the Arbitrator's award merely
enforces the negotiated performance appraisal system principles
in the parties' agreement and reinstates the rating given the
grievant before it was improperly lowered.

     B. Analysis and Conclusion

     We conclude that the Agency has failed to establish that the
award is contrary to section 7106(a)(2)(A) and (B).

     The essence of the Agency's exception is that the Arbitrator
improperly substituted his judgment for that of management as to
what the grievant's performance appraisal should be. However, it
is clear that the Arbitrator did not conduct an independent
evaluation of the grievant's performance and did not improperly
substitute his judgment concerning the evaluation. The Arbitrator
merely ordered that the Agency restore the rating given to the
grievant before it was improperly lowered to justify his
nonselection for promotion to Branch Chief. Award at 35, 47. In
relying on management's own appraisal and ordering it restored,
the Arbitrator expressly found (1) that the grievant's
performance was rated outstanding in every element by his
supervisor; (2) that the reviewing official signed the rating
without any change; and (3) that when the grievant requested
suggestions regarding ways in which to improve his performance,
he was told that there were no  suggestions for his improvement.
Award at 28, 30.

     The Arbitrator also found that the record established that
the Agency's sole basis for lowering the grievant's appraisal
from Level 4 to Level 3 was the comments of the Appeals Council
members, and that the appraisal was improperly lowered to justify
his nonselection for promotion to Branch Chief. Thus, the
Arbitrator's award simply restores to the grievant the rating
which management had previously determined was to be accorded to
the level of performance he had achieved and to which he was
entitled. Accordingly, we conclude that the award is not
inconsistent with section 7106(a)(2)(A) and (B) of the Statute.
The Agency's second exception must be denied.

     V. Third and Fifth Exceptions

     A. Contentions

     The Agency excepts to the promotion and backpay portions of
the Arbitrator's award on two grounds. First, the Agency contends
that the portion of the award directing the Agency to offer the
grievant a promotion to the next available Branch Chief position
is deficient because it is contrary to law and based on a
nonfact. Specifically, the Agency argues that the award violates
management's right to select under section 7106(a)(2)(A) and (C)
of the Statute because the Arbitrator failed to determine that
the grievant would have been selected for either of the Branch
Chief positions for which he applied had the Agency given him
"favorable consideration" because of his national origin. The
Agency also argues that the Arbitrator applied a section of the
parties' agreement dealing with bargaining unit positions.
However, the grievance in this case concerns promotion to a
nonbargaining unit position. Therefore, according to the Agency,
the Arbitrator misapplied the agreement and the award is based on
a nonfact.

     Second, the Agency contends that the portion of the
Arbitrator's award in which he directs the Agency to pay the
grievant backpay at the GM-14 level is contrary to law. The
Agency argues that the Arbitrator did not follow Authority
precedent. Specifically, he did not find that if the grievant had
received the consideration to which he was entitled, that he
would have been selected for promotion to Branch Chief.

     B. Analysis and Conclusions

     With regard to the Arbitrator's award directing the Agency
to offer the grievant promotion to the next available Branch
Chief position, we agree with the Agency that this part of the
Arbitrator's award is contrary to section 7106(a)(2)(C) of the
Statute.

     The Authority consistently has held that management's right
to make the actual selection for promotion can be abridged only
if the arbitrator finds a direct connection between an improper
agency action and the failure of a specific employee to be
selected for promotion. For example,  Veterans
Administration Medical and Regional Office Center, San Juan,
Puerto Rico and American Federation of Government Employees Local
Union No.  2408, 21 FLRA  418 (1986).

     The Arbitrator in this case found that the Agency
discriminated against the grievant because of his national origin
and denied the grievant fair consideration for promotion to the
vacant Branch Chief position. The Arbitrator concluded that the
Agency's improper actions violated the parties' collective
bargaining agreement. However, the Arbitrator did not establish
that the grievant would be selected for the next available Branch
Chief position if the Agency had not acted improperly in the
disputed selection process. Therefore, the Arbitrator did not
make the direct connection necessary to support his award
ordering the Agency to select the grievant for the next position.
Accordingly, we must conclude that this part of the Arbitrator's
award is contrary to section 7106(a)(2)(C) of the Statute.

     However, to effectuate the Arbitrator's award consistent
with the Statute, we will modify the award to provide that the
grievant is to be given priority consideration for the next
available Branch Chief position.

     With regard to the Arbitrator's award of retroactive pay at
the GM-14 level, we agree with the Agency that this portion of
the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C.
5596. In order for an award of backpay to be authorized under the
Back Pay Act, the arbitrator must determine that (1) the
aggrieved employee was affected by an unjustified or unwarranted
personnel action; (2) the personnel action directly resulted in
the withdrawal or reduction of the grievant's pay, allowances or
differentials; and (3) but for such action, the grievant
otherwise would not have suffered the withdrawal or reduction.
Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater
Virginia Federal Employees Metal Trades Council, 21 FLRA  307
(1986). In this case, the Arbitrator determined that the Agency
had violated the parties' agreement by failing to give the
grievant "favorable consideration." The Arbitrator did not,
however, specifically find that but for management's unwarranted
action, the grievant would have been selected for promotion to
Branch Chief. Consequently, we conclude that the award of
retroactive pay to the grievant is contrary to the Back Pay Act.


     VI. Fourth Exception

     A. Contentions

     The Agency contends that the portion of the Arbitrator's
award in which he directs the Agency to give the grievant a High
Quality Increase retroactive to March 18, 1983, is contrary to
law and based on a nonfact. The Agency argues that the grievant
was only considered for a High Quality Increase but that the
increase was never approved. The Agency, therefore, maintains
that the Arbitrator's finding that the High Quality Increase was
approved on March 18, 1983, is erroneous. The Agency also argues
that because the High Quality Increase was never approved, the
grievant was not entitled to it. The Agency further argues that
the grievant did not suffer an unjustified or unwarranted
personnel action.

     The Union contends, as it did before the Arbitrator, that
the record clearly shows that the High Quality Increase had been
approved.

     B. Analysis and Conclusions

     We find that the Agency has not established that the award
is deficient.

     The approval of a high quality step increase under 5 U.S.C.
5336 generally is discretionary with the agency involved. 58
Comp. Gen. 290 (1979). Also, the effective date of a change in
salary resulting from administrative action, such as a quality
step increase, is the date the administrative action is taken by
the administrative officer vested with the necessary authority or
a subsequent date specifically fixed by him. 58 Comp. Gen. at
291. In this case, the Arbitrator concluded that the Agency had
exercised its discretion by finding that the grievant met the
level of achievement under its performance appraisal system
sufficient to entitle him to an incentive award and by
recommending and approving a High Quality Increase. Moreover, the
Arbitrator found, and the record establishes, that a letter
advising the grievant that a High Quality Increase had been
approved and was being processed was signed on March 18, 1983.

     The Agency's contention that the High Quality Increase was
not in fact approved does not establish that the Arbitrator's
conclusion to the contrary is erroneous. The Agency has not
established that the alleged mistake concerned a fact
which was objectively ascertainable, central to the result of the
award, indisputably erroneous and that but for this mistake, the
Arbitrator would have reached a different result. See United
States Army Missile Materiel Readiness Command (USAMIRCOM) and
American Federation of Government Employees, Local 1858, AFL -
CIO, 2 FLRA  433, 438-39 (1980). The thrust of the Agency's
exception is an attempt to relitigate the merits of the case
before the Authority and disagreement with the Arbitrator's
reasoning and conclusions based on the evidence before him. It is
well established that such disagreement does not provide a basis
for finding an award deficient. For example, American Federation
of Government Employees, Local 1917, AFL - CIO and U.S.
Immigration and Naturalization Service, 13 FLRA  68 (1983).
Accordingly, the Agency's fourth exception must be denied.

     VII. Decision

     For the above reasons: (1) the Agency's first, second, and
fourth exceptions are denied; (2) the Arbitrator's award of
backpay to the grievant at the GM-14 level is set aside; (3) the
Arbitrator's aw